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in India were considered the property of the men, and the offence on adultery given under s 497 is a clear reflection of this. Adultery is basically an act of having sexual relations outside marriage. This article aims to critically analyze the gender biasness in the definition of adultery given under s 497 keeping in view the changing circumstances and the now legalized homosexuality. The author finally proposes an unbiased definition of adultery which could be introduced under s 497 The Law of Adultery in India: S 497 of the Indian Penal Code, 1860 states that: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” The Judicial Pronouncements on Validity of the Law: The constitutional validity of the law of adultery in India has been challenged a number of times but the court has upheld its validity and also the ‘classification’ made under it. In the case of Yusuf Aziz v. State,  the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution. It does not offend articles 14 and 15 of the Constitution of India. In case of V. Revathi v. Union of India and Ors,  the court held that that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. In case of Sowmithri Vishnu v. Union of India and Anr , the court held that the contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a
victim and not the author of the crime. Analysis of the definition: Now on analyzing the definition from beginning to end, we find the very second line of this section mentions the phrase ‘wife of another man.’ And here appears the very first point of gender discrimination. This phrase gives an idea that a married man having sexual relations with an unmarried woman will not be guilty of committing adultery. The offence of adultery has been kept under the chapter titled ‘offence relating to marriage’ because this offence hits at the very root of the institution of marriage destroying the sanctity of a marital relation. And to preserve the sanctity of the marriage is not the duty of just one spouse rather both husband and wife. But the language of this section gives a feeling that if the husband of the lady, with whom the person convicted of adultery had sexual intercourse, had given his wife his consent to have relation outside marriage then her wife’s relation with a third man will not destroy the sanctity of their marital relationships which is not true. Also, this discriminates between husband and wife as partners to a marriage since it does not include ‘husband of another woman’ exonerating the female partner in the extra-marital relation of the charge of adultery. The next phrase mentions ‘without the consent or connivance of that man’ which clearly indicates that adultery is not an offence per se but is an offence only when the husband of the adulterer did not consent to it and also that the consent of the wife of person convicted of adultery is not considered in deciding whether her husband has committed adultery or not. This once again discriminates between the two sexes by not considering the consent of the wife of the person convicted of adultery in deciding whether her husband who had had sexual relations outside marriage is guilty of the offence of adultery or not. The argument generally given in favor of this definition is that the inheritance of children of marriage is altered when wife beget children from a man other than her husband. Firstly if that is the case then even if husband consents, the inheritance will be altered and secondly if it actually about begetting children, a wife can also consent to extra marital relation of her husband to allow the other women to beget a child for her and her husband. And so, even the consent of this woman should be taken into consideration. Also as far as the opinion of the court that ‘the law permits neither the
husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her’ is concerned then why the consent of the husband and not of the wife is given importance in deciding the offence. Now today when even the courts have discussed matters like live in relationships and have secured the rights of the female partner in a live in relationship to property of her male partner and also discussed the matter of homosexuality and have decriminalized consensual nonvaginal sexual acts between adults the Legislature should come up with a definition which even punishes a man who has had sexual relation with a married man because the current definition fails to do so. The last line of this section mentions ‘in such case the wife shall not be punishable as an abettor’. In support of this the Supreme Court held that woman is neither the seducer nor the author of the crime but the victim. . But this view does not hold correct in the present time. But at the same time the allegation, put forth by many critics, that this act only holds the male partner to sexual intercourse guilty of adultery is not true as even where a female is having sexual relation with ‘wife of another man’, even she will be guilty. And so it cannot be said that this definition discriminates between men and women in holding them guilty of adultery. Proposed amended definition: When the Legislature comes up with an amended version of s 497 it should necessarily take all the above mentioned points into considerations. The author, after keeping in mind all the above lacunas of the law, has come up with a modified definition of adultery which is as follows: “Whoever voluntarily has sexual intercourse with a person, who is and whom he knows or has reason to believe to be the spouse of another person, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. Explanation: the word ‘spouse’ here would mean a husband or wife.” Conclusion: The need to amend the law on adultery in India has not been felt in a few years rather jurists and lawyers have been pressing the need for amendment since decades. The courts have held that they cannot strike
V. Union of India (UOI) and Ors. with immediate affect. Revathi v. while arresting female person. AIR1988SC835.. Apex court further observed that while it is necessary to protect the female sought to be arrested by the police from police misdeeds. in the given circumstance. whilst agreeing with the object behind the direction issued by high court. Therefore the Legislature should. AIR1985SC1618.  AIR1951Bom470  AIR1988SC835  AIR1985SC1618  V. In Christian Community Welfare Council of India v. Union of India (UOI) and Anr. bring an amendment into the law of adultery and remove the gender biasness of this law.  Naz Foundation v. T. But apex court said that it may not be always possible and practical to have the presence of a lady constable when the necessity for such arrest arises.) Bombay High Court.down a section on the ground that it is desirable to delete it. to uphold the dignity of women.. But the paper proposes an amendment to and not a deletion of the section. if any provided by legislation. would cause practical difficulties to the investigating agency and might give room for evading the process of law by unscrupulous accused. opined that strict compliance of the said direction. held that no female persons shall be detained or arrested without the presence of lady constable and in no case.  Sowmithri Vishnu v. after sunset and before sunrise.. State of Maharastra (1995 Cr LJ 4223 Bom. Union of India (UOI) and Anr. Christian Community Welfare Council of India AIR 2004 SC 7). 2010CriLJ94  Sowmithri Vishnu v. M. Under Article14 of Indian constitution men and women are equal but simultaneously Article15 (3) empowers the state to make provisions in favour of women owing to her vulnerability. all efforts should be made to keep a lady constable present but in circumstances where the arresting officers is reasonably satisfied . Government of NCT of Delhi and Others. AIR1985SC1618. Alavi v. To remove these disabilities and to countenance her modesty legislature enacted many enactments and courts bridge the gap. Women are more prone to crime owing to biological facts. But apex court in appeal (State of Maharastra v. Safia. Therefore apex court decided to modify the direction issued by Bombay High Court without disturbing the object behind the same and held that arresting authority. AIR1993Ker21.
sub-section 4 in section 46 of code of criminal procedure. But court of Criminal Procedure (Amendment) Act. Recently. When enactment is mute about this proposition then apex court ruling that in exceptional circumstances women can be arrested by a male officer will prevail. Bina Ramani challenged her arrest in violation of newly inserted (by amendment of 2005) provision. which only the higher court had the power to decide. as there were ambiguities in the law. at day time. So. the woman police officer shall. as newly inserted (by amendment of 2005) sub-section 4 in section 46 of Code of Criminal Procedure 1973 tells that in exceptional circumstances woman can be arrested after sunset but by woman officer with prior permission of judicial magistrate. Newly inserted (by amendment of 2005) Sub-section 4 in Section 46: (4) Save in exceptional circumstances. by making a written report. 2005 seems to be midway between absolute immunity invented by Bombay High Court and practical approach adopted by Supreme Court. Kamini Lau but Ms. Lau got rid of matter by saying that she could not say anything about it. What are ambiguities to be decided Bina Ramani case make it mandatory for us to contemplate about repercussions of violation of procedure enumerated in newly . obtain the prior permission of the judicial magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. But newly inserted provision does not make stance clear about arrest of female at day time: can she be arrested by male officer at day time. Amendment in section 46 unequivocally ratify the view of apex court that in exceptional circumstances woman can be arrested after sunset and before sunrise but newly inserted provision overrides the judgment by making it mandatory that arrest after sunset and before sunrise can be made only by women officer with prior permission of judicial magistrate of first class. before Additional Metropolitan Magistrate Ms. no women shall be arrested after sunset and before sunrise. women can be arrested by a male officer. in exceptional circumstances.that presence of a lady constable is not available or possible and / or the delay in arresting caused by securing the presence of a lady constable would impede the course of investigation such arresting officer for reasons to be recorded either before the arrest or immediately after the arrest be permitted to arrest a female person for lawful reasons at any time of the day or night depending on the circumstances of the case even without the presence of a lady constable. and where such exceptional circumstances exit.
most vulnerable group of society. sub-section 4 in section 46 of Code Of Criminal Procedure 1973. indulgence of women in drug trafficking. i. any illegality or irregularity in arrest will not oust the jurisdiction of the court to try the offence. A moot point is what would be the implications of enactment of sub-section 4 of section 46? Article 21 of Indian constitution says: 21. and court directives. non availability of lady police officers. love and commitment. Question also arises if woman is arrested by female officer after sunset and before sunrise in breach of sub-section 4 of section 46 then what would be the repercussion. The circumstances that contribute to the fracturing of the intimate bond. to danger of masculine misdeeds.. It means arrest made in breach of law can be challenged under Article 21 but it appears from above. does not effect the question whether the accused person was guilty or not guilty of the offence with which he is charged. spiritually and sexually in an enduring union based on common values. an extra-marital relation.No person shall be deprived of his life and personal liberty except according to procedure established by law. In Subramania Chetty Re (Air 1941 Mad.mentioned decided authorities that the accused can not be released on this ground nor it can be treated as ground for bail.e. Protection of life and personal liberty. Question may be raised whether article 21 can be invoked. Extra-marital Relations and its Impact on children Marriage is the unique bond between two people that links them together emotionally. are diverse but most often involve transferring of emotional energy that was once directed to . Apex court in Mobarik Ali Ahmed V. Now days when there is upsurge in crime by women. implementation of such kind of provision is not practical but at the same time we can not expose the women. Apex court further observed that if the court has jurisdiction to try an offence.inserted (by amendment of 2005) provision. if woman is arrested by male officer without any mala fide intention on his part and without any filthy activity. Still can she claim compensation? In pursuant of above-mentioned propositions it seems that newly inserted sub-section 4 is directory in nature owing to absence of repercussions of breach of provisions. But compensation may be claimed for violation of sub-section 4 of section 46. State Of Bombay (AIR 1957 SC 857) held that a trial will not be void simply because the provisions relating to arrest have not been fully complied with.. 181) court opined that the question whether the police officer making the arrest was acting within or beyond his powers in effecting the arrest.
Importance Of Parental Fidelity And Family Structure. the most important post-divorce problem with which .” In other words. but if the husband “associates with women of evil repute or leads an infamous life. Under the Dissolution of Muslim Marriages Act. adultery as such is not a ground for divorce. except the Parsi Marriage and Divorce Act. In Shivakumar v Premavathi it was held that stamping the child as an outcome an adulterous relation or charging a woman for extramarital intercourse is a serious thing with legal consequences. The case of Sunil Eknath Trambake v Leelavati Sunil Trambake clarified that in the matter of proving the paternity of a child.the marital harmony and for the family and children to other sources such as career and outside interests and friends. under the Hindu Marriage Act. No woman can be blamed for an adulterous relation relationship and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions. This seems sometimes akin to living in adultery. 1. Section 32 (d) of Parsi Marriage and Divorce Act. Obviously. Extra marital relationships such as these begin benignly but may later evolve by becoming sexual posing a serious threat to the primary marital relationship.1936 and under Section 10 of the Indian Divorce Act . higher standard of proof than mere preponderance of probabilities is required as was held in Partap v Veena 2. the spouse who engages in extra-marital intercourse is guilty of adultery. Under these conditions people may re-connect emotionally and spiritually with someone outside of their relationship by fulfilling ones need for acceptance and understanding.The ground for getting a decree for divorce on the grounds of adultery is provided as :“The Respondent has after solemnization of marriage. confers any such corresponding right on the husband to dissolution of marriage for extra-marital sexual relations maintained by the wife. a DNA test can be ordered only in exceptional and deserving cases if it is in the interest of the child. as such. The charge of adultery is serious as it casts aspersions on the character of the spouse affecting his/her reputation in the society besides raising question marks in terms of the parentage of the child delivered by the wife.” it amounts to cruelty to wife and she can sue for divorce on that ground. But none of these enactments. section 27(1)(a) of Special Marriage Act. therefore not only the charges of adultery should be specific but also should be established in all probabilities. are in the nature of quasi-criminal. The proceedings for adultery. had voluntary sexual intercourse with any person other than his or her spouse. Impact Of Extra-Marital Relation On The Legal Marriage Adultery is a ground for divorce under Section 13(1)(i) of Hindu Marriage Act.
a process that forever changes the lives of the people involved. The child’s distress may take the form of school related problems." Attachment theory of divorce: Children usually lose a degree of contact with one of their very few attachment figures when a divorce occurs. Actually. healthy and well adjusted child .Mike the Supreme Court of Hawaii stated that: The father and the mother offer different and complementary cognitive and emotional organizations of the world to the infant. In Ninia Baehr v Lawrence H. and (3) the parents' ability to focus on the needs of children in their divorce.The Supreme Court gave a judicial message in the case of Gaurav Jain v Union of India that children are innocent and abandoning of the child by one of the parents. and access to children. Legally it is a single event. bullying.the individual and society are most vitally concerned is the problem of finding adequate solutions to matters concerning custody. Moreover experts found. excluding a good foundation of life for them. after witnessing the hostile environment at home and the parental animosity resulting from the extra-marital of either of the parents. or they may sense rejection and feel they have done something wrong. victimization and sometimes even health related illness. relocations. It is a confusing and stressful time for children. . The child. "Divorce is deceptive. education. 3. is a crime against humanity.” The importance of parental fidelity to the psychological well-being of children cannot be underestimated. maintenance of. These are the matters which affect significantly the children and parents emotionally and socially . children's psychological reactions to their parents' divorce vary in degree dependent on three factors: (1) the quality of their relationship with each of their parents before the separation. While an affair is taking place children sense that the parent is expending emotional energy outside the family. Divorce: Psychological Impact On The Children. and radically shifting relationships strung through time.The benefit to children which come from being raised by their mother and father are maximum in an intact and relatively stress free home. As a result the children may become anxious or frightened. breaks down under the strain of conflict. depression. (2) the intensity and duration of the parental conflict. eventually. An intact family environment consisting of a child and his or her mother and father presents a less burdened environment for the development of a happy. anxiety. such children are prone to have affairs themselves when they marry. but psychologically it is a chain sometimes a never-ending chain¬ of events.
low self-esteem. Poor school performance. an illegitimate child born out of an extra-marital relation is still exposed to enormous social. Despite international and national conventions prohibiting discrimination against any child and imposing responsibilities on parents. . This serves to alter attachment style negatively.While the parents can foresee the consequences of their socially and legally disapproved alliance in the form of extra-marital relation. early sex activity and continued academic issues. the child has no choice in the matter. the parents being terribly selfish as to who is most responsible often forget they are being observed at all times. emotional and legal deprivation . They are humans and have their being.” In India this presumption is statutorily recognized under Section 112 of the Evidence Act 1872 which lays down as a general rule of presumption that a child born during the subsistence of a legal . behavior problems. divorces end in ugly custody battles between the parents. In adolescents from divorced families they noted more instances of delinquent behavior. Impact Of Extra-Marital Relation On Children Born Outside The Wedlock. Justice Douglas in 1968 stated that “ illegitimate children are not “non-persons”. It is also important to discuss the outcome of divorce and how it affects children's attachment style. 4. Often times.was that no evidence can be adduced by spouses that no intercourse had taken place between them if the effect of such evidence would be do bastardize the child.1 presumption of legitimacy Under the law there is a presumption in favor of evidence proving legitimacy of a child born during the wedlock. society and state to protect it in every manner. There are many factors that may play into how children's attachments are altered after a divorce. The sharing of the physical company and properties between children born outside wedlock would be at the expense of the family. The rule laid down in Russel v Russel was followed in the case of Premchand Hira v Bai Gopal . Attachment style can be even more afflicted by court battles in which the child has no control over whom he or she goes with.” 4. During this time. This could lead to negative attachment style resulting in no attachment style at all. distress and adjustment difficulties are associated with divorce. The force of this presumption in English law is indicated by the remark “…we may almost say that every child born to a married woman is in law the legitimate child of her husband.regardless of whether the divorce was amicable or not. and thus the peace and stability of the marriage would be threatened. gender and age being the two most documented variables.
The blood-grouping test was an attempt made to prove that the child born to the wife couldn’t be the husband’s and as a conclusion of this the wife had committed adultery.There is no process recognised under the muslim law which confers legitimacy on an illegitimate child.Adoption or any equivalent of the same is not recognized under Mohammedan law. It is an acknowledgement of paternity by his putative father. King in Marchioness of Annadale v Harris :-“If a man says he. Mohammadan Law has made a special provision for conferring legitimacy on or rather recognizing the legitimacy of a child. It was held that under Section 112 of the Evidence Act. . Thus. However mohammadans have adopted measures like “acknowledgement of paternity” which are preventive measures to save the children from being bastardised. if the husband has ‘A’ blood group and the wife has ‘B’ blood group then the child will have either ‘A’ or ‘B’ or ‘AB’ blood group and if the child has ‘C’ blood group then this would prove adultery on grounds of this circumstantial evidence. does mislead an innocent woman. the birth of a child during the continuance of the valid marriage is conclusive proof of the child’s legitimacy. The same was not granted. The case is stronger in . Also. as he would be if his mother could not possibly have been the lawful wife of the acknowledger at any time when he could have been begotten. In a recent judgment of the Supreme Court in the case of Goutum Kundu v State of West Bengal where in an application was filed by the wife for maintenance for herself and her child. The person acknowledged must not be the off-spring of zina .2 Legitimation under Muslim law Muslim law does not recognize putative father for any purpose. which is adultery in Muslim law. W. a decree of divorce was passed in favor of the husband as the white wife had given birth to a child with Negroid feature but the Court did not allow for the blood test as they were of the opinion that it would bastardize the child. Status Of The Illegitimate Child Born Out Of The ExtraMarital Relation Lord Ch .marriage or within 280 days after its dissolution is a legitimate child unless non-access between the parties at the relevant time can be shown. 4. whether a son or daughter by the doctrine of acknowledgement of ikrar . it is both reason and justice that he should make her reparation. Under the islamic law conception during lawful wedlock determines legitimacy of the child . in W v. 5.J. It clings to the concept of “filius nullis”. the husband denied that he was the father and made an application to the court for blood group test of the child to determine the child’s Paternity. as where the mother was at that time the wife of another man .
dignity and care. at such monthly rate. child can be singled out as having been born out of a wedlock. 5. The main provision regarding grant of maintenance is contained in Section 125 of the Code.2. ”The Supreme Court in Gaurav Jain v Union of India has categorically stated that the children have the rights of equality and opportunity. as such Magistrate thinks fit.1973 which is applicable to all communities irrespective of caste and religion. there are provisions for maintenance of children under the personal law statutes as well. such person to make a monthly allowance for the maintenance of his wife or such child. 5. minor children-whether legitimate or illegitimate." Apart from this uniform and secular legislation. upon proof of such neglect or refusal. it might sound logical that the child should be identifiable with the mother.1 Guardianship : The Hindu Minority and Guardianship Act . every child who is unable to maintain itself is entitled to be maintained. and to pay the same to such person as the Magistrate may from time to time direct. protection and rehabilitation by the society with both hands open to bring them into the mainstream of social life without pre-stigma affixed on them for no fault of his/her. order.M Adam v. the mother is the natural guardian and the father comes only after her.However from the child’s perspective discrimination and bias is evident as in a patriarchal set up like ours.2 Hindu law: Under the Section 20 of the Hindu Adoptions and Maintenance Act . Perhaps there is a rational distinction between a child born into a family and one born outside and since such child would normally not be living with the father but with the mother. 5. and laws on guardianship and adoption fall in line with this reasoning .2 Maintenance 5. and for whom. are entitled to be maintained by their father or mother. Gopala Krishnan the Court imposed an obligation on the Muslim father to maintain and support his . In K.2. when the father has occasioned to be brought into the world in this shameful manner. A Magistrate of the first class may.1 Secular law: Under the provisions of the Code of Criminal Procedure . father or mother.1956. An illegitimate child does not get the father’s name. in justice he ought to provide. however under Section 6 (b) the order reverses incase of illegitimate children.1956 under Section 6(a) provides that while in the case of a minor boy or a minor unmarried girl it is the father who is the natural guardian and the mother comes only after the father. Though the word “illegitimate” is specifically mentioned there is no discrimination in the entitlement on the basis of marital status of the parents of the child.respect of an innocent child.
however the child was considered to be a Hindu as one of the parent .illegitimate Hindu child born to a Hindu woman. In Pavitri v Katheesumma a question arose on the maintenance of an illegitimate daughter .till she remains unmarried. Illegitimate sons and daughters are “dependants” under Section 21 of the Act and are entitled to get maintenance from the estate of their putative father under Section 22 – in case of a son till he is a minor and incase of a daughter . 1973. A Christian child is bound to be maintained as per the secular law of the land as provided by the Code of Criminal Procedure. born of a mohammedan male and a hindu woman. In this case the court after referring to cases held that the muslim law does not make any specific provision provide for granting or prohibiting the grant of maintenance to an illegitimate child against the father.3 Adoption Statutory adoption provisions exist only in the Hindu law under the Hindu Adoptions and Maintenance act.3 Muslim law: Application of maintenance to an illegitimate child is strictly prohibited because of the concept of “nullis filuis”. There was no marriage and it was argued on behalf of the father that neither under personal law nor under the provisions of the Hindu adoption and maintenance Act he was entitled to maintain the child. Prior to this act only . The mother is a Hindu. 5. Provisions of the Criminal Procedure Code are a part of the general law of the land which in the absence of any contradictory provision under the mohammedan law is binding on the Muslims as on other citizens of the country. No maintenance was claimed under Section 125 of the Criminal Procedure Code. against his putative father and his assets.i. the secular law governing the country's masses has made it compulsory for parents of illegitimate children to support them (if not the successors of the illegitimate children) in the form of a monthly amount that is to be fixed by the Magistrate.4 Christian law: Even though the codified law of the Christians of India does not speak of maintenance of illegitimate children.2. However in Nafees Ara v Asif Sadat Ali Khan the petition was filed under Section 488 of the Criminal Procedure Code of 1898 claiming right of maintenance for an illegitimate child.1956. does not mean that the civil or criminal court have no jurisdiction to grant maintenance. 5. The court held that the mohammedan law imposes no burden of maintenance of an illegitimate child on the putative father. An illegitimate child is not entitled to be maintained by either parents under the shia law and only from mother under the hanafi law. 5.2.e. The main provision regarding grant of maintenance is contained in Section 125 of the Criminal Procedure Code.
could not be fulfilled in the case of an illegitimate child. the child given in adoption by a woman was her husband's child and the husband was incapable of giving assent. Apart from the legal recognition of the difference in status of a child born within and outside wedlock. the illegitimate child has no father and thus even where a putative father is known and acknowledges the child. Finally the child needs to be brought into a session with both the parents where they demonstrate their maturity by co-operating for the child’s mental development and growth by giving him/her the necessary family environment and equal love. breaks down under the strain of conflict. In the case of the giving of an illegitimate child by his mother although Hindu law never considered an illegitimate child as filius nullius . bullying. the parents must be brought along to understand that their antagonistic tug of war is the toxicity hurting their child.sons could be adopted and illegitimate sons could not be adopted. Conclusion The child. after witnessing the hostile environment at home and the parental animosity resulting from the extra-marital of either of the parents. Eventually. eventually. the Bombay HC stated that since the two mandatory conditions i. he has no role to play in the adoption of such a child. The child’s distress may take the form of school related problems. Since in the definition of “father”. it was void. Section 2. in Appya Shettya Talwar v Ramnakka Apya Talwar . which is applicable clause however specifically distinguishes between a legitimate and an illegitimate child and provides that in case of an illegitimate child the mother can give the child away in adoption without the consent of her paramour. it is the societal rejection and practical problems which add to the hardship of such . Neither he himself can give the child in adoption nor can he prevent the mother from giving away the child in adoption.e. The act imposes no such restrictions.Obviously the mother should have been recognized to have the power to give the child in adoption but our courts have rendered conflicting decisions. adoption of such a child was not possible and if made. putative father is not included. victimization and sometimes even health related illness. 6. anxiety. the relationship of such a child with the father (except for maintenance) was not recognized but instead the mother of such a child was recognized as seen in Mayana v Littram . care and support from both the parents thus to extinguish any insecurities or mental pressure the child might be undergoing. depression. In case of a legitimate child the primary right of giving in adoption is the fathers and the mother cannot exercise such right during the lifetime of the father unless he is disqualified as laid down under Section 8(c) of the abovementioned Act.
” However in the case of children whose paternity is unknown or whose parents are not married.Shakespeare. Under article 7(1) of the 1989 convention on Child Rights states that. difficult situations arise in terms of emotional security or property rights or social esteem. name. The objection is not to the mother’s right but to the different legislative provisions under the personal laws of India discriminating against the child born in or outside the wedlock. The factual position however is. “the child shall be registered immediately after birth and shall have the right to a name. The insistence of the National commission for women and the report of the Madhav Menon committee have breathed a new lease of life in the dying controversy. Its validity both on the constitutional grounds as well as philosophical grounds has been challenged time and again. the right to know and be cared by his or her parents.children. in the democratic India. The primary guardian of an illegitimate child is the mother as against the father in case of a legitimate child. school admission. Introduction: The dying voices analyzing and criticizing every aspect of the law have risen again. The fear of being saddled with the responsibilities of such children would deter many adults from indulging in illicit sexual cohabitation. The problem has to be tackled on two fronts. . The law relating to adultery as existing in the Indian penal code under section 497 has been criticized ever since it’s inception. However the sole factor which should be taken into consideration is the best interest of the child rather than the status of the legal relationship of the parents. that the law absolves the father of his duties towards his illegitimate offspring as is the case of a child born out of an extra-marital relation and thus correspondingly deprives the child of several rights – including the right to his company.firstly by discouraging illegitimate births and secondly by removing social prejudices and legal inequalities. unaltered and unperturbed. The Antiquated Shackles Of Adultery (An Analysis of The Flaws in the Law and A Discussion Of the Pros And Cons Of Different Recommendations To Reform The Law Of Adultery) “To be or not to be – that is the question” --. marriage and so on. the right to acquire a nationality and as far as possible. It is a wonder then that the law stands. These can be witnessed in several matters like-birth registration.
Although there is little doubt that the law is flawed. the consent may be explicit or implicit. Simply put the law declares it a crime for a man to have sexual intercourse with the wife of another man. but its content is not. They believe that adultery should be treated as a crime but the discrepancies should be amended. The guiding principle of the law is that all persons and things similarly circumstanced should be treated alike in both the privileges conferred and liabilities imposed. who had equally been involved in the act. The law relating to the crime of adultery is present in section 497 of the Indian Penal Code. It is unexplainable that for the same wrongful act the man is presumed by the law to have a mens rea while no such presumption is attributed in reference to the woman. It appears discriminatory that for the same act the man becomes the manifestation of evil but the woman still is considered to retain her virtues. Another similar complaint that has plagued the use of this law is the fact that under this law only the husband of the wife is entitled . To the supporters of Madhav Mennon and the National Commission for Women the law is obsolete in the context of the modern society and does not merit being treated as a crime. challenging the law as being violative of the fundamental right of equality. without the consent of the husband. Hence there neither appears an intelligible differentia nor a nexus with the object to be achieved . On the other hand. To some the law itself is welcome. it is high time that the law needs to be re-evaluated and we rid ourselves of the confusion The Law as it Stands: To understand the source of the dilemma we need to understand the law and its various points of contention. yet there exists some disparity about the proposed remedy. What seems arbitrary is the fact that the law may be used to punish the man while allowing the woman. In the light of these recommendations and observations of the Apex Court in various cases. however what the law achieves is only placing a deterrent on the man while the other party to the affair is not brought within the legal restrictions. the Malimath Committee on Criminal Justice Reforms recommends that adultery should remain as a crime but section 497 of the IPC has to be amended to the effect that it makes women also equally liable. to go absolutely free. the prima facie unequal treatment meted out to men and women has been questioned frequently. The law also explicitly declares that the wife in such cases may not be prosecuted The Complaints: To start with. That is why the constitutional validity of the act has been questioned. Again the evil attempted to be prevented is the an extra marital relationship.
women in India live in an extreme state of mental stress and neglect. women were subjugated and exposed to evils such as domestic violence. Also neither the aggrieved husband nor wife may initiate proceedings against their irresponsible spouses. As an outcome of the social practices and their own position in the society. to say the least. Breaking a matrimonial home is something that should be looked at sternly. with whom he has established adulterous relations. if any. They emphasized that the condition was very different. The framers of the code took the example of countries such as England and France and use them as a yardstick to judge the condition in India. cruel and heartless. yet while the husband has been given the right to bring action upon the man breaking the purity of his home. the trauma and emotional damage suffered by the wife of an adulterous male is equal to that of the husband of an adulterous woman. then in such a case the law may not be used at all. Thus the law. The wife of the adulterous man cannot use section 497 to bring an action against either her unfaithful husband or the women involved with her husband. knowing their station would be. in India. Not only does such an act take two people apart but also has everlasting impact on the psyche of the innocent children. child marriage and polygamy. Another malady is that in case the man is married and the woman. The wrong that is supposed to be punished is that one should not have relations with someone in an active wedlock. is defective. either it should not declare the breaking of a matrimonial alliance a crime at all or it must punish all equivalent relationships a crime too. the wife is denied such a right.to prosecute. Again. is not in an active wedlock. Thus pinning criminal charges on them. The framers of the code believed that if the women did the deplorable act it was pressured by their social and private conditions in life. What strikes one as absurd is the fact that the law punishes one and permits another equally unchaste relationship. . while the husband of an adulterous wife can bring an action against the man involved in the affair. In such a condition it is probable that they stray out of their marital homes in search of love and affection that eludes them at home. Justifications from the Framers: The framers of the law tried to justify this aberration by relying on the social conditions of India . in the present state. Hence they were actually not at fault and taking into account their already depleted station in life they should not have been held liable at least in the eyes of the law. as described by the framers. sati.
to declare one guilty and the other innocent in the same act is leniency and foolhardiness. According to the court the woman is considered to be the victim. Thus it is the philandering wife who bears this responsibility more than anybody else. A crime is crime. There is no . What this laxity means is that women know that they may wander out and they shall be unpunished. The woman. While consenting for an illicit relationship the wife ignores this responsibility and hence she is equally responsible for breaking the matrimonial alliance. Thus she should be treated as an abettor under section 497 of the I.P. at the time of marriage. However their emotions should have found vent in an effort to uplift the condition of women not while drafting the law of the land. Though the intentions of the framers may have been benevolent yet all they managed to do was to provide a safety valve in case of extreme conditions and that is all. Justification from the Supreme Court: The Supreme Court too has not been silent on the issue. in the mind of the court. It is humbly submitted that the court erred in its judgment. Thus the court held that the law was non discriminatory and not violating the right to equality . in cases of adultery. impliedly. The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. This responsibility is taken.Unjustified Justifications: There is no denying the fact that the framers of the law managed to describe the plight of Indian women precisely and accurately. Other attempts should be made to help women come out from such a pitiable state. is considered the victim of a seducer. Thus charges are pressed against the outsider who breaks the said sanctity. Another Faltering Justification: Of the individuals indulging in an extra marital affair the responsibility of upholding the sanctity of the matrimonial home lies on the married person than an outsider. Hence she who shoulders the responsibilities of marriage commits a graver offence than the man who entices her. The evil that is punished by the law. should not be a solution. but providing a loophole or proving a vent for them to misuse unhindered. The man only provides the lure it is for the woman to be attracted or not. It appears that the court believes that the man has an unstoppable seductive charm and the woman is helpless against it. The court also opined that by not allowing the spouses to prosecute each other the law offers a chance to the spouse to make-up . thus the court upheld the constitutional validity of the section 497. It is for her to maintain the purity of the relationship. is that of seduction of a woman by another man.C.
They can no longer be classified as victims in cases of adultery.P. the statistics tell a completely different tale of the supposedly conservative India. e. The effective implementation of these laws and other women friendly provisions in the constitution insures that women. The recommendations of the 42nd law commission and with the Justice Malimath committee report can be taken into consideration and equality of treatment in the law of adultery between men and women can be introduced.C had been drafted in a time and era where conservatism was the norm. Today the changed views of the society have started raising questions on the law of adultery. In that era an illicit relationship could not have imagined about and hence it was befitting that adultery was a crime.t. 20% in Hyderabad and 24 % of the People in Bombay have no qualms about extra marital affairs. have been done away with. There can be no further ignorance of the fact that our society has changed drastically. It belongs to a past that laid great stress on morals and where sex in itself was a taboo activity. today. Proposed Remedies: There is little doubt that the law of adultery is not in consonance with the society and so it must change. The most important factor that has led to the re-ignition of the debate is the drastic change in the social status of women. Or the suggestions of the NCW and the Madhav Menon . dowry and others. have an edge in the society. Thus women today are in no way inferior to men or suppressed. All this has resulted in them gaining the power of choice. 27% in Bangalore. Almost all professional college has a quota for women.c. child marriage. The practices of sati. There exist to different views here. Any attempts at reconciliation can be made independently of the proceedings and if the proceedings are successful the charges can be withdrawn. 28% in Chennai. and are at par with the opposite sex. 32% in Kolkata. Today there are laws against these evils and also laws providing effective relief against heinous acts such as domestic violence. Women are no longer suppressed or subjugated. Permissiveness is at an all-time high. polygamy.reason for not meting out similar treatment to the wife who has sexual intercourse with anyone else than the husband. The Social Transformation: We must keep in mind that these reasons and defenses were given decades ago. The re-discovery of the Indian sexuality has just begun. 22%in Delhi. as much on the initiative of women now as it was on the bidding of men before. Section 497 Of the I. Several sex surveys carried out recently point to a definite resurgence of guilt-free extramarital sex.
It shall also be prudent to take the social change and the liberated moral standards into account as the sterner law and the criminal status may not be apposite to the contemporary India. those states. The recourse to divorce shall still be available to the aggrieved party as shall be the other recourses in civil law such as damages for mental trauma. Nevertheless removal of adultery from the status of a crime would greatly reduce the deterring effect. Either the discrepancies in the law should be removed or adultery should be removed from the status of a crime to that of a social evil. Instead of limiting the degeneration of morals and values from the society making adultery a social wrong would unconsciously promote the evil of infidelity. This would indeed remove the prima facie arbitrary treatment meted out to men and women. Morality is a very specific and personal matter. such as the Nazi Germany or the communist Russia. They have taken the altered social factors into account and on that basis mooted for the removal of adultery from a crime and its conversion into a social wrong. Enforcing the suggestions would bring about equality of manner and ultimately the same punishment shall be given for the same act. However there is a darker side to the implementation of this recommendation.committee and adultery can be converted into a social wrong than a crime. . Implementation of this proposal would be in consonance with the social scenario of our country today. The Malimath committee and the 42nd Law commission have suggested that women should also be made liable for the offense and the law should be made sterner. that have done this in the past have not fared well. My Observations: It is indeed apparent that the law as it exists is neither socially apt nor does it stand to the principles of equality. In pursuance of this two major recommendations have been made. Weighing The Pros And Cons: In the light of the above reasons it is lucent that there is a need for amendments in the law and it needs to be reconsidered. Hence converse to popular believes the deterrent shall still exist. Moreover the state should not play a role in the private lives of the individuals. Thus the aggrieved individual can seek redress under other areas of law. Controlling this through the iron hand of the state would endanger the freedom of personal liberty of the individuals in the state. We risk making the state a moral watchdog. Contrary to the above proposal is the recommendation of the Madhav Menon Committee and that of the National Commission for Women. The wife who indulges in adultery is not entitled to maintenance .
Equivalent citations: 1985 AIR 1618. the husband also filed a complaint against one Dharma Ebenezer u/s. DATE OF JUDGMENT27/05/1985 BENCH: CHANDRACHUD. 497-Constitutional validity of.S. 497 of the Penal Code charging him with having committed adultery with the petitioner. Thus I believe that the law of adultery should be made sterner and the prima facie irregularities should be done away with. From absolute conservatism the society has progressed to absolute liberty. Y. ((CJ) PATHAK. Not only does adultery destroy the sanctity and happiness of a matrimonial alliance but it may also have far reaching consequences on the psyche of the innocent children. ((CJ) BENCH: CHANDRACHUD. Y.V. 497 of the Penal Code is violative of Art. PETITIONER: SMT. Thus such a heinous activity should be attempted to be prevented at all costs.C. 14 of the Constitution . must be evaluated.Thus the only certainty is that the law must be revised.V. RESPONDENT: UNION OF INDIA & ANR. Y. But before suggestions of the Madhav Menon Committee and the N. SEN. (1) 741 1985 SCC Supl. Imposing no restriction on such a change would be absurd. SOWMITHRI VISHNU Vs. HEADNOTE: During the pendency of a divorce petition against the petitioner/wife on the grounds of desertion and adultery. (1) 741 Bench: Chandrachud. s. that they make their basis.V. After due consideration it appears that there has been a downfall in the morals and virtues of the society. 1985 SCR Supl. AMARENDRA NATH (J) CITATION: 1985 AIR 1618 1985 SCR Supl.W are to be followed the social change. 137 1985 SCALE (1)960 CITATOR INFO : R 1988 SC 835 (4) ACT: Indian Penal Code. R. This shall impose a justified restriction on the adulterous pair and act as a deterrent. Thereafter the petitioner filed this writ petition for quashing the complaint on the grounds (1) that s.
several provisions of the penal law may have to be struck down on the ground that. not by a woman. they do not go far enough. does not offend Art. it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. any provision of the Constitution is infringed. can be committed by a man and not by a woman: The argument of the petitioner really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that. any constitutional provision is infringed. and (2) That the right to life includes the right to reputation and therefore if the outcome of a trial is likely to affect the reputation of a person adversely. The offence of adultery as defined in that section can only be committed by a man. (ii) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. by making an irrational classification between men and women. ^ HELD: 1 (i) The law. 746A] 1(ii) Section 497 does not envisage the prosecution of the wife by the husband for 'adultery'. as it were. Indeed. the section is bad as violating Art. Dismissing the writ petition. [745 E-F. not to its constitutionality. The offence of adultery by its very definition. G-H. he or she ought to be entitled appear and to be heard in that trial and since s. Therefore. 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard. it unjustifiably denies to women the right which is given to men This argument rests on the following three grounds. it cannot be accepted that in defining the offence of 742 adultery so as to restrict the class of offenders to men. as it is. both the man and the woman should be punishable for the offence of adultery. a free licence under the law to have extramarital relationship with unmarried women. either in their definition or in their prescription of punishment. 14 or 15 of the Constitution. However. Such arguments go to the policy of the law. the section provides expressly that the wife shall not be punishable even as an abettor.(i) Section 497 confers upon the husband the right to prosecute the adulterer but. (iii) Section 497 does not take in cases where the husband has sexual relations with an unmarried women.because. 21 of the Constitution. No grievance can then be made . with the result that husbands have. and. Where such an argument permissible. unless while implementing the policy. it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the 'transformation' which the society has undergone.
Therefore.that the section does not allow the wife to prosecute the husband for adultery. [748 A-D. is a victim and not the author of the crime. invites a civil action by the wife for separation. evidently. as defined in s.497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. against 743 . as it generally is. It only makes a specific kind of extramarital relationship an offence. Yusuf Abdul Aziz v. Fort of Bombay v. 747A] (2) It is correct to say that s. The State of Bombay  SCR 930 followed. an act which is committed by a man. those men who defile that sanctity are brought within the net of the law. the relationship between a man and a married woman. But. that does not justify the proposition that she is not entitled to be heard at the trial. That right can be read into the law in appropriate cases. either in the substantive or the adjectival criminal law. (3) In the instant case. who is involved in an illicit relationship with another man. by the decision of the court. the fact that a provision for hearing the wife is not contained in s. 497 is considered by the Legislature as an offence against the sanctity of the matrimonial home. Nadkarni.] Francies Coralie v. 21.497 cannot render that section unconstitutional as violating Art. There is no doubt that if the wife makes an application in the trial court that she should be heard before a finding is recorded on the question of adultery. perhaps. though not in all situations. which bars the court from affording a hearing to a party. The right of hearing is a concomitant of the principles of natural justice. AIR 1983 SC 109 referred to. There is nothing. [746H. there was general agreement that since the petitioner's husband has already obtained divorce against her on the ground of desertion. The contemplation of the law. no useful purpose will be served by inquiring into the allegation whether she had adulterous relationship with Dharma Ebenezer. which is likely to be adversely affected directly and immediately. An unfaithful husband risks or. is that the wife. The offence of adultery. The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another. Union Territory AIR 1981 SC 736 & Board of Trustees. the application would receive due consideration from the court. [746 D-G] 1 (iii) Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried women. Therefore. the man alone being the offender.
Datta and R. C. the Court quashed that complaint and directed that no further proceedings will be taken therein. 845 of 1980. 1. the High Court accepted her plea and held that since. The Judgment of the Court was delivered by. the husband filed a petition for divorce against the petitioner on two grounds: firstly. a decree for divorce had to be passed in favour of the 744 husband on the ground of desertion and that. a decree for divorce has already been passed in favour of the husband on the ground that the petitioner had deserted him. in a revision application filed by the petitioner. (Under Article 32 of the Constitution of India) Mrs. that she was living in adultery with a person called Dharma Ebenezer. leading to this petition are these: The petitioner filed a petition for divorce against her husband on the ground of desertion. By this petition under Article 32 of the Constitution. a decree for divorce may be passed against her on the ground of desertion. CHANDRACHUD. there was no reason why he should be denied an opportunity to show that the petitioner was living in adultery.N.J. [74 C] JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No.whom the husband has lodged a complaint u/s. 497 of the Penal Code-Accordingly. Nalini Chidambaram and Miss Seita Vaidyalingam for the Petitioner. The trial court dismissed that petition. Miss Lily Thomas for the Respondent No. So far so good. But. interesting but unfortunate. the petitioner challenges the validity of section 497 of the Penal Code which defines the offence of 'adultery' and prescribes punishment for it. the petitioner contended further that the Court should not adjudicate upon the question of adultery since it was unnecessary to do so. We are informed at the Bar that. While his petition for divorce was pending against the petitioner. The petitioner conceded in that petition that in view of the finding recorded in the earlier proceeding that she had deserted her husband. pursuant to the High Court's view. That plea was opposed by the husband. B. holding that the petitioner herself had deserted the husband and not the other way about. The husband's contention was accepted by the trial court but. the finding recorded in the earlier petition was binding on the parties. 2. He contended that he was entitled to obtain a decree of divorce against the petitioner not only on the ground of desertion but also on the ground of adultery and that. Thereafter. Poddar for the Respondent No. A few facts. that she had deserted him and secondly. it was unnecessary to inquire into the question of adultery. the husband filed a complaint against Dharma Ebenezer under .
who appears on behalf of the petitioner. The learned counsel complains that Section 497 is flagrant instance of 'gender discrimination'. such sexual intercourse not amounting to the offence of rape. no Court can take cognizance of an offence punishable under Chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offence. with the result that husbands have.section (2) of section 198 provides that." By reason of section 198(1) of the Code of Criminal Procedure. (3) Section 497 does not take in cases where the husband has sexual relations with an unmarried woman. which is entitled 'Of Offences Relating to Marriage'. and shall be punished with imprisonment of either description for a term which may extend to five years. section 497 of the Penal Code. "no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Penal Code". or with fine.section 497 of the Penal Code charging him with having committed adultery with the petitioner. or with both. Sub. and. Section 497 reads thus: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man. for the purposes of sub-section (1). as it were. by making an irrational classification between man and women. Nalini Chidambaram. it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. This argument rests on the 745 following three grounds: (1) Section 497 confers upon the husband the right to prosecute the adulterer but. it unjustifiably denies to women the right which is given to men. In such case the wife shall not be punishable as an abettor. is guilty of the offence of adultery. contends that Section 497 of the Penal Code is violative of Article 14 of the Constitution because. without the consent or connivance of that man. Section 498 prescribes punishment for enticing or taking away or detaining a married woman with criminal intent. 'legislative despotism' and 'male chauvinism'. at first blush. Mrs. namely. a free licence under the law to have extra-marital relationship with unmarried women. Section 497 is one of the six sections is Chapter XX of the Penal Code. This writ petition has been filed by the petitioner for quashing that complaint on the ground that the very provision which creates the offence of 'adultery'. is unconstitutional. 1973. (2) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. It is urged that the section may. appear as if it is a .
even the wife. on closer examination. should be made punishable for adultery. Were such an argument permissible.. It is commonly accepted that it is the man who is the seducer and not the woman.. the offence of adultery. by its very definition. which stems from the assumption that women. voted for the deletion of Section 497 on the ground that "it is the right time to consider the question whether the offence of adultery as envisaged in Section 497 is in tune with our present day notions of woman's status in marriage". recommended the retention of Section 497 in its present form with the modification that. not to its constitutionality. it would be found that the provision contained in the section is a kind of 'Romantic Paternalism'. 1971. several provisions of the penal law my have to be struck down on the ground that. Mrs. while implementing the policy." The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that. For example. who was in the minority. Such arguments go to the policy of the law. The Law Commission of India in its 42nd Report. Taking the first of these three grounds.beneficial legislation intended to serve the interests of women but. is guilty of the offence of adultery. who has sexual relations with a person other than her husband. This position my have undergone some change over the years but it is for the legislature 746 to consider whether Section 497 should be amended appropriately so as to take note of the 'transformation' which the society has undergone. any provision of the Constitution is infringed. either in their definition or in their prescription of punishment. The suggested modification was not accepted by the legislature. both the man and the woman should be punishable for the offence of adultery. can be committed by a man and not by a woman : "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man .. like chattels. are the property of men. they do not go far enough. We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men.. an argument could be advanced as to why the offence of robbery should be punishable with imprisonment for ten years under section 392 of the penal Code but the offence of adultery should be punishable with a sentence of five years only : 'Breaking a matrimonial home is not less serious a crime than breaking open a house'. unless. any constitutional provision is infringed. The repot of the Law Commission show that there can be two opinions on the desirability of retaining a provision like the one contained in Section 497 on the statute . These contentions have a strong emotive appeal but they have no valid legal basis to rest upon. . Anna Chandi.
In so far as the second of the three grounds is concerned. does not offend either Article 14 or Article 15 of the Constitution. section 497 does not envisage the prosecution of the wife by the husband for 'adultery'. upon the restrictions placed by the law of procedure on the right to prosecute. both married and unmarried. we revert to the same point : Who can prosecute whom for which offence depends. the law must remain as it is. But. as defined in section 497. Indeed.book. the demand of the petitioner that sexual relationship of a husband with an unmarried women should also be comprehended with in the definition of 'adultery' is a crusade by a woman against a woman. is considered by the Legislature as an offence against the sanctity of the matrimonial home. The self-same answer holds good in the case of the third ground also. the man alone being the offender. evidently. those men who defile that sanctity are brought within the net of the law. the section provides expressly that the wife shall not be punishable even as an abettor. perhaps. an under-inclusive definition is not necessarily discriminatory. why can an unmarried girl who has sexual . firstly. If the paramour of a married woman can be guilty of adultery. An unfaithful husband risks or. The alleged transformation in feminine attitudes. on the definition of the offence and. The offence of adultery as defined in that section can only be committed by a man. as it generally is. The law. the relationship between a man and a married woman. who is involved in an illicit relationship with another man. invites a civil action by the wife for separation. secondly. not by a woman. until then. it is. The legislature is entitled to deal 747 with the evil where it is felt and seen most : A man seducing the wife of another. we cannot strike down that section on the ground that it is desirable to delete it. But. an act which is committed by a man. is that the wife. Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. The offence of adultery. The contemplation of the law. Chidambaram says that women. They may enlarge the definition of adultery to keep pace with the moving times. It only makes a specific kind of extra-marital relationship an offence. have changed their life style over the years and there are cases where they have wrecked the peace and happiness of other matrimonial homes. Therefore. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. We hope this is not too right but. In a sense. Mrs. Incidentally. is a victim and not the author of the crime. for good or bad may justly engage the attention of the law-makers when the reform of penal law is undertaken.
Union Territory and Board of Trustees. This argument. it is her reputation which is most importantly involved and assailed. he or she ought to be entitled to appear and be heard in that trial.relations with a married man not be guilty of adultery ? That is the grievance of the petitioner. A law which does not confer upon such a person the right of being heard is violative of Article 21. Nadkarni. though not in all situations. he and A are ad idem that he should be convicted for committing adultery with B. the section is said to be bad. Relying upon the decisions of this Court in Francis Coralie v. may be put in a concrete shape by taking a hypothetical example : The husband 'A' wants to get rid of his wife 'B'. The argument of the counsel is that the real victim of such a prosecution is the wife B because. Fort of Bombay v. instances are not unknown in criminal law where. the fact that a provision for hearing the wife is not . That right can be read into the law in appropriate cases. counsel argues that the right to life includes the right to reputation and. that it violates Article 21 of the Constitution. and the wife could be allowed a hearing before an adverse finding is recorded that. The right of hearing is a concomitant of the principles of natural justice. that does not justify the proposition that she is not entitled to be heard at the trial. the application would receive due consideration from the Court. We have no doubt that if the wife makes an application in the trial Court that she should be heard before a finding is recorded on the question of adultery. Therefore. either in the substantive or the adjectival criminal law. Mrs Chidambaram has challenged the validity of section 497 on yet another ground. 748 Counsel is right that section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. the accused had committed adultery with her. by the decision of the Court In fact. the private complainant is given permission to oversee the proceedings. which is likely to be adversely affected. Since section 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard. directly and immediately. namely. which bars the court from affording a hearing to a party. if the outcome of a trial is likely to affect the reputation of a person adversely. as alleged by her husband. There is nothing. But. for its better appreciation. though the prosecution is in the charge of the Public Prosecutor. therefore. He colludes with his friend 'C' and prosecutes him for committing adultery with 'B'. One step more. C's trial for adultery is mere pretence because.
There will be no order as to costs. For then. 1860 Article 14 in The Constitution Of India 1949 Citedby 49 docs . Section 497 will be obliterated 749 from the statute book and adulterous relations will have a more free play than now. Main Search Forums Advanced Search Disclaimer Yusuf Abdul Aziz vs The State Of Bombay . more than 30 years have gone by since the decision in Yusuf Abdul Aziz was given. M. If we were to accept the argument of the petitioner. it will be impossible to convict anyone of adultery at all.A. for divorce on the ground of adultery. 1954 Cites 3 docs Section 497 in The Indian Penal Code. Though it is true that the erring spouses have no remedy against each other within the confines of section 497 of the Penal Code. In the result. that is to say.[View All] . particularly in the light of the alleged social transformation in the behavioural pattern of women in matters of sex. It is better. Petition dismissed..contained in section 497 cannot render that section unconstitutional as violating Article 21. the petitioner's counsel had many more arguments to advance and since. on 10 March. Instead of embarking upon this discussion. from the point of view of the interests of the society. we quash that complaint and direct that no further proceedings will be taken therein. Accordingly. they cannot prosecute each other for adultery. There was general agreement before us that since the petitioner's husband has already obtained divorce against her on the ground of desertion. 'Adulter' under the civil law has a wider connotation than under the Penal Code. no useful purpose will be served by inquiring into the allegation whether she had adulterous relationship with Dharma Ebenezer. Stability of marriages is not an ideal to be scorned.. that at least a limited class of adulterous relationship is punishable by law. 1860 The Indian Penal Code. we could have as well dismissed the writ petition by relying upon the decision of a Constitution Bench of this Court in Yusuf Abdul Aziz v. the writ petition is dismissed.L. However. each one has a remedy against the other under the civil law. which held that section 497 of the Penal Code does not offend Articles 14 and 15 of the Constitution. we thought that we might examine the position afresh. The State of Bombay. against whom the husband has lodged a complaint under section 497 of the Penal Code.
Jindra Lal and I.) in Criminal Application No. Vivian PETITIONER: YUSUF ABDUL AZIZ Vs. 14 and 15 of the Constitution.at Bombay (Chagla C. Peerbhoy. 1951. 1954 Smt. 345 of 1951. 1965 The State Of Bombay vs Bombay Education Society And . MEHAR CHAND (CJ) MUKHERJEA. 1996 Ramchandra Mahton And Anr. vs State Of Bihar And Ors. JUDGMENT: CRIMINAL APPELLANTE JURLSDICTION: Case No. 1985 Charan Singh And Ors. that s. Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated the 26th June. GHULAM CITATION: 1954 AIR 321 1954 SCR 930 CITATOR INFO : RF 1985 SC1618 (10) ACT: Constitution of India. Sharma. of the High Court of Judicature. 349 of 1951. arts.. RESPONDENT: THE STATE OF BOMBAY ANDHUSSEINBHOY LALJEE.. and Gajendragadkar J. VIVIAN BENCH: BOSE. 497 of the Indian Penal Code does not of lend arts. 14 and 15-Section 497 of the Indian Penal Code (Act XLV of 1860)-Whether ultra vires the Constitution. on 26 May. M. SUDHI RANJAN HASAN.. B.A. Sowmithri Vishnu vs Union Of India & Anr on 27 May. DAS.Dr. J. DATE OF JUDGMENT: 10/03/1954 BENCH: BOSE. A. on 12 October. on 28 November.C. Lecturer vs The Punjab University. 1978 Equivalent citations: 1954 AIR 321. . VIVIAN MAHAJAN. . HEADNOTE: Held. N. vs Union Of India And Ors. Shroff for the appellant. 1954 SCR 930 Bench: Bose. on 16 May.K..
It runs. It was argued that he could not invoke articles 14 and 15 for that reason. Mehta. " The provision complained of is a special provision and it is made for women. It is not necessary for us to decide this question in view of our decision on the other issue. the Constitution itself provides for special provisions in the case of women and children. K." But what he overlooks is that is subject to clause (3) which runs "Nothing in this article shall prevent the State from making any special provision for women. 931 J.. It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. The High Court held otherwise."In such case the wife shall not be punishable as an abettor. The last sentence in section 497 prohibits this. 2. The High Court decided against him but granted him a certificate under articles 132 (1) and 134 (1) (c). nor are we able to agree that a 932 provision which prohibits punishment is tantamount . Daphtary. with them) for respondent No.. . The portion of article 15 on which the appellant relies is this: "The State shall not discriminate against any citizen on grounds only of.to a licence to commit the offence of which punishment has been prohibited. Solicitor General for India (Porus A. The appeal is dismissed..... Appeal dismissed. The appellant is being prosecuted for adultery under section 497 of the Indian Penal Code." It is said that this offends articles 14 and 15. March 10. 1..... The two articles read together validate the impugned clause in section 497 of the Indian Penal Code.... We are unable to read any such restriction into the clause .C. Dadachanji and Rajinder Narain for respondent No. As soon as the complaint was filed he applied to the High Court of Bombay to determine the constitutional question mentioned above under article 228 of the Constitution.. therefore it is saved by clause (3). 1954... Sex is a sound classification and although there can be no discriminate in general on that ground.-The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the Constitution. sex.. Under section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor... The Judgment of the Court was delivered by Bose J. The appellant is not a citizen of India..B.. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights...
learned Government Advocate for the respondents.. Jharkhand High Court Top of Form pdf Get this document in PDF Bottom of Form Equivalent citations: 2003 (2) JCR 61 Jhr Bench: T Sen Bharat Coking Coal Ltd. Telmocho as also Lohapatti had been filed under the provisions of Mines and Minerals (Regulation and . Bharat Coking Coal Limited) have prayed for a declaration that the State and its authorities did not have any jurisdiction to put on auction the lease hold areas held by it over Mauja Lohapatti on Plot No.. on 11/2/2003 JUDGMENT Tapen Sen. 26196 dated 2. Banerjea. 3290. 1994 Loading. 1960. 2003 Cites 1 docs Bharat Coking Coal Ltd vs State Of Bihar on 13 May. 933 Bharat Coking Coal Ltd. Petitioners have further made a prayer that applications for grant of leases in relation to sand in various Maujas such as Kunji. J. Nutandih. 7 be quashed.S.09 acres vide Deed No. over an area of 238. M. They have further made a prayer that in any view of the matter the respondent No.11. Mr.M. 1.1974 for a period of 20 years.M. 6 (District Mining Officer) cannot auction the Sand Ghats in view of the fact that under Rule 70(iv) of the Mineral Concession Rules. 2. on 11 February. vs State Of Bihar And Ors. 1. Majumdar. vs State Of Bihar And Ors. learned counsel for the petitioner and Mr. M. Banerjea. but during the course of arguments.Agent for respondent No.1 : R. Dhebar. Heard Mr. Petitioners have also prayed that the settlement granted to the respondent No. The Writ Petitioner (M/s. R. sand is a major mineral and the same is used for stowing in coal mines. learned counsel for the petitioner abandons this prayer saying that this prayer has become in fructuous as three month's period has already lapsed. H.
there shall be no order as to costs. Majumdar. this Writ Application is disposed off. 3. 2000. 1957 as also under the provisions of the Mineral Concession Rules. Mr. Let it be recorded that this order has been passed at the threshold on consensus and this Court has not entered into merits. Consequently. it would be appropriate if the concerned authority deals with the matter as ex-peditiously as possible and preferably within a period of six months from the date of receipt of a copy of this order. Government of Jharkhand who will look into the matter and do the needful in accordance with law. the parties have agreed that the matter be remanded to the Secretary. However. It goes without saying that for the convenience of all the parties. . 4. it will be the duty of the petitioners to file a fresh set of all the documents for convenience of the authority who will now deal with the matter. 6. Department of Mines and Geology.S. With the aforementioned observations and directions.Development) Act. the entire matter has got to be looked into now afresh by the new State which has come into existence in November. 1960 way back in the year 1981 but till date nothing has happened and the Government is sitting tight over the matter. Let it be recorded that this order is being passed on consensus of the parties. 5. Since so much of time has lapsed and since the petitioners have stated that the matter is pending since 1981. R. learned Government advocate submits that some of the properties are in dispute and therefore.
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