Archive for June, 2011

Commentary on Express News: “Right to sex is fundamental, adultery not a crime”.

30 June 2011

Indian Express of 30th June had this (http://tiny.tw/7PK) news item.

At the beginning, It is important to point out the most noteworthy feature of the *reported case*. The lawyer seems to *apparently* seek parity in Section 497 of Indian Penal Code, which defines adultery. Currently, only husband of a woman, who is having an extra-marital affair, is empowered to prefer charges. Lawyer argues this is discriminatory, and a wife too should get the right to prefer charges against her husband if he is found in an extra-marital relationship. This position is conscionable and unassailable. But, the title of the news report suggests something quite different including some of the other reported statements of the lawyer.
The news reporting is tardy and confusing. On one hand lawyer is arguing for more, & equal rights for women. But a closer look raises doubts about the real drift. Petition challenges the constitutional validity of Section 497 of the IPC on the grounds that it violates a “*woman’s* fundamental right to have sex with a man of her choice and, therefore, the same cannot be curtailed by an archaic and outdated concept of decency. It would appear from the foregoing argument that lawyer’s client is a woman. Further, lawyer is said to argue on behalf of a *Worli Resident* who is booked under a section (S.497) that attracts up to *5 years imprisonment*, if found guilty. Nowhere does the report talk of the *gender of the client*, who is only identified as a Worli resident. Now usually names are withheld when the victims of crimes of these nature (rape/ molestation/ adultery) are women (Yes, theoretically men too could be victims of even first two crimes). This leads to irresistible surmise that the *Worli Resident* is a woman.
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rap, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may *extend to five years*, or with fine, or with both. In such case the *wife shall be punishable as an abettor* ”.
But section 497 here talks of *crime* committed by *man* and his punishment for it if he is found guilty. This is the same punishment, *up to 5 years imprisonment*, as what *Worli Resident* is likely to undergo if found guilty. This leads to opposite conclusion that the *Worli Resident* is a man, because the punishment prescribed is for a man, and not a woman. But hold for a minute! It also says that wife could be punished as an *abettor*. Since the punishment for abetment has not been spelt out in this section, and at least as far as I could gather nowhere else specifically, it would have to be covered by the omnibus, catch all section 109 of IPC for crimes of abetment.
Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and *no express provision* is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation: – An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation or in pursuance of the conspiracy, or with the aid, which constitutes the abetment”.
Therefore, if a man is found guilty of adultery, then his partner woman would attract the punishment for abetment as prescribed under section 109. That is, the woman would get same punishment as man – up to 5 years. With this it is possible for the *Worli Resident* to be a woman, and yet face the prospect of up to 5 years imprisonment. Thus it may look that the contradiction is resolved and consistency restored to the narrative. But it flies in the face of lawyer’s next submission: “the law (adultery) was *discriminatory* as a husband aggrieved by wife’s extra marital relationship can get *her paramour* booked under the section, however, wife in such a situation has no *redressal*”. This seems *obviously* to suggest that lawyer’s client, a Worli resident and presumably a woman, prefers to press a charge of adultery (or abetment) against her husband, whom she has found to be in extra-marital relationship with another woman – *married or unmarried*, who would of course have be charged with abetment (or adultery). But, if this is the case, then *Worli Resident* will be the *complainant* here, and not the defendant/ accused, who is facing the prospect of up to 5 years imprisonment as stated in news report.
Let us put the two reported statements of the lawyer side by side :
*Petition challenges the constitutional validity of Section 497 of the IPC on the grounds that it violates a “*woman’s* fundamental right to have sex with a man of her choice and, therefore, the same cannot be curtailed by an archaic and outdated concept of decency*.
&
*the law (adultery) was *discriminatory* as a husband aggrieved by wife’s extra marital relationship can get *her paramour* booked under the section, however, wife in such a situation has no *redressal *.
The first statement seems to argue in favour of *striking down* S.497. The second on the other hand argues for *creating parity* in S.497 by granting wife the right to prefer charges against a husband for adultery/ abetment   (that means keeping S.497 on statute). How can someone argue for both striking down and for keeping S.497? This apparent contradiction, a confusion created by faulty reporting, is resolved by a neat subtlety. The lawyer is arguing for holding S.497 of IPC unconstitutional on *precisely the grounds that it discriminates* as regards right granted for preferring a charge of adultery/ abetment only to a man (husband), and not to a woman (wife). This is like defence through *double negation*. Since S.497 discriminates with respect to gender, remove the charge of adultery altogether from the legislation.
A moot question is : If the court were to ask the government to modify S.497 so as to empower a wife aggrieved by her husband’s adulterous behaviour to prefer charges under it, then where would it leave lawyer’s client, a Worli resident. She is obviously a woman and has been charged by her husband of abetment to adultery. If court takes stand as aforesaid, she would still go to jail. The strategy of the lawyer has a Fifty-Fifty chance. Indeed, it is a bad chance to take. Probably, there is no other alternative left for woman except *compromise* with her husband. Since it is a petition before Mumbai High Court, the Worli Resident is presumably already convicted by the trial court.
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