W the wife, being dissatisfied with her husband left his house…voluntarily…went to ‘P’ who allowed her to stay in his house as ‘mistress’. What offence if any committed by ‘P’ and 'W'.

Question: W the wife, being dissatisfied with her husband left his house and protection voluntarily and of her free will. She went to ‘P’ who allowed her to stay in his house as ‘mistress’. What offence if any committed by ‘P’ and ‘W’. (D.J.S. 1991)

Find the answer to the mains question only on Legal Bites. [W the wife, being dissatisfied with her husband left his house and protection voluntarily and of her free will. She went to ‘P’ who allowed her to stay in his house as ‘mistress’. What offence if any committed by ‘P’ and ‘W’. (D.J.S. 1991)]

Answer

Section 498 of the Indian Penal Code lays down:

“Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man or from any person having care of her on behalf of that man, with the intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.”

So following are the ingredients of this Section :

1. The woman in question is the wife of another man.
2. She was under the care of her husband or of someone on his behalf.
3. The accused enticed or took away from her husband or that other person or detained her.
4. The accused knew or had reason to believe that she was the wife of another person.
5. The accused detained or enticed or concealed such a woman with the intent that she might have illicit intercourse with some person.

In D.R. Kumthekar v. State, AIR 1967 Punjab 330 While relying upon Supreme Court decision in Alamgir v. the State of Bihar, reported in AIR 1959 SC 436 It was observed

“The provisions of Section 498 like those of Section 497 are intended to protect the rights of the husband and not those of the wife. The gist of the offence under Section 498 appears to be deprivation of the husband of his custody and his proper control over his wife with the object of having illicit intercourse with her.

The consent of the wife to deprive her husband of his proper control over her would not be material. It is the infringement of the rights of the husband with the intention of illicit intercourse that is an essential ingredient of an offence under Section 498…Word 'detention’ in the context of Section 498 means keeping back a wife from her husband. For this Section 498 such keeping back, need not be by force, it can be the result of persuasion, allurement or blandishments which may either caused the willingness of the woman or may have encouraged or cooperated with, her initial inclination to have her husband.”

However, the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676, struck down sections 497 and 498 as unconstitutional. The court decriminalized adultery and also struck down section 198 (2) of the Code of Criminal Procedure (CrPC) which considered only the husband of the woman as aggrieved under IPC sections 497 or 498.

So, as per the recent amendment in IPC, ‘P’ and ‘W’ have not committed any offence.

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