Adultery , Is that the only biased and hence unconstitutional law in Indian LAW ?

Originally posted on 27th September 2018

#Section497 #Adultery

Congratulations to citizen of India :

             First time in the culture of India extra marital affair is legal. Our coming generations are going to thank us for our open mindedness, liberalism and foresightedness. As our law and legal system has already killed the institution of marriage, whereas for legal system marriage has become only matter of money, than why even dedicated love, affection and physical relationship between partners should even be considered and mandated.

      Time is not far away when Prostitution will be considered as prepaid plan and marriage as postpaid plan for the services.

     Earlier Man has the recourse of IPC 497 in case of adultery to partially safeguard himself and Women had and still have the recourse of IPC 498A.  Woman also has the recourse to file for divorce and get huge alimony from husband but husband doesn’t even have that option as still if wife’s adultery is proved one way or the other he only need to pay money to the adulterous wife.  Even after she herself being adulterous wife can file false 498a and domestic violence case against husband and YES it is legal and acceptable norm in India to file false cases against husband and even if cases are proved to be false, wife is awarded huge money as alimony for her cruelty and there are documented court judgments to support that fact.

     
      SC had the clear choice of either making the 497 Law gender neutral, still keeping the adultery as criminal offence or strike it off completely. The judgement of SC clearly shows the intent that polygamy is the next thing in and marriage is not anymore about dedicated love,  affection, physical relationship it is only about money, as not paying maintenance is still a criminal offence while sleeping with anyone else is not a crime.

      Now a further imbalance has been created which raises lots of questions.

     
        When it has been established that #Adultery is a civil issue, then dowry also can be ground for civil issues, how it has become criminal issue.  Is it not the right time to remove the mask of liberalism and open-mindedness and actually be liberal and decriminalize everything within the marriage and make it a civil issue , few of them can be as follows (there are many more)  

  1)    Demand of dowry (498a) – It should be offence cruel enough to be the ground of divorce but not criminal offence.

  2)    Non-payment of maintenance: - Man is told to beg-borrow-steal but if he doesn’t pay maintenance he will be arrested.  Although demand of maintenance by wife itself should be as illegal as dowry demand, first time in the history of our culture dowry (maintenance) is legal and even enforced by law. It cannot be denied that law of maintenance is equivalent to slavery and bonded labor (which was not even prevalent in India in colonial era). It is the first thing that should be de-criminalized.

  3)    Marital Rape : When relation between husband and wife has deteriorated and are soar enough to this level that physical relationship between them is equivalent to Rape, than it is perfect time to ask for separation or divorce, When there is civil remedy available why there is even consideration to make it a criminal offence.   

      When Supreme Court has breezed through the tides of section 497 judgement and has shown that it has the courage and power to strike down anything it deem unconstitutional and biased, It raises the question will Supreme Court also rise above the occasion and going to strike down the following unconstitutional  laws.

  1)    498a ( Dowry) : , In today’s time it is not rare where girl and her family make demand from boy’s family. It may be in the form of jewelry for girl at the time of wedding, separate residence, property in the name of girl, car for girl, money for luxury living, exorbitant shopping are only few examples. Although in today’s biased and outdated (unconstitutional) legal system, it is legal for girl to demand dowry and when demanded by girl, it is criminal offence (as economic offence) for husband to refuse for it.

       Why it doesn’t make sense to upgrade the society to make 498A gender neutral  or even better to strike it down, whereas money should not be the purpose of marriage

    There are already laws existing to safeguard from cruelty (whether it be dowry or anything else) then why this specific law is needed and in case those laws are not adequate then where is the protection for man from the cruelty from wife. 

  2)    304B dowry death: As dowry itself should not be gender specific , it doesn’t make sense for this law to be existing or be gender biased. There are suicide and murder laws that should be adequate enough to handle any type of death / Suicide abetment. And in case those are not enough same question arises, where is the law to protect man?

      Moreover when the statistics of Suicide shows Man is more prone to suicide / death due to constant financial demands from the wife.  In case of unemployment or not able to fulfill all the financial desires of wife, husband is subjected to constant taunts from girl and her family, while this mental cruelty is ignored ( and is legal and right of the wife under the law ) it pushes the husband towards committing suicide. What is more treacherous is the lowest level of mindset of society who blames husband only for this for being incapable of maintaining the wife and hence proves that we are still living in the era of patriarchy, leaving aside all equality and not making wife equally responsible for financially maintaining the family.

  3)    376 (Rape) :- World is still wondering that how on the earth in India, only one gender can be raped while other gender is immune to it. That is not the case in other countries that is too moreover when definition of rape is not limited to force but can be due to threat, consensual on false promise or gang rape. World is still wondering how on earth, male in India cannot be raped as soon as he attains the age of 18 Years. Pun apart it is not impossible that male can be forced into having sex or to be in relationship on the promise of marriage, then what is the basis of not providing the protection to male from the rape.  Law of unconstitutionality applies here and keeping in spirit of courage of Supreme Court this law ought to be strike down.

  4)    354 ( molestation / outraging the modesty ) : A law which is very hard to assimilate for anyone in senses. It believes that either Man doesn’t have modesty / dignity or man cannot be insulted. If there is no other law to protect modesty of human in India, why it is so that Man is not provided protection under this law, agreeably that is why stripping and lynching of man in public view is common in India.

  5)    PWDV act 2005 :- A law devised on the pre conceived notion that woman can only be the victim of domestic violence.  Although on the contrary international study says that India is at third number on domestic violence by wife against husband. NFHS survey concludes that women have voluntarily accepted that they have been beating their husbands. There are enormous complaints of violence against husband piling at police station without any action taken on them. Area of contention is when lawmakers think that there is not adequate law to protect from domestic violence then what made them think that man doesn’t need protection from domestic violence.

  6)    Maintenance laws ( CRPC 125 , HMA 24, DV interim maintenance ) : Few of the most patriarchal laws going back to the era before the existence of human being .  Asking for maintenance is like legalizing dowry and it is like saying as dowry is demanded legally it cannot be considered as offence. In today’s time where gender-equality is of paramount importance and it is endorsed that man is not the master and woman is not the property of man than why man is forced to maintain the wife forever for the life or until unless she becomes as if the property of someone else.  Under the compulsion of feminism court has not been able to come out of patriarchal mind set, making husband responsible to maintain the wife forever

  7)    Wife has full right to desert the husband without any penalty on wife ( Wife may even get rewarded for this) but husband doesn’t even have right to desert his wife, and if he does he will be heavily financially penalized and may be criminally prosecuted and even may need to give the right to wife to live in his own or his parent’s house.

        The presumption of these laws is that there are not adequate laws to provide the protection under already defined laws. On the contrary whenever any talks comes for the laws to protect from violence against man or to protect man from misuse of law a Bhramastra is thrown that laws already exist for that. Same laws exist to protect female also then why so many biased laws.

          When we are talking about moving away from anarchical and patriarchal era, why there is a selective move. Why it is not black and white, Why Lawmaker / Supreme Court  is not mature enough to rise above and say what is wrong is wrong and what is right is right. Or else it will be loud and clear that anti-anarchy and anti-patriarchy is just a mask to achieve just a particular motive not an ideology which Supreme Court actually believes in.

In all the haze created by Supreme Court, few clarifications from Supreme Court will be helpful :-

  1)    If a wife is in Adulterous relationship or sleeps around with anyone, and husband objects to it will it be considered mental cruelty on wife and treated as domestic violence.

  2)    If wife sleeps around with others and that too in husband’s house

a)     If in frustration husband beats that other person, will husband be prosecuted ( As that other person hasn’t committed any offence in sleeping with this person’s wife).

b)    If in frustration husband lift his hand on wife , will he be charged for domestic violence.

c)     If in frustration he asks his wife to leave the house (As now husband cannot stop or restrict her to have sex with anyone else in his own house), will he be prosecuted under CRPC 125 and be penalized to pay monthly maintenance to wife.

  3)   If wife is adulterous and husband files for divorce
            a) Will husband be safeguarded with SC making sure that husband doesn't need to pay litigation charges to wife.
            b) Will husband be penalized and asked to pay interim maintenance to culprit adulterous wife.
            c) On divorce , will husband be penalized with separation from his children. (As today court gives the custody of kids to mother , without looking at the merit of case). 
  
  4) If a husband is in Adulterous relation , will it still be considered as cruelty under 498a

       Now only options left for victim spouse is to either get divorce or commit suicide. There is no middle path as Section 497 which was only deterrent to adultery has been removed. There are lot of victim spouse for whom marriage is an important holy relationship who only would have preferred that there partner do not indulge in adultery, so section 497 was there only option to deter the spouse from indulging into it.