NON-REPORTABLE IN THE SUPREME COURT OF INDIA

              CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2232 OF 2011

(ARISING OUT OF SLP (CRIMINAL) NO.648 OF 2010)

   W.KALYANI ….APPELLANT VERSUS

  STATE TR.INSPECTOR OF POLICE & ANR. …RESPONDENTS WITH

SPECIAL LEAVE PETITION (CRIMINAL) NO.3856 OF 2010 AND

SPECIAL LEAVE PETITION (CRIMINAL) NO.2450 OF 2010

J U D G M E N T  

Aftab Alam, J.

1. Delay condoned in special leave petition (criminal)  No.3856 of 2010.

2. The Andhra Pradesh High Court by its judgment and  order dated November 2, 2009 quashed the proceedings  arising from a criminal complaint in respect of accused  nos. 5, 6 and 9 but declined to interfere in favour of

accused  No.8  in  the  complaint.  These  three  Special  Leave  Petitions  arise  from  the  same  judgment.  SLP  (Crl.)  Nos.2450/2010  and  3856/2010  are  filed  by  the  complainant who is aggrieved by the order insofar as it  quashed the proceedings against accused Nos. 5, 6 and 9  and SLP (Crl.) No.648 of 2010 is filed by accused no. 8  whose petition for quashing was dismissed by the High  Court.

3. On hearing counsel for the parties and on going  through the materials on record, we find no merit in  SLP (Crl.) Nos.2450 of 2010 and 3856 of 2010. These two  special leave petitions are dismissed.

4. Leave granted in SLP (Crl.) No.648 of 2010 filed by  accused No.8 in the complaint.

5. Gummadi  Sailaja  filed  a  complaint  against  nine  accused  under  Sections  498-A,  386,  341  read  with  Section 34 of the Indian Penal Code. Accused no. 1 is  her  husband  and  accused  no.2,  her  mother-in-law.  Accused No.3 is the younger brother of her husband and  

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accused No.9 is his wife. Accused No.4 is the maternal  uncle of the husband of the complainant. Accused No.6  and accused No.5 are husband and wife and they along  with accused No.7 are said to be close friends of the  complainant’s husband who actively participated in her  marriage with her husband. Accused No.8, the appellant,  is described in the complainant as the girl friend of  the  complainant’s  husband  with  whom  he  had  illicit  sexual relations.

6. It is stated in the complaint that the complainant  came in contact with accused No.1 through a matrimonial  site on the internet. At that time accused No.1 was a  software engineer working in the US and she had herself  done M. Phil.  They agreed to marry and accused No.1  promised that he would not ask for any dowry. However,  when  his  mother,  accused  No.2,  came  to  know  of  the  proposal she demanded a sum of Rs.10,00,000/- (Rupees  Ten Lacs only)and 50 sovereigns of jewellery as dowry.  The complainant and her people did not wish to miss her  match  with  accused  No.1  and  she  also  believed  that  

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accused No.1 was not aware of the demand made by his  mother. She, therefore, agreed to meet the demand of  accused No.2 and their marriage took place in the night  of  February  3-4,  2007.  After  marriage  they  stayed  together in his house at Visakhapatnam. After a few  days she was taken to Tirupati for ‘darasanam’ of Lord  Venkateswara. Accused No.8 also accompanied them and it  is further alleged that her husband and accused No.8  moved together very freely as if they were spouses. The  specific allegations against accused No.8 in the words  of the complainant are as follows:

“Along with them one Kalyani also followed to  Tirupathi with whom the A1 moved very freely as  if she were his wife. Kalyani said to be the  girl friend of A1, moved with A1 very freely as  if they were wife and husband and used to sleep  in one cot keeping the complainant outside the  room.”

The complaint goes on that her husband, accused No.1,  took her to Florida, USA where she was subjected to  great harassment and cruelty. In January 2008 he lost  his job in the US and came back to Hyderabad.  Here  again there is a long narrative of the cruelty meted  

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out to the complainant in connection with the demand  for further dowry and to get her consent for divorce  under duress and coercion and physical assault. What is  however, significant to note is that in the latter part  of the complaint there is no mention of accused No.8  and  she  seems  to  figure  only  during  the  visit  to  Tirupathi.  

7.  The police after investigation submitted charge- sheet against all the accused. In the police charge  sheet the different accused are charged differently. So  far as the appellant is concerned, she is charged under  Sections 341 and 497 of the Penal Code. Section 497  deals  with  the  offence  of  adultery  and  provides  as  follows:  

“Whoever has sexual intercourse with a person  who  is  and  whom  he  knows  or  has  reason  to  believe to be the wife of another man, without  the  consent  or  connivance  of  that  man,  such  sexual intercourse not amounting to the offence  of rape, is guilty of the offence of adultery,  and  shall  be  punished  with  imprisonment  of  either description for a term which may extend  to five years, or with fine, or with both. In  such case the wife shall not be punishable as an  abettor.”

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The provision is currently under criticism from certain  quarters for showing a strong gender bias for it makes  the position of a married woman almost as a property of  her husband.  But in terms of the law as it stands, it  is evident from a plain reading of the Section that  only a man can be proceeded against and punished for  the offence of adultery. Indeed, the Section provides  expressly that the wife cannot be punished even as an  abettor. Thus, the mere fact that the appellant is a  woman  makes  her  completely  immune  to  the  charge  of  adultery and she cannot be proceeded against for that  offence.

8. As regards Section 341 of the Penal Code, on the  basis of the allegation made in the complaint, we fail  to see how the charge of wrongful restraint can be made  out against the appellant.  

9. All the allegations in the complaint taken on their  face  value  do  not  make  out  any  case  against  the  

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accused.  We  are,  therefore,  satisfied  that  the  proceedings against the appellant are equally fit to be  quashed and the High Court was in error in not allowing  the quashing application filed by the appellant. We,  accordingly, set aside the order of the High Court and  quash the proceedings of CC No.482 of 2008 on the file  of  the  First  Additional  Judicial  First  Class  Magistrate, Amalapuram, East Godavari District, arising  out of Crime No.80 of 2008 of Ainavilli Police Station  insofar as the appellant, accused No.8 is concerned.  

10. In the result, the appeal is allowed.

 …………………………………………………………J.

    (Aftab Alam)

……………………………………………………………J.      (R.M. Lodha)

New Delhi, December 1, 2011.  

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