Introduction
India is a country where adultery is an offence which is considered to be wrong on social, religious, moral and legal grounds. It had a wider application in the history, and this can be said because, it applied only to commission of adultery between a man, either married or unmarried and a married woman, but also between a married man and an unmarried woman. The onus of adultery was consideration of marriage as a sacred institution and punishment for the breach of the same. Historically many cultures have considered adultery as a serious offence, and thus it even incurred severe punishments which were capital punishment, mutilation, torture etc.
What section 497 of IPC says?
The section of IPC says that “whoever has sexual intercourse with the person who is and whom he knows or has reason to believe to be wife of another man, without the consent or convenience 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 5 years, or with fine or with both. In such case the wife shall not be punishable as an abettor.”
The following ingredients essential for this offence: –
- Sexual intercourse by a man with a woman who is on whom he knows or has reason to believe to be the wife of other man.
- Such sexual intercourse must be without the consent or connivance of the husband.
- Such sexual intercourse must not amount to rape.
Since in an offence of adultery marriage is an ingredient, therefore, the fact of marriage must be established fully. It must be established that the marriage as an event took place and the parties are not simply living together. The particular number of witnesses must be examined to prove the fact of marriage full stop the evidence of the husband and wife that marriage between them took place is not sufficient to prove it according to Rangoon High Court when a man and women lived long together as husband and wife a presumption arises in favour of the marriage which must be rebutted.[1]
Connivance is the willing consent to accountable offence or a culpable acquiescence in the course of conduct reasonably likely to lead to the offence of being committed. According to Allahabad High Court, connivance is a curative expression meaning of voluntarily blindness to some present act or conduct to something going on before the eyes or something which is known to be going on without any protest or desire to disturb or interfere with it.[2]
Under section 497, a wife is not punishable as a better because author of the code was of the view that Indian society is of different kind which may well need a man to pause before he determined to punish infidelity of wives. every act of sexual intercourse amounts to an offence of adultery and if a person has sexual intercourse with a woman several times it cannot be said that offence is continue according to Nagpur high court it is undesirable that there should be successive prosecution complaint by aggrieved person is necessary under this section The court shall take cognizance of offence only upon a complaint made by the husband of the woman when the husband is absent the complaint can be made by the person who has been entrusted with the care of the women with prior permission of the court with the husband is idiot all you natal or is unable due to sickness makes complain it can be made by some other person on his behalf the complaint has to be filed under section 199 CrPC Code 1898 for section 198 (2) CrPC Code 1973.[3]
Adultery in India:
In Smt. Sowmithri Vishnu vs Union of India[4] it was contended that section 497 is violative of article 14 and 15 of the Constitution on the ground that it makes an irrational classification between men and women in that
- It conferred upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with the woman with whom her husband has committed adultery.
- It does not confer any right on the wife to prosecute the husband who has committed adultery with other women and
- It does not take in case where the husband has sexual relation with an unmarried woman with the result that the husband has, as it works, a free license under the law to have extra marital relationship with unmarried women.
But the supreme court rejected these arguments and held that it cannot be said that the defining of offence of adultery so as to restrict the class of offender to men comma any constitutional provision is a friend. It is commonly accepted that it is the man who is producer and not the women. The court further observed that this position may have undergone some changes over the years that women may have started seducing men but it is for the legislature to take note of this transformation and amend section 497 appropriately.
It was further contended that since section 497 does not contain provisions for hearing wife coma therefore it is violative of article 21 that is freedom of personal liberty. In connection with this question the court observed that this section is not violative of article 21 because although this section does not contain provision for hearing of a married woman with whom the accused is allegedly to have committed adultery but if she makes an application in the trial court that she should be given opportunity of being heard she would be given the opportunity, need the substantive 9 adjective criminal law bars the Court from affording a hearing to a party which is likely to be adversely affected by the decision of the court.
Judicial Pronouncement
Section 497 Is archaic and constitutionally unlawful
Section 497 deprives a woman of self-sufficiency, integrity and privacy. In embracing a notion of marriage that subverts true equality, it increases the violation of her right to life and personal rights. Sexual autonomy is a principle which is an integral party under Article 21 of the Constitution of India and falls within the scope of personal freedom. Respect for sexual autonomy is only created when the partners treat each other with respect and fair care. This section is a rejection of substantive equality in that it promotes the notion that women are inequal partners in a marriage, unable to agree freely to a sexual act in a legal order that considers them to be their spouse’s sexual property. It is violating Article 14 in this way. It is based on gender stereotypes and breaches Article 15 non-discrimination clause. In addition, emphasis on the dimension of connivance or the husband’s approval is tantamount to women’s subordination. It thus explicitly offends Article 21 of the Constitution.[5]
Section 497 To no longer be a criminal offense
A crime is something that is committed on the whole of society, while adultery is more of a personal matter. Dose of adultery does not fit into the concept of crime, as this would otherwise invade a marriage’s extreme sphere of privacy. Yet it still stands as a legal error and a basis for divorce. Everything occurs after committing adultery should be left to the husband and wife to decide, as it is something that can only require their own discretion. Declaring adultery as a crime would therefore somehow establish creeping inequality within the system.
A husband is not the master of his wife
The decision places emphasis on the fact that women can no longer, for that matter, be considered the property of their husbands or fathers. They are of equal standing in society and should have the opportunity to bring forward their stance.[6]
Section 497 was totally arbitrary and manifestly
This is absolutely and manifestly unreasonable and unfair as it gives the husband a license to deal with his wife, as he wants it which is grossly unnecessary and disproportionate. Section 497 of IPC does not require the wife to file any criminal proceedings against the husband.
Conclusion
The Supreme Court has recognized as unconstitutional the 150-year-old law on adultery which treats husband as his wife’s master. India’s then Chief Justice declares, the law of adultery is arbitrary and offends a woman’s dignity.
The Apex Court directly blows down the archaic and patriarchal law in our country in this recent landmark judgment. In modern progressive jurisprudential parameters and expansive constitutional vision, women cannot be seen as property of men.
It also stipulates that if the man consents to develop relationship outside the wedlock then there is no offence. The Apex Court states that the essential aspects of women’s dignity are autonomy, desire, preference and identity.
In this regard, the Apex Court refers the judgment of K.S. Puttaswamy and another v Union of India and others[7] (2017) where the Court declares that the right to privacy is a fundamental right as provided for in Article 21 of the Constitution. The Court has acknowledged women’s conceptual dignity and equality which cannot be curtailed.
In fact, the Supreme Court ruled that adultery can be a basis for civil problems such as marriage separation but it cannot be a criminal offence. However, adultery may not be the cause of an unhappy marriage, it may be the result of an unhappy marriage.
Section 198 of the CrPC is also declared unconstitutional along with section 497 of the IPC, thereby decriminalizing the adultery offence. Justice DY Chandrachud claimed that, Section 497’s history reveals that the law on adultery was for the husband’s benefit, for him to secure ownership over his wife’s sexuality. It was intended to prevent the woman from working out her sexual agency.
[1] AIR 1947 Rang, 261.
[2] Munir, (1925) 24 A.L.J.R, 155.
[3] In Re N.S Navle, AIR 1928 Bom. 530.
[4] 1985 Cri L.J 1302 (SC).
[5] Subrata Kumar Banerjee v Dipti Banerjee, AIR 1974 Cal 61.
[6] Sachindranath Chatterjee v Sm. Nilima Chatterjee, AIR 1970 Cal 38.
[7] 2018 SCC Online SC 1642.
NATIONAL LEGAL SERVICE AUTHORITY
STATE LEGAL SERVICE AUTHORITY
DISTRICT LEGAL SERVICE AUTHORITY
TALUKA LEGAL SERVICE COMMITTEE
COMPOSITION OF NALSA:
Patron-In-Chief – the one who is Chief Justice of India.
Executive Chairman – the senior most judge of the Supreme Court who is nominated by the President in consultation with Chief Justice of India.
Members- nominated by the Central Government
Member-Secretary of the Central Authority- appointed by the Central Government.
CONSTITUITIONAL PRESPECTIVE:
India Constitution in its Chapter IV pledges free legal aid should be provided to all and equal justice should be made available to the poor and weaker section of the society.
According to Article 39A of the Constitution of India State shall secure that legal system promotes justice and free legal aid by appropriate legalisation schemes and ensure that justice should not be denied due to economic reasons or other disability. Article 14 and 22(1) states equality before law and legal system should promote justice on a basis of equal opportunity to everyone.
NALSA was constituted under Legal Service Authority Act 1987.
Chronology of NALSA
5TH December 1995 NALSA was constituted.
17th July 1997 A.S Anand headed as Executive Chairman
December 1997 First member secretary joined the committee
January 1998 Other staff member got appointed
February 1998 NALSA started proper functioning for the first time
October 1998 A.S Anand became Chief Justice of India and was headed as Patron-in-Chief
NALSA aims to resolve dispute at pre-legislative stage and if a trail is in court a person to whom legal aid is granted spend nothing during litigation once it is supported by NALSA.
9th November celebrated as National Legal Services Day. It was started by Supreme Court in 1995 with the view to spread legal awareness and promote legal facilities which are available for citizens.
FUNTIONS OF NALSA:
NALSA with its aim to setup Lok Adalats constituted permanent and continuous Lok Adalats in every district of nation. SLSA is maintained by NLSA, they provide them funds for legal aid services but their infrastructure has to be maintained by state government.
The authority tries to resolve disputes in pre-legislative stage by methods of mediation, negotiation and arbitration.
NALSA organizes legal aid camps to encourage the people to solve their problems through Lok Adalats and to aware the weaker section of the society about the rights available to the them.
For women, SC AND ST and labors the organization provides grants in various scheme.
The organization has made the scheme to keep a check upon the working of the legal aid centre.
Clinical Legal Education programmes has been developed and it has to be establishes in law colleges and universities and the authority supervises it.
It undertake and promote the research in the field of legal services with special reference to the need of such services among the weaker section.
PUBLICATION OF NALSA:
‘Nyaya Deep’ is the official newsletter of NALSA. It issues its publication in English, Hindi and in other regional languages. The motive behind this press release is to aware citizens about the significant schemes available for weaker section of society, to inform people about availability of Lok Adalats and convey the salient provisions made by NALSA for citizens. It contains ideas and views of articles and helpful information. It showcase the functions of legal services in entire nation.
ELIGIBILTY FOR FREE LEGAL SERVICE:
Section 12 of Legal service Authority Act provides legal service to:
Member of SC/ST caste
A victim of human trafficking or a beggar
Woman or child
Mentally ill or disabled
Victim of mass disaster, earthquake, flood, drought or industrial disaster
Industrial workmen
A person whose annual income is less than nine thousand.
LOK ADALATS:
Lok Adalats is one of the form of Alternative Dispute Resolution methods, the cases which are at pre-legislative stage or pending before the court are settled in Lok Adalats . Lok Adalts have been given its statutory status under Legal Service Authority Act, 1987. The award given the Lok Adalats is considered as decree of a civil court and it is called ‘award’, this award is final and binding on both the parties if the party is not satisfied by the award then they free to start trail proceedings in court. Lok Adalats consists of a judicial officer and the other members as prescribed by the Centre, State or District Authority.
The Lok Adalats refer to those cases which are brought with the consent of both the parties of the disputes or either party makes an application for reference. Disputes shall be solved on the basis justice, equity fair play and other legal principles. If the dispute is not resolved by the method of conciliation then the matter is returned to the concerned court.
LEVELS OF LOK ADALATS:
State Authority Level: The Member Secretary of the State Legal Service Authority would constitute the benches of Lok Adalats, each bench comprises of senior most judge of a High Court or a senior most judicial officer either one or both the member should be of a legal profession and a social worker who is indulged into the activities of upliftment of the weaker section and interested in the implementation of legal schemes and programmes.
High Court Level: The Secretary of a High Court Legal Services Committee would constitute the benches of Lok Adalats, each bench comprises of senior most judge of a High Court or a senior most judicial officer either one or both the member should be of a legal profession and a social worker who is indulged into the activities of upliftment of the weaker section and interested in the implementation of legal schemes and programmes.
District Level: The Secretary of District Legal Services Authority would constitute the benches of Lok Adalats, each bench comprises of senior most judge or a senior most judicial officer either one or both the member should be of a legal profession and a social worker who is indulged into the activities of upliftment of the weaker section and interested in the implementation of legal schemes and programmes or a para-legal activist of the area preferably woman.
Taluka Level: The Secretary of Taluka Legal Services Committee would constitute the benches of Lok Adalats, each bench comprises of senior most judge or a senior most judicial officer either one or both the member should be of a legal profession and a social worker who is indulged into the activities of upliftment of the weaker section and interested in the implementation of legal schemes and programmes or a para-legal activist of the area preferably woman.
PERMANENT LOK ADALATS:
Permanent Lok Adalats have been established as permanent bodies. It consists of Chairman and two members who compulsorily promotes pre-legislative conciliation in matters of Public Utility Services. The Permanent Lok Adalts gets the jurisdiction of the matter only if the parties after the conciliation fails to reach to settlement of the dispute. The award given by the Permanent Lok Adalt is final and binding on both the parties.
MOBILE LOK ADALTS:
Mobile Lok Adalts have been created in various parts of the country which travels from one location to another to resolve dispute in order to facilitate the resolution of disputes through this system.
LEGAL AWARENESS LITERACY CAMPS:
NALSA along with other institutions organize different type legal awareness activities to aware people about the rights and facilities available to them. To fulfill their very purpose the organization conducts various activities like lectures, seminars, street plays, cultural programmes by school students on legal issues, broadcasting of jingles and short documentaries. It also conducts the competition like drawing, debate, essay quiz and many other on legal topic. The legal topic is decided by the organization to give information and aware people about the same the topic varies from place to place depending upon the literacy of the location.
NALSA conducted around 60,000 Legal Literacy Awareness Camps in each year between 2012-2014 and around 1, 00,000 Legal Literacy Awareness Camps in each year during the tenure of 2014-2016. Overall NALSA conducted 3, 46,509 Legal Literacy Awareness Camps in entire nation.
CASE LAWS:
NALSA V. UNION OF INDIA AND ORS.
National Legal Services Authority v. Union of India was a Supreme Court Landmark Judgment decided on 15 April, 2014 by a bench comprising of Justice K. S. Radhakrishnan and Justice A. K. Sikri.
This Judgement is concerned of seeking redressal for grievances of the transgender community who seek a legal declaration for their identity and rights in the country and says that non recognition of their identities violate Article 14,15,16 and 21 of the constitution of India.TG community comprises of Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they as a group have to face a lot of problems, abuses regarding their gender, they are treated as untouchables. So there is a need to change the mentality of the people and to accept this group as citizens of our country with equal protection of rights guaranteed by the constitution same as of other genders like male and female.
Abdul Hasan and National Legal Services Authority Vs. Delhi Vidyut Board and others
The petitioner filed a writ petition before Delhi High Court for restoration of electricity at his premises, which was disconnected by the Delhi Vidyut Board (DVB) on account of non-payment of Bill. Inter alia, the grievances of the citizens were not only confined to the DVB but also directed against the State agencies like DDA, Municipal Corporation, MTNL, GIC and other bodies, Court notices were directed to be issued to NALSA and Delhi State Legal Service Authority. His lordship Hon’ble Mr. Justice Anil Dev Singh passed the order giving directions for setting up of permanent Lok Adalat.
The scholarly observations of His Lordship Mr. Justice Anil Dev Singh deserve special commendations and are worthy of note. It will be profitable to reproduce the important text and abstract from this judgment, which should be an eye opener for all of us. It should also steer the conscience of all, as there is an increasing need to make Lok Adalat movement a permanent feature.
by – Harshul Daiya (Intern), Mansi Sharma (Volunteer)
