But these laws definitely treat a man and a woman unequally in the institution of marriage. We use the following types of cookies: Persistent Cookies We use persistent cookies to improve your experience of using the sites. In Yusuf Abdul Aziz v. Position in Jammu and Kashmir In this regard, we find the Jammu and Kashmir State Ranbir Penal Code, 1932, section 497 is more progressive. This was the Marriage Laws Amendment Act.
Adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage, Justice Misra said. Position in Germany If marriage is dissolved due to adultery, both the guilty spouse and the guilty partner is liable for imprisonment not less than six months, but prosecution must be initiated by the aggrieved spouse by means of a petition. Coincidentally, in these jurisdictions, both spouses are generally adhered criminally responsible for their extramarital sexual intimacy. It was observed by the court that where a man and woman were living as husband and wife for a long time and the woman bore children and that they were treated by others as husband and wife could not be treated as evidence of a valid marriage to sustain a prosecution under section 497, especially so in view of section 50 of the Evidence Act. The book explains why adultery occurs, how to secure it and the ruthless punishment for the ones who are caught in such relationships.
Raises her to a pedestal. General evidence of ill-repute of husband or the lewd company that he keeps and that he knows the addresses of prostitutes would neither prove nor probabilize adultery. My areas of interest include Criminal laws and Arbitration laws. Quoting from the Supreme Court judgment, the home ministry said, It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Lord Macaulay in the year 1837.
However, no modification or amendment has been made to this effect till date, which is a pressing concern. The parties lived in the same village and their houses were separated only by 500 feet or so. The top court, which held adultery as a relic of the past, said the autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices. During all this period, the wife lived with the accused and also used to appear in the public. This conspicuous silence splits bare the fissure and inherent weakness of the disharmony theory.
What can a man do if his wife has been bonked by someone else? The court observed that section 497 does not violate Article 14 on the ground that it makes an irrational classification between man and woman in that it confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband had committed adultery, and that it does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and that it does not take in cases where the husband has sexual relations with an unmarried woman with the result that a husband has a free licence under the law to have extra marital relationship with an unmarried woman. Bigamy is an offence against the institution of marriage. Even if a man is having an affair with a married woman, it shall not be treated to be a crime under this section, if the husband of the woman concerned, consents to it or if the affair is carried out with his connivance. If the victim is a widow, or an unmarried woman, or a married woman whose husband consents or connives to the sexual intercourse, the section is not attracted. Objectifies her and says she should be pure. In modern law, adultery can be proved by a preponderance of the evidence; it need not be proved beyond reasonable doubt.
Immediately after the institution in the Constitution of India, Section 497 Indian Penal Code was impugned on the ground that it usually goes against the spirit of equality inculcated in the Constitution. Justice Malhotra, the lone woman judge on the bench, said Section 497 is a clear violation of fundamental rights granted in the Constitution and there is no justification for a continuation of the provision. In such cases, no penalty applies. Justice Indu Malhotra, reading her opinion the last on the Bench, held that Section 497 is based on the Doctrine of Coverture. The law became defunct on 27 September 2018 by Supreme Court of India. The burden of proof is that the respondent committed adultery is on the petitioner who must prove it beyond a reasonable doubt. Of course, it might be far-fetched to expect the technocratic court to engage with these questions, but it does behove the interested reader to read into what is deliberately left unsaid.
Any law, if it fails to keep pace with the changing times, becomes obsolete. In India, Hindus, Christians, Parsis and Muslim women are supposed to follow the concept of monogamy under their personal laws. At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse. A cookie is a small text file that can be stored on and accessed from your device when you visit one of our sites, to the extent you agree. If a person has sexual intercourse with a married woman several times, it cannot be said that offence is continuing in nature.
A matter of choice Two individuals may part if one cheats, but to attach criminality to infidelity is going too far, the Chief Justice observed. Without these essential cookies we may not be able to provide certain services or features and our site will not perform as smoothly for you as we would like. The concerned provision of the 1810 Penal Code of the French, therefore, had a strong resemblance to the above cited provision of the Penal Code of 1858 of Ottoman origin. Wife is no more than a chattel to her husband and a third person had committed the crime of intruding upon his marital possession by establishing a physical relationship with his wife. In the opinion of Nagpur High Court if the complainant is same and offence is same only time is different, the successive prosecution is undesirable. The offence under section 497 is non-cognizable, bailable and compoundable, and is triable by magistrate of the first class.
Adultery is the offence by a man against another man relating to his wife. The underlying reasons are anything but feminist — they are deeply patriarchal, parochial and paternalistic. And the matter has remained as it was, till date. Society imposes impossible virtues on a woman. Therefore, men planning to indulge in sexual congress outside of marriage are urged to consider the following. However, if you select this setting you may be unable to access certain parts of the sites. Criticism of section 497 Section 497 is criticized to be patriarchal and discriminatory.