Indian penal code has provided the list of activities which are considered as
illegal and the same time inserted under the list of offences with corresponding
punishments. Sometimes cases may be of such nature which we treat them legal or
social at a point of time but the same may be considered as illegal and unsocial
with the passage of time and technological advancements. The examples of such
situations be the customary practice of Sathi, acceptance of dowry, child
marriages etc.., Even the vice versa may also happen, suppose Section 303 of IPC
was a valid one but today it has lost its place in the IPC book and the same
time the case of Section 309 (though literally present in the statute book but
has no technical effect). So many ritual practices in Hindu culture today
unanimously struck down as unsocial and treated as illegal. These instances
indicate us that some reforms may be required as to certain instances since the
law is not a static one and keeps changes with the passage of time and
requirements of people which one has to accept.
IN this article, with my humble submissions and due regards to our learned
justice, I would like to analyze the point in the angle of common man.
The judgment recently passed by Hon’ble Supreme court by declaring the Section
497 IPC, as unconstitutional in Joseph Shine vs Union of India, 27
September,2018 as to adulterous activities.
Section 497 of IPC provisionally tells that the husband of adulterous wife can
file a criminal case against the accused who is the party to adultery and who is
a male. That means the litigating parties ar
e two males. Though the female is also a part and parcel under the said offence,
but still she is not treated as an offender. It means the woman is not made a
party in this this dirty game. Behind this provision, the legislative makers
especially Lord Macaulay might have thought so much and so long and must have
inserted this provision. In my little knowledge, I would like to draw the
following assumptions why woman is not made party to this offence.
They are, 1. Woman at a time used to be considered as a tool for entertainment
and server or maid in the family.
2. Because of her keeping within the four walls of the house, she would not
raise her voice against males.
3. That weakness might be captured even for eloping her, or luring her in
various ways and thereby the men used to enjoy their whims within their domains.
The women because of their mental weaknesses which might be due to fear or
force, used to yield immediately to the demands of male. Even till today, there
are places in Rajasthan, Chhattisgarh, in some other socially and economically
backward areas, who are chasing the poor women and making them victimized.
Therefore, by giving due importance to her socially, economically and
politically weak situation, at the then prevailing situations, the draftsman
might have given the section punishable only against male. And at that time the
male domination (in 18th and 19th centuries) was also at rampant. Lord Macaulay,
who was the draftsman of this IPC, might have kept so many parameters in mind and
must have given it.
So, coming to the present recent verdict delivered by our honourable court
making 497 as unconstitutional, does really meet the desired result?
Let us analyse it by resorting to our constitutional provisions. At one point
of time, when the code came into force that is in the year, 1860, the women were
weak in all aspects, it means, socially, economically and educationally.
But today, the scenario is completely changed. They are very much rocking on par
or even more than men in all fields without any confinement. They are able to
stretch their tentacles beyond our imagination. In such cases, she is no more a
pray or prone to yield to the cheap demands of the opposite sex. If at all she
is involving in such illegal activities means the presumption can be drawn that
it is completely with her full consent. When she wantonly being and becoming a
party to the said offence, is it justifiable to punish both of them as culprits
or is it justifiable to remove totally the offence from the IPC book? That means
under the guise of right to equality, and to the saying that there must not be
gender discrimination, holding both the culprits as not offenders, is to what
extent understandable to the common man?
Truly, if there must be equality applying Article 14, treat both the culprits
equally and punish them equally. But leaving both the culprits clutch free oras
law free, to what extent is equality? I strongly opine that,Article 14 must not
be used to make illegal activities as legal activities simply because there is
gender discrimination.Tomorrow 498A and some other sections may also be dragged
under the same umbrella for doing illegal activities so openly without any fear
of law by taking recourse under Article 14. If that would be the case, really
the most innocents become victimized.
The probable Consequential effects upon striking 497 as
Indian family system has got a unique quality compared to other countries. We
have a due sanctity to our marriage system and matrimonial bonds.We are
maintaining and safeguarding certain traditional values and upholding our
culture, sticking to some basic principles very strongly since a long time such
as following monogamy, being away from dating, live in relationships etc., so
far. But of course, in recent Supreme Court verdict even Live in relationship is
If we just peep into the family disputes today before the family courts, the
parties are coming to the courts to obtain divorce only out of extreme ego
feelings but none other than that. Because of these situations, already family
systems are getting collapsed and children are put to so much trouble and
complete chaos. Today even if make Adultery legal, what about the sanctity of
our family culture. What type of consequences and challenges be thrown into the
society. Holding the matrimonial relation becomes really a tough task and
becomes a challenge. Both the husband and wife can hold any other illegal
relations apart from his or her matrimonial relation. If at all they are finding
any inconvenience because of extra matrimonial relations, they can obtain
divorce under Section 13 of Hindu Marriage Act since it is kept intact. But the
message we can pass to our children and young generations will be stigmatized!!
Under the guise of Right to Equality as a constitutional protection, we are
tempting to lose our core sanctity and principles. We may get the constitutional
protection, where the situations are really endangering the life and liberty of
the persons and alarming the safety of people and their self-dignity. But if we
invoke this for each and everything, the sanctity of Article 14 may be shaken
and even our existence will be chaos.
Citizen beware of!