The Delhi High Court on 11th May 2026 allowed the criminal appeal filed by Kamal Kapoor in CRL.A. 844/2013 and acquitted him of the offence under Section 497 of the Indian Penal Code. Justice Vimal Kumar Yadav, while delivering the oral judgment, observed at the outset that the facts of the case reflected a modern-day parallel to the ancient Mahabharata-era socio-religious custom known as ‘Niyog Pratha’, which was practised when a man was childless or unable to procreate. In that custom, a married woman with the consent of her husband or family would appoint another man solely for the purpose of conceiving a child to continue the lineage, and the relationship would end once the purpose was fulfilled. The Court noted that similar arrangements or customs have existed in modern times in various communities in the world.
In the instant case also some sort of similar arrangement was worked out between the complainant side and the appellant, whereby the victim reportedly agreed rather invited the appellant to impregnate the prosecutrix since the husband of the prosecutrix was not virile enough. Some sort of contract, though oral, was there as has come during the evidence. The appellant along with his wife was a tenant in the house of the prosecutrix. In the month of November 2006, according to the allegations, the wife of the appellant offered ‘Gajar Ka Halwa’ to prosecutrix, who lost her consciousness after consuming the same. When she regained her composure she found herself without the shred of cloth and realized that the appellant, with the help of his wife, had raped her. She could not raise alarm or pick up the issue as she was threatened with dire consequences in which her nude videos were to be misused. A female child was born. The appellant, however, continued to rape the prosecutrix. The appellant’s version is that desire of a male child was the reason which persuaded the prosecutrix to continue with the arrangement. Demand of Rs. 1,00,000/- and 25 sq. yards of land was also made by the appellant out of which Rs. 25,000/- was paid by the prosecutrix and on 12.10.2009 another sum of Rs. 50,000/- was paid. This led to the registration of FIR No. 112/2010 under Sections 376, 378, 506 read with Section 34 IPC in which the wife of the appellant was also roped in.
Both the appellant and his wife were charged under Section 376, 384 read with Section 34 IPC, wherein the wife of the appellant was charged under Section 109 IPC. The trial court acquitted both the appellant and his wife under Sections 376 and 384 IPC whereas the appellant alone was held guilty for the offence under Section 497 IPC with which he was not initially charged. He was sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 20,000/-, in default of which he was to undergo simple imprisonment for 9 months.
Counsel for the appellant submitted that Section 497 IPC has since been declared unconstitutional by the Supreme Court in Joseph Shine vs Union of India (2019) 3 SCC 39, therefore something which has been declared ultra vires to the Constitution cannot be made a basis to convict and punish anyone. Reliance was placed on Ashok Kumar Singh vs. State (2025) SCC OnLine Del 2456 to contend that the declaration has retrospective effect. The learned APP for the State, noting the legal position post Joseph Shine, did not have anything else to say. The Court held that the Supreme Court in Joseph Shine found Section 497 IPC to be unconstitutional being violative of Articles 14, 15 and 21 of the Constitution of India and the procedure prescribed in Section 198(2) Cr.P.C. has also been declared unconstitutional. In terms of Article 141 of the Constitution, the law laid down by the Supreme Court is binding on all courts. In view of the aforesaid circumstances, the impugned judgment convicting the appellant under Section 497 IPC cannot be sustained as the Section itself has been declared unconstitutional and no longer part of the statute. Since the retrospective effect of the Joseph Shine judgment encompasses the present appeal as well, the appellant is to be acquitted of the charge. Bail bonds stand discharged and original documents filed on behalf of the surety shall be returned under acknowledgment. The appeal stands disposed of accordingly.
Case Title: Kamal Kapoor v. State
Case No.: CRL.A. 844/2013
Coram: Justice Vimal Kumar Yadav
Date of Judgment: 11th May, 2026
Click HERE for full Judgment.
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