Tag Archives: Adultery

Minor son kills woman Suspecting her of adultery. Such children must be sent to Supreme Court and given proper training !!

Minor son kills woman

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TIRUPUR: A 17-year-old college student was arrested for murdering his mother near Perumanallur in the district on Wednesday. The victim, S Amutha, 37, got separated from her husband Shanmugam and living with her second son, the college student, at Perumanallur, a police officer said. The couple has another son, who is working in a private company. 

“The accused called his brother and told him that their mother had committed suicide by hanging from roof. He also informed the same to their relatives. However, on inquiry, the boy said he strangulated his mother to death as he suspected that she was having an extramarital affair,” said the officer.
— Read on m.timesofindia.com/city/coimbatore/minor-son-kills-woman/articleshow/66061127.cms

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Difficult to prove, Sec 497 hardly saw any conviction | India News – Times of India

Difficult to prove, Sec 497 hardly saw any conviction

NEW DELHI: Criminal lawyers were on Thursday hard pressed to recall a single case where a man was convicted for adultery under section 497 IPC, a clause now decriminalised by the Supreme Court.

Interestingly, the National Crime Records Bureau doesn’t even maintain a database on adultery cases as instances are negligible and there is a low chance of conviction in courts.

Adultery charges are sometimes levelled in cases where warring couples are trying to get an upper hand in legal battles over dowry harassment and cruelty, with desperation often triggering counter charges and FIRs. Ultimately, lawyers concede that the section rarely goes beyond the summons stage when parties either settle the matrimonial dispute or divorce each other. Lawyer Vijay Aggarwal, who practices extensively in Delhi’s trial courts, says while he considers the SC ruling a very welcome step, it doesn’t change the equation much on the ground. “The conviction rate in section 497 IPC was negligible because proof of sexual intercourse is required to prove adultery which is seldom available as everything happens behind closed doors. Hence, such an offence is almost impossible to prove. So, this is more of a technical correction as cases were not reaching anywhere even otherwise,” he said.

— Read on m.timesofindia.com/india/difficult-to-prove-sec-497-hardly-saw-any-conviction/articleshow/65987824.cms

No #DV relief if woman did NOT #divorce first Husband and was in ADULTERY with second fella !!! #BombayHC

Reshma Begum W/O. Gajanfar Kazi vs The State Of Maharashtra And Anr on 25 July, 2018

Bombay High Court

Reshma Begum W/O. Gajanfar Kazi vs The State Of Maharashtra And Anr on 25 July, 2018

Bench: M. S. Patil

1 Cri.Rev.Apln 82/17

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL REVISION APPLICATION NO. 82 OF 2017

Reshma Begum W/o Gajanfar Kazi, APPLICANT

Aged 30 years, Occ. Household,

R/o. At present N-6, A, 120 CIDCO,

Aurangabad, Taluka & Dist. Aurangabad

V E R S U S

[1] The State of Maharashtra RESPONDENTS

[2] Gajanfar Kazi @ Jawed S/o Kazi

Qaiseruddin, Aged 41 years, Occ.

Mechanic, R/o. Katkatgate,

Aurangabad, Taluka & Dist. Aurangabad

Mr. N.R. Shaikh, Advocate for the Applicant

Mr. A.R. Kale, A.P.P. for the Respondent No.1-State

Mr. H.I. Pathan, Advocate for the Respondent No.2

CORAM : MANGESH S. PATIL, J.

Reserved On : 29 June 2018

Pronounced On : 25 July 2018

J U D G M E N T :

Rule. Rule is made returnable forthwith. By consent, the matter is heard finally.

2 Cri.Rev.Apln 82/17

  1. Very short issue that arises for determination in this Revision is as to the interpretation of provision of Section 2 [f] of the Protection of Women from Domestic Violence Act, 2005 [hereinafter referred to as ‘the D.V. Act‘]. The factual matrix leading to revision can be put in a short compass.
  2. The applicant who belongs to Jain Hindu community was married to one Shantaram Mahadu Ughade and the couple begotten a child out of the wedlock. It was averred that, that marriage was brought to an end by virtue of a customary divorce on 15.10.2011. It is averred that she thereafter came in contact with the respondent No.2 who is a Muslim by religion. The acquaintance blossomed into an affair. He was already married and was having children. She got converted to Islam and the couple entered into a marital tie in presence of a Kazi on 21.07.2012. The couple also got a child out of such relation on 29.04.2013. However, a dispute arose and the couple separated. She filed a proceeding under Section 12 of the D.V. Act against him in the Court of Judicial Magistrate First Class at Aurangabad bearing Criminal Misc. Application No.28 of 2013.

  3. The respondent No.2 contested the proceeding primarily on 3 Cri.Rev.Apln 82/17 the ground that the applicant was already married and so was he. The marriage between the two was not legally possible, since they were already having subsisting marital relation. He also denied even that she was staying with him in some kind of relation.

  4. The learned Magistrate allowed the application holding that the relationship between the two was in the nature of marriage and was covered by Section 2 [f] of the D.V. Act and granted various reliefs.

  5. Being aggrieved, the respondent No.2 preferred Appeal under Section 29 of the D.V. Act bearing Criminal appeal No. 156 of 2015. The learned Addl. Sessions Judge by the impugned Judgment and order dated 12.01.2017 relying upon Judgment of the Supreme Court in the case of Velusamy Vs. D. Patchaiammal; 2010 (3) Bom. C.R. (Cri.) 764 (S.C.) concluded that the applicant and the respondent No.2 were not qualified to enter into a legal marriage since they were already married and their marriages were in subsistence. The relationship was not covered by Section 2 [f] of the D.V. Act. She was not entitled to take recourse to the provision of Section 12 of the D.V. Act. The appeal was allowed and the Judgment and order passed by the Magistrate was set aside. Hence, this Revision.

4 Cri.Rev.Apln 82/17

  1. The learned Advocate for the applicant submitted that since the applicant had already got the customary divorce in the form of execution of Notarized Deed on 15.11.2011, her first marriage had come to an end. Since the respondent No.2 is Muslim, his personal Law permits him to solemnize the second marriage. Since there is evidence in the form of testimony of Kazi and a Nikahnama demonstrating that the marriage was solemnized between the applicant and respondent No.2, the relationship between the two was in the nature of marriage within the meaning of Section 2 [f] of the D.V. Act. The couple had also has a child out of the relation. There was a birth certificate of the child which demonstrated that the couple was holding themselves out as husband and wife and the relationship was duly covered under that provision. The observation and the conclusion drawn by the Magistrate was unassailable. The learned Addl. Sessions Judge has ignored these aspects and without any cogent and convincing reason, quashed and set aside the Judgment of the Magistrate. There is no sufficient legal basis to substantiate the interpretation of the learned Addl. Sessions Judge. The impugned Judgment and order is not tenable in law and be quashed and set aside, thereby restoring the Judgment and order passed by the Magistrate.
  • Though the respondent No.2 has been disputing all the 5 Cri.Rev.Apln 82/17 averments, there is enough material to show that the applicant and the respondent No.2 had established a kind of relationship. They had entered into marriage ceremony in presence of a Kazi [PW 2]. A Nikahnama was executed [Exhibit 35]. There is also a Birth Certificate showing that a child was born to the applicant and the respondent No.2 was shown as the father of the child.

  • However, it is necessary to ascertain, whether such kind of relationship is covered by the definition of domestic relationship as contained in Section 2 [f] of the D.V. Act. The definition reads thus :

  • “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

    It is important to note that the interpretation put on the definition and particularly the words ‘relationship in the nature of marriage’ by the Supreme Court in the case of Velusamy [supra] to mean :

    6 Cri.Rev.Apln 82/17

    [a] The couple must hold themselves out to society as being akin

    to spouses.

    [b] They must be of legal age of marry.

    [c] They must be otherwise qualified to enter into a legal

    marriage, including being unmarried.

    [d] They must have voluntarily cohabited and held themselves out

    to the world as being akin to spouses for a significant period of time.

    Even in the case of Indra Sarma v. V.K.V. Sarma; AIR 2014 S.C. 309, a comparison has been made between the relations which are in the nature of marriage and live in relationship and guidelines have been culled out to distinguish between the two.

    1. Perusal of these decisions makes it abundantly clear that not all the live in relationships are covered by the provision of Section 2 [f] of the D.V. Act. It is only those which qualify to be the relationship in the nature of marriage which are governed by that provision. In order to constitute such relationship, a legal marriage between the two must be possible.

    7 Cri.Rev.Apln 82/17

    1. There is one more aspect which needs such an interpretation to be put to words ‘relationship in the nature of marriage’ contained in Section 2 [f] of the D.V. Act. It is well recognized principle of interpretation of statute that a statute should be interpreted in a manner which would not promote illegality. It has made a provision to enable a woman in a relationship in the nature of marriage to seek various remedies under the D.V. Act. One cannot put an interpretation to Section 2 [f] of the D.V. Act which would promote an adulterous relationship which is an offence punishable under Section 494 of the Indian Penal Code. Therefore, these words will have to be interpreted in a conducive and harmonious manner so as not to offend a penal provision contained in the Code. Therefore looked at from this angle, one cannot interpret this provision which would offend any law. The legislature in its wisdom has enacted the Law so as to cover and protect not only a legally wedded wife but has gone a step further to bring in its ambit a woman who has been in a relationship in the nature of marriage. Use of word ‘marriage’ to qualify the relationship is conspicuous and the only interpretation that can be put is that the marriage between the couple must be legally possible. Any other interpretation which would offend any other law would not be permissible.
  • Once it is clear that in order to enable the applicant to claim 8 Cri.Rev.Apln 82/17 any relief under the D.V. Act the relation between her and the respondent No.2 was not in the nature of marriage, she is clearly not entitled to claim any relief under that Act. Admittedly, on her own admission, her first marriage was still in subsistence, and if that be so, she could not have married legally with the respondent No.2 albeit he is a Muslim and his personal law permits him to solemnize the second marriage. In view of such state of factual matrix and the evidence, the observation and the conclusion drawn by the learned Addl. Sessions Judge that the relationship between these two did not fall into the ‘domestic relationship’ as defined under Section 2 [f] of the D.V. Act is unassailable. The Revision is dismissed.

  • The rule is discharged.

    [ MANGESH S. PATIL, J. ] SRM/25/7/18

    Wife CANNOT prosecute husband for adultery (S 497 IPC) Classic Justice PARDIWALA, Guj HC judgement

    Section 497 IPC 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 has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Further, A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery..

    Notes / Excerpts
    * wife who losses her earlier criminal case comes back claiming that her husband is living in Adultery. She files a criminal case (u/.s 497 IPC) against her husband, father in law and another alleged partner of her husband !!
    * the Honourable court analyses the entire case, the elements of sec 497 IPC and sec 198 CrPC and orders as follows :
    “…13. Section 497 IPC 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 has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. ….”
    “…Section 497 IPC also does not take in cases where the husband has sexual relations with an unmarried woman (like as alleged in the present case)…”
    * the honourable court goes on to say “…14. The law, in my view is very clear. A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. …”
    *…Supreme Court in the case of V. Revathi Vs. Union of India, reported in AIR 1988 SC 835, wherein the Supreme Court observed in paragraphs 3, 4 and 5 as under:- “3 .Be it realised that S. 497, Penal Code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law..”

    ==================================

    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 22748 of 2015

    FOR APPROVAL AND SIGNATURE : HONOURABLE MR.JUSTICE J.B.PARDIWALA

    ==================================
    VINOD SAMAT PATARIYA & 2….Applicant(s)
    Versus
    STATE OF GUJARAT & 1….Respondent(s)
    Appearance:
    MR AD DESAI, ADVOCATE for the Applicant(s) No. 1 – 3
    MS.P J.JOSHI, ADVOCATE for the Applicant(s) No. 1 – 3
    MR. H.K. PATEL, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
    RULE SERVED BY DS for the Respondent(s) No. 2
    CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

    Date : 12/01/2016

    ORAL JUDGMENT

    JUDGMENT

     

    1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the Criminal Case No. 301/15, filed in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from a private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC.
    2. The case of the complainant may be summarised as under:-
      • 2.1 The respondent No.2 got married with the applicant No.1 on 8.7.2010. It appears that soon thereafter matrimonial disputes cropped up between the husband and the wife. The respondent No.2 thought fit to lodge an FIR against the applicants Nos.1 and 2 and other co-accused. The prosecution instituted by the respondent No.2 through the State culminated in Criminal Case No. 27/11 and the same resulted in the judgment and order of acquittal dated 29th September, 2014, passed by the learned JMFC, Mandvi, Kutch.
      • 2.2 Soon thereafter, the respondent No.2 thought fit to file a private complaint dated 4.4.2015 against the applicant No.1 i.e. the husband, the applicant No.2 i.e., the father-in-law and the applicant No.3, the lady with whom the applicant No.1 is alleged to be in an illicit relationship. It is the case of the complainant that being a married man, the husband is in an illicit relationship with the applicant No.3 herein and is living an adulterous life. It is her case that the applicant No.2 being the father of the applicant No.1 has abetted the commission of the offence. In the same manner, it is alleged that the applicant No.3 has also abetted the commission of the offence of adultery, as she is in an illicit relationship with a married man.
    3. The learned Magistrate thought fit to take cognizance upon the said complaint and ordered issue of process against the applicants herein for the offence punishable under Sections 497 read with 114 of the IPC.
    4. Being dissatisfied, the applicants herein have come up with this application praying for quashing of the proceedings of the criminal case.
    5. Ms. P.J. Joshi, the learned advocate appearing for the applicants vehemently submitted that the learned Magistrate committed a serious error in taking cognizance upon the complaint and ought not to have issued process for the offence punishable under Sections 497 read with 114 of the IPC. Ms. Joshi submitted that indisputably, the applicant No.3 with whom the applicant No.1 is alleged to be in an illicit relationship, is an unmarried lady. She submitted that even if the entire case of the complainant is accepted as true, none of the ingredients to constitute the offence punishable under Section 497 of the IPC are spelt out. She further submitted that the respondent No.2 in her capacity as the wife of the applicant No.1 has no locus to file a complaint for the offence of adultery.
    6. The respondent No.2, although served with the notice issued by this Court, yet has chosen not to remain present either in person or through an advocate and oppose this application.
    7. The learned APP Mr. H.K. Patel appearing for the State of Gujarat submitted that no error could be said to have been committed by the learned Magistrate in issuing the process against the applicants for the offence punishable under Sections 497 read with 114 of the IPC.
    8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the complaint is maintainable in law.
    9. Section 497 of the IPC reads as under: Adultery : 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 rape, 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 not be punishable as an abettor.
    10. According to the definition of adultery referred to above, and in order to constitute an offence of adultery, three essential ingredients are necessary. (i) Sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; (ii) Such sexual intercourse must be without the consent or connivance of the husband and (iii) Such sexual intercourse must not amount to rape.
    11. Thus, to bring home an offence under Section 497 IPC, the prosecution is to prove (a) that the complainant had married a girl; (b) that a male person outside the aforesaid wedlock had sexual intercourse with the wife of the complainant; (c) that such sexual intercourse did not amount to rape i.e. to say if the wife was above 16, the aforesaid sexual intercourse was consensual. If the said wife be below sixteen whether the coitus with her consent or without, the offence would come under the realm of rape punishable under Section 376 IPC.
    12. Section 198 of the Cr. P.C is with regard to the prosecution for offences against marriage. Section 198 clause (2) along with the proviso reads as under:-
      • 198. Prosecution for offences against marriage
      • (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence :
      • Provided that-
        • (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
        • (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him for obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
        • (c) where the person aggrieved by an offence punishable under a [section 494 or section 495] of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister b [or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].
      • (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code :Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
      • (3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
      • (4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be counter-signed by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
      • (5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
      • (6) No Court shall take cognizance of an offence under S. 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under c [eighteen years of age], if more than one year has elapased from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
    13. Section 497 IPC 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 has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Section 497 IPC also does not take in cases where the husband has sexual relations with an unmarried woman (like as alleged in the present case). It is the first principle of criminal law that where a statute creates a criminal offence, the ingredients of that criminal offence must be strictly proved.
      • The Supreme Court in the case of Smt. Sowmithri Vishnu Vs. Union of India, reported in AIR 1985 SC 1618(1) observed in paragraph 11 as under:- “11. Though it is true that the erring spouses have no remedy against each other within the confines of Section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. ‘Adultery’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play than now. For then, it will be impossible to convict anyone of adultery at all. 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. Stability of marriages is not an ideal to be scorned.”
    14. The law, in my view is very clear. A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. This may not be applicable when it comes to seeking divorce by the wife or the husband, as the case may be, on the ground of living an adulterous life.
    15. I may also quote with profit a decision of the Supreme Court in the case of V. Revathi Vs. Union of India, reported in AIR 1988 SC 835, wherein the Supreme Court observed in paragraphs 3, 4 and 5 as under:-
      “3 .Be it realised that S. 497, Penal Code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife,the wife cannot be lawfully disabled from prosecuting her disloyal husband. And that in so far as and to the extent S. 198(2), Criminal P.C., operates as a fetter on the wife in prosecuting her adulterer husband, the relevant provision is unconstitutional on the ground of obnoxious discrimination, she asserts.
      4. This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu v. Union of India, 1985 (Suppl) SCC 137 : (AIR 1985 SC 1618) in the context of a challenge to the constitutionality of S. 497 2, Penal Code by an adulterer who had been prosecuted for the offence of adultery under S. 497 2, Penal Code, by the husband of the adulteress. Three grounds were pressed into service in support of the challenge rooted in Art. 14 of the Constitution in Sowmithri Vishnu’s case (supra). Ground No. 2 was in the following terms :- 2. “497. 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 rape, 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 not be punishable as an abettor.” “Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.”
      This ground of challenge has been dealt with by this Court in Para 8 of the said judgment wherein Chandrachud, C.J. spoke thus on behalf of the Court :- “In so far as the second of the three grounds is concerned, S. 497 does not envisage the prosecution of the wife by the husband for ‘adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed the section provides, expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not author of the crime. The offence of adultery as defined in S. 497, is considered by the legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point : Who can prosecute whom for which offence depends firstly, on the definition of the offence and, secondly, upon the restriction placed by the law of procedure on the right to prosecute.”
      Thus this very argument has already been repulsed by this Court, albeit, in the context of the challenge to S. 497, Penal Code. The same bullet has now been fired in order to assail S. 198(2), Criminal P.C., in so far as it confines the right to prosecute the adulterer to the aggrieved husband of the adulteress. The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife, inasmuch as by the very definition of the offence, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goodwill be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the Criminal Court. They can either condone the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial Court and snapping the matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the Court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law.
      5. Section 497, Penal Code, and S. 198(l) read with S. 198(2), Criminal P.C. go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as S. 198(l) read with S. 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practised in circumscribing the scope of S. 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.”
    16. In view of the above, not only the complaint is not maintainable in law, but the husband could not be said to have committed any offence of adultery even if it is believed that he is in a live-in relationship with the applicant No.3, who is an unmarried lady. In view of the above, this application succeeds and is allowed. The further proceedings of the Criminal Case No. 301/15, pending in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from the private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC are hereby ordered to be quashed.

     

     

    (J.B.PARDIWALA, J.)

    Mohandas

    If you scr#w another woman’s husband & have a baby, here’s a nice way to BLAME MEN !! ;-)

    Grand theme : Women these days need to blame men for their faults, for NO faults and of course for real faults where men tried and failed. Women do no wrong and in case I forgot, women are always the victims !!

    In the author’s OWN words men are to be blamed for this mistake “……As I undid my ‘mistake’ all alone that weekend and started playing our favourite sport – football with my handsome toddler; I thought of the other two men and realized what ‘convenience love’ is – One left me alone with an infant for a career and the other only loves/needs me when he is alone….”

    Once you have understood this theme, please read on, here’s a great article that appeared on TOI, “..Soul Curry..”

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    Yes, I got pregnant when my husband was out of town

    TNN | Dec 13, 2015, 03.04 PM IST

    Soul Curry invites you to share any soul-stirring experiences. If you have any such story to share, do send it to us at soulcurry and we will publish it for you!

    Yes, I got pregnant when my husband was out of town (Representational picture, Courtesy: Getty Images)

    On a chilly Saturday morning, as the second line showed a faint positive I was gripped with shock, fear and sadness. The greatest joy to womanhood just turned into a curse. Knowing that my husband has been away for more than a year, a missed period definitely indicated a second man.

    The second man was already someone else’s man, a soldier who loved his wife intensely. He was the most charming man that I ever laid my eyes upon; days turned into weeks, weeks into months and here we were together (not actually) for almost 20 months. As destiny goes, we met, fell in love, love-making followed and a morning after pill couldn’t suppress the strong forces between us.

    He was the first one I wanted to talk to about my pregnancy. But, could not reach out to him because I was bounded by time restrictions with his family constantly around. After having to handle a 2-year-old alone for a year, since my husband moved to another country, I could not face this alone (yet again). I had money, but dealt with the worst poverty – loneliness.

    When I disclosed it to him , he asked me to be calm, assured he will always be around but here I was all alone fighting the guilt, the loneliness, the tears, fighting life. Though he stayed around on calls, agreed to help me financially, handled me with hell lot of patience because I drove him crazy; even asked me if he should come over (he stayed in a different state), he knew I would always say no and he escaped it beautifully. Calls would only happen during office hours; nights were cold and lonely. I was a fighter but even the strongest person needs a shoulder to lean on and that’s when the most beautiful man in my life rescued me – my son.

    My little boy loved me unconditionally; his mom was both his mother and father. With guilt-filled eyes when I looked into his angelic innocent ones, I felt him say – Mom, I will never judge you, you are my Hero. With tears rolling down my eyes, I hugged my li’l man the tightest. Nature did join us by the umbilical cord but the bond we shared made us stronger!

    As I undid my ‘mistake’ all alone that weekend and started playing our favourite sport – football with my handsome toddler; I thought of the other two men and realized what ‘convenience love’ is – One left me alone with an infant for a career and the other only loves/needs me when he is alone.

    Right then the ball swung to me and I kicked it hard!

    (By GraceAnn)

    Soul Curry invites you to share any soul-stirring experiences. If you have any such story to share, do send it to us at soulcurry and we will publish it for you!

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