V. Revathi v Union of India (1988)

The law of adultery as it then stood was built on a lopsided design. Under s. 497 IPC only a man could commit adultery, and the wife could not be punished even as an abettor. Under s. 198(2) CrPC, only the husband of the woman was deemed "aggrieved", so only he could complain. A wife whose husband was unfaithful therefore had no criminal remedy against him.

Revathi is the case in which a wife attacked that procedural bar under Article 14 and lost. The Court's answer is worth knowing in its own words, because it shows how a court could describe a sex-based rule as "even-handed". It also states plainly the classic line on judicial restraint: the Court judges the constitutionality of a law, not its wisdom.

The petitioner, a wife, filed a writ petition under Article 32 (Writ Petition (Crl.) No. 562 of 1986) challenging the constitutional validity of s. 198 CrPC.

Section 198(1) bars a court from taking cognizance of an offence under Chapter XX IPC (offences relating to marriage) except on a complaint by a person aggrieved. Section 198(2) provides that for s. 497 and s. 498 IPC "no person other than the husband of the woman shall be deemed to be aggrieved". The effect was that only the husband of the adulteress could prosecute the adulterer; the wife of the adulterer could not prosecute her husband.

Her plea was that whether or not a husband may prosecute a disloyal wife, a wife cannot lawfully be disabled from prosecuting a disloyal husband, and that s. 198(2), so far as it fetters her, is unconstitutional as discrimination on the ground of sex.

1. Does s. 198(1) read with s. 198(2) CrPC, by confining the right to prosecute for adultery to the husband of the adulteress, discriminate against women in breach of Article 14?
2. Does it matter that the wife cannot prosecute her own husband, when the husband equally cannot prosecute his wife?

The petition was dismissed. Section 198 CrPC was held not to be vulnerable to the charge of hostile discrimination against women.

The argument had already been rejected in Sowmithri Vishnu

The Court relied on Sowmithri Vishnu v Union of India [1985] Supp SCC 137, where the same argument had been raised against s. 497 IPC itself. There Chandrachud CJ had said that the wife involved in an illicit relationship is treated as "a victim and not the author of the crime". Thakkar J observed: "Thus this very argument has already been repulsed by this Court, albeit, in the context of the challenge to Section 497 of the Indian Penal Code." Now "The same bullet has now been fired in order to assail Section 198(2) of the Criminal Procedure Code".

The philosophy: spouses are not armed against each other

The Court read the scheme as keeping the criminal law out of disputes between husband and wife: "social good will be promoted by permitting them to 'make up' or 'break up' the matrimonial tie rather than to drag each other to the criminal court." They may forgive and live together, or seek divorce; "They are not enabled to send each other to jail."

The Court judges validity, not wisdom

"Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the Court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law."

A legislative packet aimed at the outsider

Section 497 IPC and s. 198 CrPC "go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit". The community punishes the outsider who breaks into the matrimonial home, "subject to the rider that the erring 'man' alone can be punished and not the erring woman." The law "does not arm the two spouses to hit each other with the weapon of criminal law."

No discrimination — or discrimination in the woman's favour

"There is no discrimination based on sex." Because the outsider is not punished if she is a woman, "There is thus reverse discrimination in 'favour' of the woman rather than 'against' her." A husband cannot prosecute his wife because she is not treated as an offender; a wife cannot prosecute her husband because s. 198 does not allow it. "In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other."

Conclusion: "The provision in question is therefore not vulnerable to the charge of hostile discrimination against a woman and cannot be successfully assailed from that platform."

Section 198(1) read with s. 198(2) CrPC, which allows only the husband of the adulteress to prosecute the adulterer, does not violate Article 14. Read together with s. 497 IPC, it forms a single scheme that punishes only the outsider to the marriage and deliberately does not let either spouse prosecute the other. Because neither spouse can prosecute the other, the wife's inability to prosecute her husband is not discrimination against her on the ground of sex.

• Direct question: Was the law on adultery under s. 497 IPC and s. 198 CrPC consistent with Article 14? Discuss with case law. Set out the two provisions, then Sowmithri Vishnu (s. 497) and Revathi (s. 198 CrPC), and give the Court's "legislative packet" reasoning and its "reverse discrimination" line.
• Legal language point: note the Court's own images — the "constitutional gun", "The same bullet", "make up" or "break up", and "haul up". They are good examples of metaphor used in judicial writing to frame an argument.
• Judicial restraint: quote the "arbiter merely of the constitutionality of the law" passage whenever a question asks about the limits of judicial review of legislative policy.
• Link: read this case alongside Joseph Shine v Union of India (2018), which cites it, when answering on the constitutional history of adultery law.