The Supreme Court of India has recently passed a judgement that Adultery is no ground for denial of Alimony.
Common sense says that Adultery is at the minimal level is breach of trust.
If breach of trust is a cognizable offense(Raja and Kanimozhi of 2 G fame/notoriety have been booked under this as an after thought this involves tough prison sentence),it beats me as to how breach of trust in a marriage is not a cognizable offense.
Indian law discriminates men against women in this aspect.
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In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC), 1860. As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law Commission of India recommended redefining Section 497 to make women also punishable for adultery. The Central Government accordingly has sought the views of all the 30 states in the country regarding the implementation of the said recommendations. This paper attempts to establish the redundancy of Section 497 in the light of Personal and Matrimonial laws and changing social conditions subsequently making a case against amending and for completely deleting Section 497 from the IPC.
An Analysis of Section 497
Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
The Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz , Sowmithri Vishnu and V. Revathi .
In the case of Yusuf Aziz 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.
In the cases of Sowmithri and V.Revathi it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband.
It must be mentioned here that all of the above decisions of the Supreme Court had restricted their scope to the determination of Constitutional validity of Section 497 as it stands. They should not be taken as an authority over the question whether Section 497 is required at all.
Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate.
Why Women Are Not Punished for Adultery
The offence of Adultery did not punish women but still existed in the code because at the time the enforced law was enacted polygamy was deep rooted in the society and women shared the attention of their husbands with several other wives and extramarital relations. Women were treated as victims of the offence of adultery as they were often starved of love and affection from their husbands and could easily give in to any person who offered it or even offered to offer it. The provision was therefore made to restrict men from having sexual relations with the wives of other men and at the same time to restrict their extra marital relations to unmarried women alone.
Why the Supreme Court Has Erred
Considering the limited question of Constitutional validity before it the object of Section 497, as stated above, was never brought before the Supreme Court. The decisions of the Court therefore have erred to the limited extent of holding adultery as an offence against the matrimonial home.
If adultery had been a matrimonial offence neither the husband would have had the freedom to indulge in extra-marital sexual relations with unmarried women nor the consent of the husband of the wife when she had sexual intercourse with other men would make any difference in its constitution. Adultery therefore is not an offence against the matrimonial home but against the husband himself. The way a person is not expected to enter on the property of the other without his consent, another man is not expected to have sexual intercourse with someone’s wife without his consent. It uses the same analogy that is used for the offence of trespass. There is no doubt then that this section treats a woman like a man’s chattel.
Changing Social Conditions
Polygamy in all religions except Muslims, who are legally allowed to have four wives, has ceased to exist and become illegal. Men now have only one wife who has no rivals for her husband’s love and affection. Today, not only a person having two wives can be prosecuted for bigamy but his second marriage is void ab-initio. Unlike the past when it was required to prove that the husband “lived in adultery” to obtain a divorce, even a single instance of sexual intercourse with anyone other than the spouse entitles the other spouse for divorce.”
http://www.legalserviceindia.com/article/l291-Adultery.html
There you have it.
Hope organisations like http://www.saveindianfamily.org/ , http://aimwa.in/,which fights for the cause of harassed husbands who suffer at the hands of wife and in laws take this issue and fight the issue out.
Social awareness is to be created for injustices meted out to men.
Another interesting part of the judgement confirmed the alimony.
It is sheer inhuman-the wife was divorced for adultery and she is being rewarded!
Any one who wants to make a quick buck may marry a person who earns Rs.One lakh/m ,commit adultery,get a divorce get a regular income for life.
If adventurous,repeat the process by getting married again.
Do people leave common sense at home?
NEW DELHI, 20 NOV: A husband cannot deny maintenance to his divorced wife on the ground that she was involved in an adulterous relationship, a Delhi court has said.
The verdict was passed by additional sessions judge Mr TR Naval, who said: “The findings that the divorcee wife has been living in adultery will not provide any benefit to him (husband)”.
The court rejected the plea of a Delhi-based policeman, who had challenged a magistrate’s order directing him to pay Rs 4,000 as monthly alimony to his wife on the ground that she was having an adulterous relationship.
The divorcee wife had moved the sessions court seeking enhancement of the alimony to Rs 15,000 per month saying her ex-husband was earning over Rs 50,000 per month and had no other liability.
The ASJ, however, disposed of the petitions saying the order passed by the magistrate was “fair” and “proper”.
“I am of the view that there is no infirmity, illegality or inaccuracy in the impugned order and there is no merit in the revisions (petition),” the court said.
The ASJ also observed that the magistrate, while deciding the alimony, had also kept in mind that the man had re-married and had the responsibility of his second wife and children.
The woman had filed a petition before a magistrate seeking alimony alleging that she had got married in February 2004 and although her parents had given dowry at that time, her husband and in-laws used to taunt her for not bringing a car.
She had alleged that as her husband was serving in police, he used to threaten her and her family members. She had also claimed that she was brutally beaten up by him and her mother-in-law.
http://www.thestatesman.net/index.php?option=com_content&view=article&id=390634&catid=36
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