Section 497 of hindu marriage act.
shrikant v. sathe
(Querist) 18 July 2018
This query is : Resolved
Sir,
My friend had taken a divorce from his wife in 2007 . The causes were ,adultery and mental cruelty .Her wife ran away with paramour 3 times and lived with him in rental houses in different cities and villages. The friend got ex parti divorce because wife was present because she and her paramour were absconded Now it has been 11 years passed for their absconding. As the concerned paramour has ruined my friends family establishing physical relationship with his wife, my friend wants to teach him a lesson by lodging against him a police case.I have read that there is a conviction 5 years jail and fine so there will be no limitation period if the conviction is above 3years . So can he make a police complaint against that paramour after 11 years of his divorce
Vijay Raj Mahajan
(Expert) 18 July 2018
No police complaint as it is not cognizable offence under section 497 Indian Penal Code.
Secondly this private criminal complaint will require proof independent to what was placed if any in the divorce proceedings. Proof of the wife and the paramour indulging in actual sexual relationship.
To file and get the paramour prosecuted his actual presence will be required and if he along with the divorced wife still absconding how he can be prosecuted in the court for the criminal offence?
K Rajasekharan
(Expert) 18 July 2018
Your friend cannot file a complaint against the person for adultery as he is no longer the husband of the lady with whom the person had alleged sexual intercourse amounting to adultery.
The Section 497 of the IPC and the Section 198 of the CrPC are the sections that deal with the offence of adultery.
In order to prove adultery, the husband has to prove that the other person had sexual intercourse with her wife. Direct evidence is not needed in every case, if there is some ocular evidence and corroborative circumstances that go beyond mere suspicion but to convince the court the possibility of sexual intercourse, as pointed out in some judgements.
shrikant v. sathe
(Querist) 18 July 2018
Dear Rajasekharan,
Thanks for your reply , but the fact is that the adultery occurred when there was no divorce .The friend first took divorce against adultery and mental torture. Then he does not know the law about what to do with her paramour .But when he read about it on the website of Hindu marriage Act he comes to know that.So he went to the police ,but police deny to accept the complaint and advised him to go to criminal court.As the adultery has been done by both when friend,s marriage was sustained . Now the action against wife has been done as taking ex parti divorce as they both are absconding for 11 years , only action against that paramour remains. The limitation act does not come as hindrance because the conviction as per 497 is above thee years imprisonment . The family court has admitted the adultery of his wife and her paramour . .Sir awaiting for your reply.
K Rajasekharan
(Expert) 19 July 2018
Offences like 497 IPC are private offences which the State is not much concerned about as public offences like rape or murder which are considered to be offences against public at large. So your friend has no much chance for punishing the adulterer through criminal court which would take a lukewarm attitude towards this matter of a decade ago.
If your friend had filed the case when she was his wife, the court would have accepted the case as usual. But now your friend is no longer her husband. Therefore I don’t think your friend has any chance to make the case proceed regularly.
Guest
(Expert) 20 July 2018
If your friend took divorce on the basis of adultery, why the matter was not taken up side by side against the offender?
