Adultery by wife

3rd year LLB

Hi All,

I am a law student and am currently trying to understand how to work this case out. According to IPC S 497 - Whoever has s*xual 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 s*xual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either descripttion 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.

We all know this. However, I have come across the most unfortunate case. Here's how it goes.

The wife has been committing adultery from the time of marriage, with on and off apologizing and getting back to the husband, during the course of time when things got better between the couple, she conceived and they had a son. Post the birth of the son, again the wife left the two week old child and the husband and went away to live with her boyfriend. She did not show up until the child was 5 years old.

She told the husband that she is willing to give him a divorce as she doesnt want to stay married nor does she want the child, but only at the cost of him giving her a two BHK flat, a car worth 5 lacs and a montly alimony of 10000k. The husband under pressure and the fear of losing the child and while in an inebirated state signed the document back in 2000.

In 2007 she started coming to visit the child occassionally. but all the costs of the child were being looked after by the father and his parents. He eventually stopped paying her any money and was also not able to afford the house and car.

She is now demanding that she should get the house car and the entire custody of the childe with no visitation rights whatsoever to the father or the grandparents. she has forcibly taken away the child and told the father that unless he pays her the money and gives her the assets the child will not be allowed to meet him.

Now my question here is as follows?

The woman left the house at her own will. Noone asked  her to leave. So why does she need to be given any maintanance?

The husband is willing to pay the expenses of the child as he is the father but she is demanding that her own expenses also be met! Is that fair?

the court asks for evidence of her being adulterous? I would like to know does any conniving woman in thr right frame of mind allow you to take photographs of her with another man which can be produced in court as evidence against her?

It is really sad that our Indian Judiciary makes laws to only protect women and theor rights. What about a man in situations like there? it is high time, we understood that women are not as weak and underprivileged as we make them out to be. I

I am a woman too, however, this kind of a law is completely unacceptable. How is it fair that a woman commits adultery to a point where she leaves her weeks old son and husband and then demands that she paid maintainance?

I have consulted various lawyers over this and they all have only one thing to say that the law is not in favour of a man and hence special laws are made to protect women?

Are we not in fact creating monsters in women by framing laws like these?

Shona Parelkar


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Samaritan

Welcome To the real world, Dearie! Being a law student is a good beginning for becoming a student of Life. You learn that, like Law, everything is not as simple as being “Black” and “White”; there are “Grey” areas – plenty of them. Unfortunately, many unscrupulous colleagues capitalize on the “Grey” areas of the Law (and Life!).

As for this adventurous lady, no one is more culpable for her “indiscretions” than her husband – a tolerant soul (Bless his heart!).  His generosity is exemplary; his servitude is catalytic to encouragement! Either this guy is one of those limp-wristed, hip-swinging specimens of dubious gender or maybe he privately gets a kick out of men (REAL men) properly admiring his wife’s ASSets. Again, nothing to be alarmed about; there are plenty of these prancing around.

As for these gender-biased “laws” that anoint women with privileged status, who do you think passed those “laws” in the first place? “MEN” – which speaks volumes for the intellect of our chosen legislators! So crying, sniveling, throwing a ruckus over just how unfair life (and the “Law”) is to men won’t make onehellofalotof difference to the status quo: That’s just the way “the pimple pops”, my friend! My hemorrhoids bleed in sympathy!

The only solution I see is to revert back to the Constitution where everyone should be treated as equals under the Law. Any “law” that deviates from that precept is NO LAW, facially flawed, illegal, and should be stricken down!


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self employed

There  r many men and women who have bad charecter, bad temprament and real bad habits. But samaj plays a vital role in controlling and curbing such acts to great level where proof is not of great use but in city like Mumbai where samaj system does not exists u r rendered helpless and have only courts. Courts r sitting at a place where they do not know who,s who, what s what , etc etc. 

So they can not enetr anyones heart/mind and find the truth. ( Therefore I demand that lie detectors must be introduced in all courts specially in family courts). So they can give judgement only on the basis of an evidence. If u or me or even god was to sit on that chair he can not gvive judgement only based on one persons story howver good it may be like written by you. You have to have an evidence. Law is not lopsided. You dont have evidence as there was a reason this man did not want to go in conroversies. There was ample opportunity for him to gather evidence which he has not and was afraid of doing so otherwise pvt . detectives to many other sources like RTI , and many other ways r there to prove that she had abonded this house and was live some where with some one. Mails, no mails, bank accounts , no accounts, bills  no bills, photos of functions without her,  etc etc ..

But I am sure this man is having the reason to be silent and that lady is using that. 


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@Author, won't the Court judge the matter keeping in mind her misdeeds i.e she left her 2wks old son with father?

How far is her demands justified??I read a judgement where the Judge himself went out with a 5 year old boy asked him with whom he wants to live offering him chocolate.

Will such a sensitive case will be won by the wife just because she has many laws in her favour??


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self employed

Utpalaji,

For such women there is a no law in her favour but the lack of evidence is. So many criminals, murderers live scot free only because of lack of evidence. It is important to gather evidence and u will find no law is in her favor.


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Samaritan

There’s a very good reason why “evidence” obtained thru’ Polygraph Examination is inadmissible in court; mainly, because it is imprecise and unreliable. If any discovery pursuant to such examination is proffered in court, it would only serve to confuse and prejudice the fact finding process because arguments in aggravation as well as in mitigation are equally convincing – and equally doubtful!

 

As one who is closely associated with Law Enforcement and somewhat familiar with the technology and technique pertaining to the Polygraph, one comes across purportedly “authoritative” opinion that “You can’t fool the machine, but you can fool the Operator”.  Wrong on both counts! Your success in “fooling” the machine and the Operator is contingent on your supernatural ability to fool yourself – quite impossible even for a schizophrenic!

 

Back to the issue on hand: It is my personal belief that infidelity is the ultimate disrespect in any purportedly monogamous relationship. If you have “good reason” to believe your spouse is cheating on you, don’t torture yourself further by looking for “evidence”, snooping around, conducting surveillance and generally going about as a perverted voyeur! There are choices available to remedy your life: You could list out the “pros” and “cons” of working things out, licking your wounds and continuing on ahead with life especially when children and/or large community assets are at issue. You could gracefully step out of wedlock and wish him/her well (knowing that the cheating will never stop there). You could further corrupt the relationship by engaging in some extra-marital adventures on the side. You could embark on a mission of vengeance (which usually boomerangs back at you)! Or you could try being a tolerant, “progressive” couple and try swinging/wife swapping (and make your parents, kids, relatives, neighbors die of shame).

 

Or, if all else fails, you could cry your heart out in some desolate corner of the house and write Dil-Jalava Shair Shairies – Who knows but your tear drenched writings might find their way into a Bollywood hit song?!


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Scientist/Engineer

 

http://www.lawyersclubindia.com/forum/Adultery-by-wife-44957.asp

 

Section: 497 of IPC has very interesting history. It is as old as IPC, 1860 itself or even older. Many know that the original main author of IPC was Lord Thomas Babington Macaulay. He drafted it in the 1830’s. He was in India only for four years and he achieved many things during that short stay in India.

There were not many women’s movements worth speaking of during those times. The Declaration of Sentiments in USA was only in the year 1848. It took several decades to grow in the Western World. It came to India only much later. Then why Lord Macaulay drafted such a Section as 497?

In fact, under Christianity and Islam a woman is more blameworthy than a man in the matter of adultery. In the middle ages, the law was that an adulterous woman should be publicly stoned to death. In fact President Zia-ul-haq reintroduced this law in Pakistan and recently the Governor of Pakistani Punjab was assassinated by his own body-guard, because he wanted repeal of the law.

Lord Macaulay had a very low opinion about Indian culture, especially Hindu religion. Rightly or wrongly, in his opinion, women in India were a non-entity almost like slaves. He pictured many rich Indians having a large retinue of wives and concubines.

Lord Macaulay had no intention of modernizing Indian Law. According to him, Indian woman was a pitiable creature not capable of doing anything on her own. So he prevailed upon the other members of the Committee to exempt women from the purview of Section 497. IPC became law just one year after his death in 1859.

Many things have happened since, in the last 150 years. However Section 497 is still there untouched. After the Indian Constitution came into effect in 1950, Section 497 was challenged in the Supreme Court in 1954 on the ground that it contravenes the concept of equality under the Constitution, in the Yusuf Abdul Aziz vs State of Bombay case (A.I.R. 1954 S.C.321). The Apex Court held that the Constitution itself provides for special provisions in the case of women and children by clause (3) of Article 15 and hence Section 497 was valid. Can exemption from criminal law be termed as a special provision? Well! The Apex Court has decided that way 57 years ago. We cannot question that.


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Legal Evangelist - TRIPAKSHA

Shona,

 

As you yourself said, husband agreed because he was under fear.

 

FEAR IS THE BIGGEST ENEMY. He should have taken the bulls by the horn.

 

Even on date, there is an easy way out, give her what she demands, or stick to your guns and fight it out.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com


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3rd year LLB

Firstly Dr Ramani, many thanks for your informative email on sec 497. I throughly enjoyed reading it and i really I hope I am able to be as well informed as you at some point in my career.

Thank you all for your comments, however, i must say that as much as everyone has given their inputs, apart from a few the others have only made derogatory, snide remarks about the husband. Not that it matters to anybody's sentiments, but some of the content, especially with regards to write shayari or hip swaying man ect have been very disappointing.

Just because we have degrees (whatever levels they may be at), it certainly does not give anyone the right to speak like that about someone. Especially if you are trying to set an example for the youngsters who are just about starting off. nobody knows what the other persons situation is and it isnt fair for one to be judgemental and say things just because they are on a forum where they either have to say things for the sake of saying them or to sound "Cool".

And really if there isnt anything that can be done about it, instead of making remarks, that are so disgusting, maybe, just maybe it would have been helpful there was something informative posted instead.

Is this really the guidance you guys as seniors want to give someone who has just kick started his/her career. Its a shame!!!

A very simple but sensible saying that goes a long way.. if you dont have anything nice/ helpful to say in a given situation... dont say anything at all!!!

regards,

Shona Parelkar


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