Decided on October 28,1952

In Re: C.S. Subramaniam Appellant
STATE Respondents


Govinda Menon, J. - (1.) THE Charge against the petitioner before the Court of the Additional First Class Magistrate of Erode was that he, between October 1943 and 16 -5 -1949, at Gobichettipalayam. committed adultery with one Dr. Suguna Bai, knowing that she is the wife of one Dr. P. V. Ramchandra Reddi, the complainant, and without the consent of the said Ramchandra Reddi, and thereby committed an offence punishable under Section 497, I. P. C. He was found guilty of the offence and sentenced to rigorous imprisonment for six months. On appeal, the learned Additional sessions Judge of Coimbatore confirmed the conviction and sentence. Hence this revision.
(2.) MR . Panchapakesa Aiyar J. before whom the revision came on for hearing on 13 -3 -1951, directed the case to be posted before a Bench of two Judges as according to the learned Judge, Section 497, I. P. C. perpetuates a discrimination solely on ground of sex and as such is repugnant to the provisions of the Indian Constitution, viz., Article 13(1) read with Article 15(1). It was for the purpose of deciding the validity of Section 497, I. P. C. and its repugnancy in relation to the Articles of the Constitution that the reference was made. The learned Judge overlooked the fact that the offence complained of had been committed before the coming into operation of the Indian Constitution. Both the learned counsel for the petitioner and the learned Public Prosecutor conceded that no question of fundamental rights arises in this case, as the alleged offence took place before 26 -1 -1950. Under Section 497, I. P. C. whoever has sexual intercourse with a person who is, and whom be knows, or has reason to believe, to be, the wife of another man, without the consent or connivance of that man, commits the offence of adultery, if such sexual Intercourse does not amount to rape.
(3.) THE complainant had been married to one Dr. Suguna Bai on 26 -1 -1940 under the Special Marriage Act (3 of 1872) at Madras. From the evidence of P. W. 1, the complainant, it appears that the wedded life of the parties had not been a happy one. It is in evidence that both the husband and wife were members of the Communist Party and that they are interested in the activities of that party. The petitioner who was a friend of both the spouses, was also a member of the Communist party and Knew them very intimately. The relations between the married couple became very much estranged from 1942 onwards and the inference that can be drawn from the prosecution case is that the husband allowed the wife to lead her own life without much interference on his part. From 1946 the wife was in different places on private as well as on Government service. It is further alleged that in the second week of October 1946 the wife went away from the house of the complainant at Madras without his knowledge and in spite of diligent enquiries made by the complainant he could not know her whereabouts till the end of December 1946. In May 1948 it is alleged that the differences between both of them were patched up In the presence of a respectable mediator; but even after that, the estrangement continued. Ex. p. 2 is a copy of the petition in O. M. S. No. 22 of 1948 filed by the complainant on the Original Side of this Court under Section 17 , special Marriage Act and Section 10, Indian Divorce Act for a dissolution of the marriage on the ground of the wife's adultery with one Mr. G. p. That petition was withdrawn sometime in July 1949. P. W. 1 says that though he had sufficient evidence that his wife committed adultery with Mr. G. P. He withdrew the suit at the advice of his lawyer. The complaint in the present case was filed on 16 -5 -1949 before the withdrawal of that application. Both the lower Courts have found that the accused and Dr. Suguna Bai were living together In house No. 13 Cutchery Street, Gobichettlpalayam, that no other person lived in that house that both of them had one and the same mess and that both of them used to sleep in one and the same room. On this evidence it was found that the only inference is that the accused committed an offence under Section 497, I. P. C.;

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