Adultery; Sivadasan Vs. State of Kerala [Kerala High Court, 30-03-2016]

Penal Code, 1860 – S. 497 – Husband alone and not the former husband is having the right to file the complaint alleging the offence under Section 497 of IPC against the adulterer.

2016 (2) KLT 855 : 2016 (2) KLJ 781 : ILR 2016 (3) Ker. 81 : 2016 (3) KHC 186

IN THE HIGH COURT OF KERALA AT ERNAKULAM

B.SUDHEENDRA KUMAR, J

Crl.R.P. No. 1220 of 2007

Dated this the 30th day of March, 2016

AGAINST THE JUDGMENT IN CRA 640/2004 of ADDL.SESSIONS COURT FAST TRACK, (ADHOC)-II, KOZHIKODE DATED 03-01-2006 AGAINST THE JUDGMENT IN CC 158/2003 of J.M.F.C.-II(MOBILE) KOZHIKODE

REVISION PETITIONER(S)/REVISION PETITIONER/APPELLANT

SIVADASAN

BY ADVS.SRI.P.T.MOHANKUMAR SRI.A.AHZAR

RESPONDENT(S)/RESPONDENTS/STATE AND DEFACTO COMPLAINAN

THE STATE OF KERALA AND ANOTHER

BY ADV. PUBLIC PROSECUTOR SRI. V.S. SREEJITH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CR

O R D E R

The accused in C.C.No.158/2003 on the files of the Court of the Judicial Magistrate of First Class-II, (Mobile) Kozhikode, filed this Revision petition challenging the concurrent finding of conviction and sentence passed by the courts below under Section 497 IPC. The above case arose out of a private complaint filed by the second respondent herein before the trial court alleging offence under section 497 IPC.

2. The prosecution case can be briefly stated as follows:- The second respondent herein married Shelvi on 8.12.1989 as per the customary rites and ceremonies of the parties. Thereafter, they lived together as husband and wife. Two children were born in the said wedlock. The revision petitioner was an auto rickshaw driver. He used to take the children of the second respondent to the school in his auto rickshaw. The second respondent was a fisherman. He used to go for his work at about 8.00 a.m., and come back to his house only at about 5.00 p.m. The wife of the second respondent, namely, Shelvi alone used to be in the house when the children were sent to the school. While so, the wife of the second respondent developed intimacy with the revision petitioner. It was noticed by PW2 that the revision petitioner spent much time in the house of the second respondent on 5.12.1998. On getting suspicion, PW2 peeped through the half wall of the said house. Then PW2 found the wife of the revision petitioner namely, Shelvi, indulging in sexual relationship with the revision petitioner. PW2 warned him not to repeat the same. On 27.12.1998 also, PW2 and another person witnessed sexual relationship between the wife of the second respondent and the revision petitioner. On seeing PW2 and the other person, the revision petitioner ran away from there. The matter was informed to the second respondent herein by PW2 and the other person. The revision petitioner was well aware that Shelvi was the legally wedded wife of the second respondent. The above said act of the revision petitioner was without the consent or connivance of the second respondent herein.

3. Before the trial court, PW1 and PW2 were examined and Ext.P1 was marked for the complainant. No evidence was adduced on the side of the revision petitioner.

4. The trial court, after considering the evidence on record, found the revision petitioner guilty under Section 497 of I.P.C., and convicted him thereunder and sentenced him to rigorous imprisonment for one year and a fine of Rs.2000/- with a default clause for simple imprisonment for two months. The appeal filed against the said conviction and sentence was dismissed by the appellate court.

5. Service is complete on the second respondent. However, there is no appearance for the second respondent.