MEHTA, J. - (1.) THE brief facts of this case are that accused Mst. Jannat is the married wife of complainant Peer Khan. She had been married to him some 15 years ago. Subsequently Peer Khan fell ill and was admitted to Baran Hospital. Accused Bashir Mohammed, brother of Peer Khan, developed illicit connection with Mst. Jannat during the illness of her husband. Jannat started living with Bashir. Peer Khan, therefore, made a complaint in the court of Sub-Divisional Magistrate, Baran, under sections 497 and 498, I. P. C. , THE Sub Divisional Magistrate by his order, dated November 6, 1970, discharged accused Bashir Mohammad and Mst. Jannat. A revision petition was presented to the court of Additional Sessions Judge, Baran, against the above order. THE relevant portion of the order of learned Additional Sessions Judge runs as below.- "this evidence is sufficient for proceeding with the accused persons under section 498, I. P. C. because from this evidence a prima facie case is made out against both the accused persons. " Both Mst. Jannat and Bashir Mohammad felt aggrieved against the above order and have taken this revision application in this Court. THE revision-petition was admitted only in respect of Mst. Jannat.
(2.) THE only legal point which merits consideration is whether Mst. Jannat can be held liable for the offence under S. 498, I. P. C. In the case of adultery it is distinctly enacted in S. 497, I. P. C. , that a wife is not punishable as an abettor. It is, therefore, inconsistent to punish her as an abettor of the minor offence under S. 498, I, P. C. See in Re:balambal (1 ). Abetment can, as given is S. 107, I. P. G. , be constituted (1) by instigating a person to commit an offence; or (2) by engaging in a conspiracy to commit it; or (3) by intentionally aiding a person to commit it. Abetment implies a certain degree of activity in the abettor. Enticement denotes a state of passivity on the part of the woman and as such none of the ingredients of S. 107, I. P. C. , is likely to be attracted. The last sentence in S. 497, I. P. G. reads: "in such case the wife shall not be punishable as an abettor. This provision obviously appears to be discriminatory to Art. 15 of the Constitution of India. The relevant portion of Article 15 of the Constitution is this : "the State shall not discriminate against any citizen on grounds only of. . . . . . . . . sex. " But clause (3) of the same Article lays down; "nothing in this article shall prevent the State from making any special provision for women. . . . . . It can not be held that clause (3) should be cofined only to provisions which are beneficial to women. The provision which prohibits punishment does not tantamount to a licence to commit an offence. Article 14 of the Constitution is general in nature and has to be read with other provisions of the Constitution, set out in Part III of the Constitution. Sex is a sound classification and the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in section 497, I. P. C. : vide Yusuf Abdul Aziz vs. The State of Bombay (2 ). For the foregoing reasons, learned Additional Sessions Judge, Baran, has taken a wrong decision that Mst. Jannat should also be prosecuted under S. 498, I. P. C. This revision-petition filed by Mst. Jannat is accordingly accepted. The judgement of the court below qua Mst. Jannat is queshed and she is discharged. .;