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Adultery not a crime - Legalizing illegal under the guise of equality- consequential effects

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 unconstitutional
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 also legalised.

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!

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