Live Law Family Matters

Tuesday, January 26, 2021

Family Court orders man to return 424 sovereigns, ₹2.97 cr to wife; pay ₹70,000/month

The family court here ordered that a woman complainant was eligible to be returned gold ornaments worth 424 sovereigns, Rs 2,97,85,000 crore and Rs 70,000 per month as alimony from her husband and his family.

Irinjalakuda Family Court judge S. S. Seena's order pertains to the complaint filed by Irinjalakuda Kandeswaram native Sruthy against her huband Dr. Sreethu Gopi, a native of Kottooli in Kozhikode district, his father Gopi, mother Mallika, brother Sruthi Gopi and his wife Sreedevi.

Rs 2,97,85,000 includes money paid by Sruthy and her family to her husband Dr. Sreethu Gopi for his educational expenses besides buying a new house and a car.

Dr. Sreethu Gopi married Sruthy on May 11, 2012. They were blessed with a boy in 2014. Ever since the marriage was fixed, Dr. Sreethu Gopi's family demanded money from Sruthy and family on a regular basis.

Sruthy approached the court complaining that after the marriage was fixed, Dr. Sreethu Gopi took Rs 1.1 crore from her family to secure a

n NRI quota seat for MD at the Thrissur Medical College.

The woman also complained that Dr. Sreethu Gopi later took several crores from them to meet the expenses of their marriage, building a new house and buying a new car.

Sruthy approached the court as she had to face physical and psychological abuse from her husband and his family members after the wedding.

Based on the evidence submitted by Sruthy and statements from witnesses, the court ordered Dr. Sreethu Gopi to return gold ornaments worth 424 sovereigns, Rs 2,97,85,000 crore and pay Rs 70,000 per month as alimony.

The court also dismissed the petition filed by Dr. Sreethu Gopi seeking custody of their son.

Wednesday, January 20, 2021

Distribution of property after death, if there is no Will

DISTRIBUTION OF PROPERTY AMONG CLASS I HEIRS

Distribution of property after death, if there is no Will

The property of a Hindu male dying intestate is distributed among his heirs in accordance with section 8 and 9 of The Hindu Succession Act, 1956. As per these the property of a Hindu dying intestate devolves upon his heirs of Class I who take the property to the exclusion of all other heirs. But what if there are more than one Class I heirs among whom the property of the deceased devolves? What rules are to be followed in such devolution. Section 10 of the Act lays down the rules to be followed in such cases. Section 10 provides as under:

Distribution of property among heirs in class I of the Schedule: The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-

Rule 1.-The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.

Rule 2.-The surviving sons and daughters and the mother of the intestate shall each take one share.

Rule 3.-The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.

Rule 4.-The distribution of the share referred to in Rule 3-

(i) among the heirs in the branch of the pre-decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions ; and the branch of his pre-deceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.

Rule 1: The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.

Tuesday, January 19, 2021

Christian Law of Succession

The laws of inheritance applicable to Christians are same for both genders. The property of a person dying intestate is bequeathed to the spouse of the deceased , or upon those who are kindred of the person deceased. ... However, in case the intestate has left no kindred, the whole property would be inherited by the widow.¹

Introduction

Every law of succession defines the rules of distribution of property in case a person dies without making a will. The Christian Law of Succession is governed by the provisions in the Indian Succession Act, 1925. However, with respect to Indian Christians, the diversity in inheritance laws is greatly intensified by making domicile a criterion for determining the application of laws. Till January 1986, Christians in the State of Kerala were governed by two different Acts – those domiciled in Cochin were subject to the application of the Cochin Christian Succession Act, 1921, while the Travancore Christians were governed by the Travancore Christian Succession Act, 1916. These two Acts have now been repealed and the Christians following these laws earlier are now governed by the general scheme of inheritance under the Indian Succession Act, 1925. However, Protestant and Tamil Christians, for example, living in certain taluks, are still governed by their respective customary laws. Christians in the State of Goa and the Union Territories of Daman and Diu are governed by the Portuguese Civil Code, 1867, while those in Pondicherry could be governed by the French Civil Code, 1804 (such Christians are known as “Renocants”), customary Hindu law, or the Indian Succession Act.

Despite these variances, the overall law for Indian Christians in effect is the Indian Succession Act of 1925, which will be dealt with in this project. It has been deemed “somewhat archaic and anachronistic” by certain legal experts, but it continues to be the only firm law in this regard. This Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and the kindred.

Basic Principles Of The Christian Law Of Succession

The Concept Of Succession

Before venturing into a discussion on the Christian Law of Succession, we would do well to first make a preliminary study of what exactly succession is. Succession, in brief, deals with how the property of a deceased person devolves on his heirs. This property may be ancestral or self-acquired, and may devolve in two ways:

By Testamentary Succession, i.e. when the deceased has left a will bequeathing his property to specific heirs

By Intestate Succession, i.e. when the deceased has not left a will, whereby the law governing the deceased (according to his religion) steps in, and determines how his estate will devolve.

The Indian Succession Act, 1925

The religion of the deceased determines the succession to his estate. For example, succession among Hindus is governed by the Hindu Succession Act, 1956. As such, Christians in general are governed by the Indian Succession Act of 1925 for succession purposes.

S. 2(d) of the Act defines an “Indian Christian” hereby: “Indian Christian” means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion.

This was further clarified in the case of Abraham v. Abraham where the scope of this definition of an ‘Indian Christian’ was delineated with regard to its actual working. This case laid down that a Hindu who has converted to Christianity shall not be governed by Hindu law (customary or otherwise) anymore, and any continuing obligatory force that the Hindu law may have exercised upon him stands renounced. However, he was clearly given the option to permit the old law to continue to have an effect on him, despite having converted out of the old religion into the new one.

In 1865, the original Indian Succession Act was passed and a new question arose as to whether, even under the provisions of this new Act, the convert could elect to be governed by the old law. In the case of Kamawati v. Digbijoy thereafter it was held by the Privy Council that the old law ceases to be applicable with regard to inheritance i.e. succession. Thereafter in a recent 2001 judgement, the Allahabad High Court reiterated that Hindu converts to Christianity will be bound solely by the succession laws governing Christians, inclusive of the Indian Succession Act, 1925, and it will not be possible for them to elect to be governed by the old law in this or related matters.

Will, however, the incidents of the joint family (in the case of those converting out of the Hindu religion) continue to apply? The Courts in this regard have not been able to reach a uniform conclusion. In the case of Francis v. Gabri the Bombay High Court held that if a family were to convert out of Hinduism into Christianity, the coparcenary rights of that family would remain untouched. But the Madras High Court held in the case of Francis v. Tellis that the effect of conversion out of Hinduism would be to render all coparcenary rights thenceforth individual rights. In this case, out of two brothers, one of them converted to Christianity. It was held that upon his death it would not be possible for the other brother to succeed to the entire estate by way of the doctrine of survivorship.

Intestate Succession Among Indian Christians

S. 30 of the Indian Succession Act, 1925 defines intestate succession thus: A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. Thus any property which has not already been bequeathed or allocated as per legal process, will, upon the death of the owner, insofar as he is an Indian Christian, devolve as per the rules contained in Chapter II of the Act. It would be worthwhile to note at this point that intestacy is either total or partial. There is a total intestacy where the deceased does not effectively dispose of any beneficial interest in any of his property by will. There is a partial intestacy where the deceased effectively disposes of some, but not all, of the beneficial interest in his property by will.

Domicile

The Domicile of the deceased plays an integral role in determining the method of devolution of his property. Halsbury defined ‘domicile’ thus: “A person’s domicile is that country in which he either has or is deemed by law to have his permanent home.” S.5 of the Act categorically states that succession to the movable property of the deceased will be governed by the lex loci as per where he had his domicile at the time of his death; whereas succession to his immovable property will be governed by the law of India (lex loci rei sital), no matter where he was domiciled at the time of his death. Also, S. 6 further qualifies this provision by stating that a person can have only one domicile for the purpose of succession to his movable property. It must be noted that domicile and nationality differ from each other – domicile deals with immediate residence, whereas nationality implies the original allegiance borne by the person. S. 15 lays down that upon and during subsistence of marriage, the wife acquires the domicile of her husband automatically.

Kindred Or Consanguinity

S. 24 of the Act makes an initial reference to the concept of kindred and consanguinity, defining it as “the connection or relation of persons descended from the same stock or common ancestor.” S. 25 qualifies ‘lineal consanguinity’ with regard to descent in a direct line. Under this head fall those relations who are descendants from one another or both from the same common ancestor. Now, succession can be either ‘per capita’ (one share to each heir, when they are all of the same degree of relationship) or ‘per stirpes’ (division according to branches when degrees of relationship are discrete). For Christians, if one were to claim through a relative who was of the same degree as the nearest kindred to the deceased, one would be deemed to stand in the shoes of such relative and claim ‘per stirpes.’

S. 26 qualifies ‘collateral consanguinity’ as occurring when persons are descended from the same stock or common ancestor, but not in a direct line (for example, two brothers). It is interesting to note that the law for Christians does not make any distinction between relations through the father or the mother. If the relations from the paternal and maternal sides are equally related to the intestate, they are all entitled to succeed and will take equal share among themselves. Also, no distinction is made between full-blood/half-blood/uterine relations; and a posthumous child is treated as a child who was present when the intestate died, so long as the child has been born alive and was in the womb when the intestate died.

Christian law does not recognise children born out of wedlock; it only deals with legitimate marriages. Furthermore it does not recognise polygamous marriages either. However, a decision has been made to the effect that it does recognise adoption and an adopted child is deemed to have all the rights of a child natural-born, although the law does not expressly say so.

The law of intestate succession under S. 32 states that: The property of an intestate devolves upon the wife or husband or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. However, as aforementioned, the Act recognises three types of heirs for Christians: the spouse, the lineal descendants, and the kindred. These shall be dealt with now.

Rights Of The Widow And Widower

S. 33, S. 33-A, S. 34 of the Act govern succession to the widow. Together they lay down that if the deceased has left behind both a widow and lineal descendants, she will get one-third share in his estate while the remaining two-thirds will go to the latter. If no lineal descendants have been left but other kindred are alive, one-half of the estate passes to the widow and the rest to the kindred. And if no kindred are left either, the whole of the estate shall belong to his widow. Where, however, the intestate has left a widow but no lineal descendants, and the net value of his property does not exceed five thousand rupees, the whole of the property will go to the widow – but this provision does not apply to Indian Christians.

S. 35 lays down the rights of the widower of the deceased. It says quite simply that he shall have the same rights in respect of her property as she would in the event that he predeceased her (intestate).

Rights Of Children And Other Lineal Descendants

If the widow is still alive, the lineal descendants will take two-thirds of the estate; if not, they will take it in whole. Per capita (equal division of shares) applies if they stand in the same degree of relationship to the deceased. This is as per Sections 36-40 of the Act. Importantly, case law has determined that the heirs to a Christian shall take his property as tenants-in-common and not as joint tenants.

Also, the religion of the heirs will not act as estoppel with regard to succession. Even the Hindu father of a son who had converted to Christianity was held entitled to inherit from him after his death.

As per S. 48, where the intestate has left neither lineal descendant, nor parent, nor sibling, his property shall be divided equally among those of his relatives who are in the nearest degree of kin to him. If there are no heirs whatsoever to the intestate, the doctrine of escheat can be invoked by the Government, whereupon the estate of the deceased will revert to the State.

Testamentary Succession Among Indian Christians

A will is the expression by a person of wishes which he intends to take effect only at his death. In order to make a valid will, a testator must have a testamentary intention i.e. he must intend the wishes to which he gives deliberate expression to take effect only at his death.

Testamentary Succession is dealt with under Part VI of the Indian Succession Act, 1925. According to S. 59, every person of sound mind, not being a minor, may dispose of his property by will. The explanations to this Section further expand the ambit of testamentary disposition of estate by categorically stating that married women as also deaf/dumb/blind persons who are not thereby incapacitated to make a will are all entitled to disposing their property by will. Soundness of mind and freedom from intoxication or any illness that render a person incapable of knowing what he is doing are also laid down as prerequisites to the process.

Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that comprehensively deal with all issues connected with wills and codicils, and the making and enforcing of the same, including capacity to make a will, formalities needed for wills, bequests which can be validly made etc.

Conclusion And Suggestions

It has been argued by several prominent Christian lawyers and legal writers that “laws with regard to touchy issues like succession, etc. should reflect customs and practices for their acceptance and sustenance.” While the improvements introduced by the Indian Succession Act, 1925 with regard to women’s property rights have been welcomed, since “the majority of Christians do not seem to be opposed to giving equal share to women in the matter of intestate succession,” there is also a faint vein of resentment with regard to the total repeal of the Travancore Christian Succession Act 1792 since it was considered to be an overall well-balanced legislation.

As these problems are still alive, it has become necessary to look for some solutions in the constitutional context. “While in view of [the] distinction between legislative and judicial functions, the legislature cannot by a bare decision, without more, directly overrule, reverse or override a judicial decision, it may at any time in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative, or neutralising effect the conditions on which such decision is based.” With this in mind, the Travancore-Cochin Christian Succession (Revival and Validation) Bill, 1996 was put forth. Unfortunately, all it looked to was a rehashing of the earlier law, and not an arrangement for the validation of past transactions, which is in fact more significant.

Indian Christians number more than 2,00,00,000 – two crores – of the population of this country. It is important that their rights and wishes be considered with regard to application of laws to their community.

Bibliography

Articles

Champapilly, Sebastian, “Christian Law of Succession and Mary Roy’s Case,” (1994) 4 SCC (Jour) 9

Champapilly, Sebastian, “Reforms in Christian law of succession in India,” (1999) 4 SCC (Jour) 7

Books

Basu, N.D., “Law of Succession”; Bakshi, P.M.(rev.), 6th ed. 1998, Asoka Law House, New Delhi

Diwan, Paras and Diwan, Peeyushi, “Family law,” 4th ed. 1998, Allahabad Law Agency, Faridabad

Diwan, Paras, “The Law of Intestate and Testamentary Succession”, 1st ed. 1991, IInd ed. 1998, Universal law Publishing Co. , Delhi

Mitra, “Law of Joint Property and Partition”; Mallick, M.R. (rev.), 4th ed. 1998, Kamal Law House, Calcutta

Parry & Clark, “The Law of Succession,” 10th ed. 1996 (2nd imp. 1997), Sweet & Maxwell, London

Rao, G.C.V. Subba, “Family Law in India”; Rao, T.V. Subba and Kumar, Vijender, (rev.), 8th ed. 2004, S. Gogia and Co., Hyderabad

Saxena, Poonam Pradhan, “Family Law Lectures,” 1st ed. 2004, Lexis-Nexis (Butterworths), New Delhi

Sen, D.N., “Indian Succession Act, 1925”; Gupta, S.P. Sen (eds.), 4th ed. 2002, Kamal Law House, Calcutta

Tuesday, November 17, 2020

2018 SCC OnLine SC 1676.Offence of adultery held unconstitutional: Understanding Joseph Shine v. Union of India

Introduction

The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”[1]. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

Under Indian law, Section 497 IPC makes adultery a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. The offence of adultery under Section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual intercourse with the wife of another man without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed, with the permission of the court. It does not consider the wife of the adulterer as an aggrieved person.

Section 497 IPC and Section 198(2) CrPC together constitute a legislative packet to deal with the offence of adultery[3] which have been held unconstitutional and struck down by the Supreme Court in Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Penal Code

Section 497. 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 a case, the wife shall not be punishable as an abettor.

Criminal Procedure Code

Section 198. Prosecution for offences against marriage. — (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

* * * * * * * * * *

(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.

* * * * * * * * * *

Classification of offence

The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant). Also, it is a bailable offence.

Compoundable offence

The offence of adultery is compoundable by the husband of the woman with whom adultery is committed. Compoundable offences are those where the court can record a compromise between the parties and drop charges against the accused. [Section 320 CrPC].

Cases

Offence of adultery held unconstitutional: Understanding Joseph Shine v. Union of India

Sections 497 IPC and 198(2) CrPC insofar it deals with the procedure for filing a complaint in relation to the offence of adultery, are violative of Articles 14, 15(1) and 21 of the Constitution, and are therefore struck down as being invalid, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

This Note hereinafter discusses various observations of the Supreme Court in Joseph Shine case.

Object

The object of Section 497 is to preserve sanctity of marriage. The society abhors marital infidelity.[4]

However, this object does not find favour with the Supreme Court. In Joseph Shine, the Court observed thus:

“… the ostensible object, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 at all …”

It was further observed that the sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow which is not penalised by the legislature. Also, if the husband consents or connives at the sexual intercourse that amounts to adultery, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.

History

Section 497 is a pre-constitutional law which was enacted in 1860. At that point of time, women had no rights independent of their husbands, and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft” of his property, for which he could proceed to prosecute the offender.

The first draft of the IPC released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence. The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Ingredients

In order to constitute the offence of adultery, the following must be established:–

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

After stating the ingredients as mentioned above, the Supreme Court in Joseph Shine goes on to discuss the vice of unconstitutionality inherent in the offence of adultery, as may be seen presently.

Who may file a complaint

Only husband of the woman with whom adultery is committed is treated as an aggrieved person and only he can file a complaint. However, in his absence, some other person who had care of the woman on his behalf at the time when such offence was committed may file a complaint on husband’s behalf if the court allows. [Section 198(2) CrPC]

In Joseph Shine, this was held to be arbitrary and violative of constitutional guarantees as is discussed below.

Woman has no right to file a complaint

A wife is disabled from prosecuting her husband for being involved in an adulterous relationship. The law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Who can be prosecuted

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual. The adulterous woman is not even considered to be an abettor to the offence. Woman is exempted from criminal liability.

Presence of an adequate determining principle for such classification was doubted in Joseph Shine.

Woman treated as property of man

Historically, since adultery interfered with the “husband’s exclusive entitlements”, it was considered to be the “highest possible invasion of property”, similar to theft.[5]

On a reading of Section 497, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 violates Articles 14 [Equality before law]

Section 497 treats men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. Additionally, if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. The section lacks an adequately determining principle to criminalise consensual sexual activity and is manifestly arbitrary and therefore violative of Article 14, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 198(2) CrPC also violates Article 14 [Equality before law]

Section 198(2) CrPC does not consider the wife of the adulterer as an aggrieved person. The rationale of the provision suffers from the absence of logicality of approach and therefore it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of Article 15(1) [Prohibition of discrimination]

Article 15(1) prohibits the State from discriminating on grounds only of sex. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, the offence of adultery discriminates between a married man and a married woman to her detriment on the ground of sex only. The provision is discriminatory and therefore, violative of Article 15(1), Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of dignity of woman and Article 21 [Right to life]

Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women.

Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, the same offends Article 21, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Violation of right to privacy and right to choose

This Court has recognised sexual privacy as a natural right, protected under the Constitution. Sharing of physical intimacies is a reflection of choice. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is a denial of this right, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Married woman’s sexual agency rendered wholly dependent on consent or connivance of husband

A man who has sexual intercourse with a married woman without the consent or connivance of her husband, is liable to be prosecuted for adultery even if the relationship is based on consent of the woman. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Section 497 denudes woman’s sexual autonomy

Section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Opposed to “constitutional morality”

It is not the common morality of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires enforcement of the constitutional guarantees of equality before the law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Premised on sexual stereotypes

Section 497 is premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women are ‘victims’ of adultery and therefore require the beneficial exemption has been deeply criticized by feminist scholars, who argue that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society[6], Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Breakdown of marriage

In many cases, a sexual relationship by one of the spouses outside of the marriage may lead to the breakdown of marriage. But often, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Case of pending divorce proceedings

Manifest arbitrariness is writ large even in case of a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may, in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If during this period, she has sex with another man, the other man is immediately guilty of the offence, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Whether adultery should be treated as a criminal offence?

Adultery is basically associated with the institution of marriage. Treating adultery an offence would tantamount to the State entering into a real private realm. Adultery does not fit into the concept of a crime. It is better to be left as a ground for divorce, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

International perspective

International trends worldwide indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Why did the Supreme Court not wait for the legislature and itself strike down the provisions?

These sections are wholly outdated and have outlived their purpose. Maxim of Roman law, cessante ratione legis, cessat ipsa lex [when the reason of the law ceases, the law itself also ceases], applies to interdict such law. Moreover, when such law falls foul of constitutional guarantees, it is Supreme Court’s solemn duty not to wait for legislation but to strike down such law, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Adultery continues to be a ground for divorce

There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

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Further Suggested Reading

Kumar Askand Pandey – B.M. Gandhi Indian Penal Code (IPC) [Buy Here]

C.K. Takwani – Indian Penal Code (IPC) [Buy Here]

Surendra Malik and Sudeep Malik – Supreme Court on Penal Code Collection by Surendra Malik and Sudeep Malik [Buy Here]

Dr. Murlidhar Chaturvedi – Indian Penal Code (Hindi) [Buy Here]

† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.

India’s supreme court strikes down a colonial-era adultery law

Extramarital sex is not a criminal offence in India anymore.

The country’s supreme court today (Sept. 27) struck down a colonial-era law that prescribed a maximum imprisonment of five years to men for adultery. However, the offence still remains a valid ground for divorce.

A five-judge bench of the court ruled that section 497 of the Indian Penal Code violates women’s right to equality and treats them like the property of their husbands. “It’s time to say that (a) husband is not the master of (his) wife,” chief justice of India, Dipak Misra, read out from the judgment.

Unlike the country’s sexual assault laws, which hinge on the consent of the woman, the 158-year-old adultery law did not consider the woman’s will. Though women couldn’t be punished under the provision, a husband could prosecute the man who had sexual relations with his wife, even if the wife was a voluntary participant in the act.

A wife, on the other hand, could prosecute neither her husband nor those with whom he had engaged in extramarital affairs.

The Narendra Modi government had supported the colonial-era law on the grounds that it preserved the sanctity of marriage and served a public good.

“Protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy (divorce law) available to the other. Where is the question of ‘public good’ in a broken marriage?” Misra had asked during the hearings in August.

The Modi government was open to making the law gender-neutral by allowing for the prosecution of a woman who has sex with a married man. However, the court has consistently refused to allow for prosecution of women.

In 1985, the supreme court said, “It is commonly accepted that it is the man who is the seducer and not the woman,” and that making the law gender-neutral would allow for “a crusade by a woman against a woman.”

Wife can leave husband for lover, says court

A woman cannot be compelled to live with her husband against her wish if she chooses to stay with her lover, the Rajasthan High Court has implied in a verdict, which has triggered intense debate.

"We see no reasons why she should be compelled to live with her husband," a bench comprising Justices Gyan Sudha Misra and K C Sharma ruled on a habeas corpus petition filed by a husband alleging that his wife had been abducted by another man.

However, during the hearing it became evident that the wife had wilfully left the matrimonial home to live with her lover.

Taking her statement on record, the court said a case of habeas corpus of illegal detention could not be made out.

"This is certainly not a case for issuance of a writ of habeas corpus since the basic ingredient of illegal detention of the detenue (wife) is missing in the petition," the bench said.

Sahab Singh had filed the petition alleging that his wife Manju Singh was abducted by one Suresh.

However, the wife had said she was having a liking for Suresh even before the marriage and she had no way out but to elope with him.

The recent judgment has evoked reactions with legal experts saying that there was nothing illegal on the part of the woman to choose the man with whom she wants to live.

"I see the verdict very important, interesting and good. It has recognised the autonomy of women in her decision making process," advocate Indira Jaising said, adding that no one can compel anyone to live with anyone.

Advocate Sunil Mittal, Mukta Gupta, Kamini Jaiswal also shared the view with Jaising and said a case of habeas corpus could not be made out against the other man if the wife wilfully leaves the husband to live with her lover. They said in such cases, the husband has a remedy to go for divorce.

Mittal and Jaiswal opined that the husband could seek divorce on the grounds of adultery and restitution of conjugal rights. Jaisingh and Gupta said a husband canot raise a ground of adultery against his wife.

"A husband has a remedy under section 497 of the IPC against the other man," Gupta said.

All of them said in the instant case it was a wilful decision of the wife, who was a major, to stay with the lover so a case of illegal or forced detention against the other man could not be made out.

Friday, October 16, 2020

വിവാഹമോചനം നേടിയ ശേഷവും സ്ത്രീക്ക് ഭർത്താവിന്റെ വീട്ടിൽ താമസിക്കാം : സുപ്രിംകോടതി

വിവാഹമോചനം നേടിയ ശേഷവും സ്ത്രീക്ക് ഭർത്താവിന്റെ വീട്ടിൽ തന്നെ താമസിക്കാമെന്ന് സുപ്രിംകോടതി. കോടതികളുടെ മറിച്ചുള്ള വിധികൾക്ക് മുകളിലാണ് സുപ്രിംകോടതിയുടെ ഈ വിധി.

വിവാഹ മോചനം നേടിയ സ്ത്രീയ ഭർത്താവിനോ അവരുടെ കുടുംബത്തിനോ വീട്ടിൽ നിന്ന് പുറത്താക്കാൻ സാധിക്കില്ലെന്നും ആ വീട്ടിൽ തന്നെ താമസം തുടരാൻ സ്ത്രീക്ക് അവകാശമുണ്ടെന്നും സുപ്രിംകോടതി വിധിച്ചു. ജസ്റ്റിസ് അശോക് ഭൂഷൻ, ആർ സുഭാഷ് റെഡ്ഡി, എംആർ ഷാ എന്നിവരടങ്ങിയ ബഞ്ചാണ് വിധി പുറപ്പെടുവിച്ചത്.

2019 ലെ ഡൽഹി ഹൈക്കോടതി വിധിക്കെതിരായി സതീഷ് ചന്ദർ അഹൂജ സമർപ്പിച്ച ഹർജിയിലാണ് സുപ്രിംകോടതിയുടെ നിർണായക വിധി. സതീഷിന്റെ മരുമകൾ സ്‌നേഹ അഹൂജയ്ക്ക് ഈ വീട്ടിൽ താമസിക്കാനുള്ള അവകാശമുണ്ടെന്നായിരുന്നു ഡൽഹി ഹൈക്കോടതി വിധി. ഭർത്താവ് രവീൺ അഹൂജയിൽ നിന്ന് വിവാഹ മോചനം നേടാനുള്ള നിയമനടപടികളുമായി സ്‌നേഹ മുമ്പോട്ട് പോകവേയായിരുന്നു ഹൈക്കോടതി വിധി.

എന്നാൽ തന്റെ സ്വന്തം അധ്വാനത്താൽ പണികഴിപ്പിച്ച വീട്ടിൽ മകൻ രവീൺ അഹൂജയ്ക്ക് അവകാശമില്ലെന്നും പിന്നെങ്ങനെ ഭാര്യ സ്‌നേഹയ്ക്ക് അവകാശമുണ്ടാകുമെന്ന് കാണിച്ച് കൊണ്ട് സതീഷ് ഫയൽ ചെയ്ത ഹർജിയാണ് സുപ്രിംകോടതി തള്ളിയത്.