I fail to understand as a man who has a reasonable understanding of the English language, whether the ‘meaning’ of the words have assumed meanings not conveyed through the words of the statute, and if so, as a common man of normal prudence would my understanding of the law be tenable at all?
Let us read the provisions of Section 497 of the Indian Penal Code:
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.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 5 years, or fine, or both—Non-cognizable—Bailable—Triable by Magistrate of the first class—Non-compoundable.
Upon a plain reading of the provisions of Section 497 it appears to me that the following ingredients are essential for the commission of the offence.
0. The perpetrator of the offence has to be a male;
0. That male has to have had sexual intercourse with a woman who should, at that time of such intercourse, have been married to a man, other than the perpetrating male;
0. The perpetrating male should know for a fact that the woman with whom he had intercourse was married to someone other than himself, or that the perpetrator should have had reasons to believe that she was married to some other man at the time of such intercourse;
0. Such intercourse should have been without the consent or connivance of the man married to that woman, with whom the perpetrator is alleged to have had sexual intercourse;
0. That such intercourse should not be within the ingredients of the offence of rape; &
0. The woman cannot be made an abettor of this offence.
What I understand of these ingredients is that if a man despite knowing that a woman is married to another man though has sexual intercourse with her with the consent of the married woman (not being rape) but without the consent or connivance of the husband, the PERPETRATING MALE has to be punished under the provisions of Section 497 of the IPC for Adultery.
There are multiple issues which flow out of this offence. If during the subsistence of the marriage, the husband had access to the woman during the period when she conceived the child of the perpetrating male, the presumption in law would be that the HUSBAND OF THE MOTHER OF THE CHILD WOULD BE THE FATHER OF THE CHILD under Section 112 of the Evidence Act.
We have been squabbling in the courts over not bastardising children by skirting illegitimacy issues of a child, but what about perpetrating a lie in the mouth of a child who believes that his/her mother’s husband was her biological father?
If for any reason the child after reaching adulthood finds out that facts were not facts and embarks on a quest to find hi/her biological father, we would not only have a nice Bollywood script on our hands at the cost a generation of such adults, but also traumatise those adults irretrievably.
You might ask: What if the woman had sexual intercourse with a man out of consent from her husband and conceived? In such a case, the risk of exposure is less as the couple had ‘agreed’ and it would not be a ‘discovery’ to the husband consequently the husband may not have any sane reason to expose. The risk at least gets minimised to the extent that the child may not be embroiled in taking sides with either of his/her parents. With Time, the fact could become a non-issue.
The unfairness that follows by casting a burden on an unsuspecting husband to maintain not only the cuckoo but also the she-cuckoo revolts against the much bandied ‘polluter pays’ Principle in the Environmental issues.
There are facts which one can let pass, but as a society, though there are bound to be infringements, we need to uphold certain positions which would not encourage lies which could spill over to generations.
The cuckoo nest story is a lot decent as the egg breaks into a cuckoo and flies out in due course, but in these cases, the she-crows egg itself has been fertilised by the cuckoo!
I am inclined to read the provisions of Sec. 497 as a norm of the society to uphold the Brotherhood of Man. The underlying principle is hoary and timeless: No man in the normal course, wants to nurture and lavish his resources on whom he doesn’t believe to be his child. Much less, leave a legacy at his passing away.
Men leave their women folk behind like Uriah and go to the battlefront to eke out a living, sometimes for honour and mostly impelled by a drive to improve his economic conditions. In his absence, there are bound to be Davids, who might watch, entice, ensnare and subsequently commit adultery, which could end up in conception, as in the case of Bathsheba. But the society has to have some laws in place to assure those menfolk who have to depart in pursuit of business. It is for this reason that this Section was put in place.
Like in any law, it starts with harsh punishments and after achieving a certain threshold of compliance, the law falls into desuetude. Likewise Section 497 had fallen into disuse. But that Damocles’ sword was essential to those Davids, who could go full fledged in sowing their oats on unsuspecting women.
By an amendment to this section in 1992 by the then united Andhra Pradesh Government, this was made into a COGNIZABLE OFFENCE. As in communities, which are quartered by castes, these adulterous issues could end up in spilling of much blood.
To interpret the provisions of Section 497 of the IPC as a triumph of ‘equality of genders’ is ridiculous. If the law had been interpreted by striking down the “abettor” clause as DISCRIMINATORY, in terms of Article 14 of the Constitution of India, I could have conceded, but not when the breach of the bond of brotherhood is not visited with a threat of incarceration.
I see the striking down of Section 497, as the removal of the final societal sanction against breaking the bonds of Brotherhood.
Man has to have some taboos. It is not for nothing that married women in our society were encouraged to wear prominently vermillion on their foreheads as a mark of them being married. Even if one were to get past that, there were rings in the second toes of married women’s feet. The reasons for a man to know that an Indian woman is in a matrimony are plenty, whether he looks her in her eye or looks at her feet. ‘Notice’ can never be wanting, but now that the threat has gone, it is only limited to ‘age’ and ‘consent’.
Yeah! Some direction ‼️
Archive for September, 2018
A Fallacy is a mistaken belief, especially one based on unsound arguments.
In the movie CASABLANCA, the Protagonist Humphrey Bogart is asked by the German Major, in charge of the then occupied territory of French Morocco: “So what brought you to Casablanca?”
Without hesitation our hero says “For the waters.” (Meaning water springs and spas)
Major Strasser says: “ But there aren’t any spas around here.”
Bogart says, “Oh, I was misinformed.”
Or so the conversation goes. Please don’t pick holes on my recollection of that scene, as that would derail a whole lot of hypotheses I’ve built around it‼️
The point is that Bogart resented the presence of the Germans, and Major Strasser in particular, in Casablanca where Bogart was successfully running his ‘gin joint’ with an adjunct gambling den. The Major had collected, or at least from the tone of Bogart, it appears that Bogart suspected that Strasser had a good idea of Bogart’s colourful unsavoury past and wanted to gain an upper hand over Bogart by either forcing him to tell a lie about his own past and catch him, which Strasser attempted, or admit his past.
Bogart being Bogart, through a line well written by the script writer states: ‘He was misinformed’, thus disengaging our hero from the trap laid by the German Major.
In fact the audience knew that the reply of Bogart was a FALLACY.
Likewise DIRECTIVE PRINCIPLES OF STATE POLICY in the IV part of the Constitution, which starts with Article 36, titled ‘Definition’ raises hopes of a detailed explanation of what Directives of State Policy meant, however it peters to adopting the meaning of ‘State’ as defined in Part III of the CoI.
It is through Article 37 that the larger picture is accepted and the functions of DPs are explained.
37.Application of the principles contained in this Part
The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
There are the following prescribed under this Article, which are:
0. That they are not enforceable by ANY COURT.
0. That the principles laid down are FUNDAMENTAL in the governance of the country; and
0. That a duty has been cast in the State to apply these principles in making laws.
What emerges out of these prescriptions is that neither the state (except through legislating on these principles) nor individuals or entities have recourse to the courts for implementing these ‘principles’ .
Secondly, a duty has been cast on the State to carry out their Legislative mandate under the guidance of these principles.
Read together, it means and only means that in the absence of a Law, these principles cannot be invoked by the Government (means the Executive) nor by individuals or entities.
Whereas, I have seen a Harvard Professor say that these principles are meant to be implemented by the Government, implying that even in the absence of a LEGISLATED LAW, the government could invoke desultorily one of those principles and start implementing their likes and dislikes, as if they are duty bound to implement the same.
I suppose the protection from misuse of this Article is that the even if laws are made ostensibly in pursuance of a Directive Principle, the Law enacted would be subject to the touchstone of the Guarantees granted under the Constitution, like the Fundamental Rights and in the event of a conflict between those legislations and fundamental rights, a fine balance has to be struck by the Higher Judiciary and pronounced on accepted doctrines and principles.
Directive Principles, especially relating to the slaughter of Cow, calf, milch & draught cattle; environmental issues; uniform civil code; and separation of powers have become tools in the hands of self proclaimed implementers of the Directive Principles, which is tragic. .
In the process of Nation building all these issues cannot be taken up at one go, as that would be a severe strain on the resources of the State; and issues which need a gestation period cannot be prematurely taken and forced on the populace, therefore it should be left to the wisdom of the Legislators to legislate. And once the enactment passes the legislative sanctions, the Government and the people would be vested with duties, liberties and rights but not before that.
Clutching at Directive Principles to advance their lopsided agenda, with a partisan motive by a lumpen few, is nothing but intellectual terrorism.
Let us become aware to identify and distinguish a motivated deleterious agenda disguised as an enticing fallacious Constitutional mandate.
The phrase ‘making of laws’ is wide enough to include their interpretation and therefore the courts must inferpret the laws in the ‘light of the Directive Principles’ (Balwant Raj Vs. the Union of India (Uoi) – Supreme Court Judgment 1966 – Dhawan .J)
This interpretation of the law doesn’t appear to be tenable in the light of the clear words of the provisions of the Article which says ‘the duty of the State in applying …’; and the State doesn’t include the Courts. Secondly, Judicial Pronouncements cannot be called as ‘making of laws’ rather they are meant to be ‘interpreting the provisions of law’.
It has been the general opinion of interpreters of the Old Testament to blame Samson’s weakness for women as the sole reason for the tragic end of Samson.
My understanding of Samson is significantly different from this general opinion, which is a Trojan horse for smuggling the pet theories of the moralists.
Being Moral is entirely different from being a Moralist. A Moralist is one who goes around prescribing standards of ‘desirable’ behaviour for others to follow.
Samson’s association with Delilah, and before that with that woman from Timnath, whom he married; and the Harlot from Gaza are bandied about as reason for his tragic end. No doubt Samson’s choice of women were mostly Philistine women, who were the “Rulers” of the Jews then.
A necessary parallel has to be drawn to King David, who was no less active in the same field as Samson, but King David’s choice starts with Mehrab as the trophy for having defeated Goliath. When Mehrab was not too keen on becoming the spouse of David, a single swallow making the summer then, settles down for Michal, who according to the Bible was in love with this young hero, more as a compromise to gain access to be counted as a member of the King’s family. Then David marries Abigail, who had met him the previous night and conveniently for David, Abigail’s husband dies the next morning putatively out of a broken heart for his indiscreet words to David’s men the previous day‼️ David’s other women were Maacah, a Princess of Geshur. All these women gave David access to the princely power through Michal; economic resources through Abigail; another Princely cohabitation with Maacah. As regards Ahinoam and Haggith, except that the latter was the mother of Adonijah, very less is known of them. Lastly, Bathsheba, who was the mother of Solomon through David and the one who was involved in the accession politics after David became incapacitated in his last days. But the thread which runs through the choice of the women of David is that his priorities as a Ruler never took a backseat. More than that David never succumbed, except in his last leg, to the charms of these women so as to risk his Life.
But Samson played with fire right from that woman from Timnath; the harlot at Gaza; and finally with Delilah. Samson’s behaviour and association was risky from the outset.
But is that all there was to Samson? I guess not.
Samson was from the tribe of Dan. Dan as a tribe was the last tribe to receive its territory from Joshua, just over Philistia and West of Ephraim and Northwest of Judah and South of West Manasseh. Dan was a small enclave East of the Mediterranean. Therefore a tribe hemmed in on all sides. Surrounded by the big boys like Ephraim, Manasseh and Judah.
Let us get back to the origins of this tribe. Dan was one of the sons of Bilah, maid of Rachel.
Not a very bright prospects for a person born to one of those handmaiden Tribes of Israel. Even this territory was divested and in time Dan ended up in the North along with those tribes, not of stature. But at least they escaped the slings & arrows of their supercilious half-brothers.
Even Gideon of Manasseh had to say : “Is not the gleaning of the grapes of Ephraim better than the vintage of Abiezer?” to Ephraimites to palliate their hurt pride, as Gideon had not included them at the beginning of his campaign against the Midianites. Such was the hierarchy of the tribes. Uterine brother Ephraim was above Manasseh, how much worse would have been Dan’s position with Ephraim, Judah and Manasseh encompassing Dan and a common border with Philistia, to boot!
If I should exemplify with another example, Jephtha, the Gileadite had trouble with the Ephraimites even after his victory over Ammonites and had to encounter the wrath of the ‘superior’ Ephraimites thus:
“Wherefore passedst thou over to fight against the children of Ammon, and didst not call us to go with thee? we will burn thine house upon thee with fire.”
When such was the case, what would have been the plight of a brilliant hero Samson, from Dan?
If the reader thinks I am imagining please read the attitude of the tribe of Judah, when Samson was on the rock of Etam after he had set the fields of the philistines afire.
Then three thousand men of Judah went to the top of the rock Etam, and said to Samson, Knowest thou not that the Philistines are rulers over us? what is this that thou hast done unto us? And he said unto them, As they did unto me, so have I done unto them.
Here was a strong man Samson who should have been assisted and his lack of tact should have been supplemented by others, but Alas, Judah is trying to educate the irrepressible Samson into subjugation by teaching Samson who their masters were‼️
I pity that generation of Judah, which had not only become servile but were without the spirit of resistance when they had a hero like Samson around.
Judah saw the Danites as lowborn and wouldn’t aid his attempts.
I don’t say that Samson was a great man manager, but those are skills which could be supplied through advice and mentoring. Till Danites captured Laish and renamed it as Dan in the Northern tip, they were hemmed in between half-brothers who were intent on suppressing and stifling Danites and I feel that this also contributed greatly to the downfall of Samson.
Art is to be relished and not to be explained, the reason according to me is that there is a certain internal ambience at the point of reception of a work of Art. That ‘internal ambience’ is made up of one’s knowledge, feelings, mood, proclivity and the serotonin levels of circulation in one’s brain.
But there are works of art which not only startlingly attract us, but keep us occupied with the associative thoughts related to that work of art or that of the artist’s.
Very few artists have had their feelings expressed in words like Vincent Van Gogh. His epistolary saga with his brother Theo is intense, sincere and open to the point of raw vulnerability.
His paintings in ‘China blue’, those bright yellows, twirling strokes and day-to-day themes are his trademark but there was something more to his works. Those were the stories which were built around his Life. A Life, not merely reduced to the somber ending – which is the case with most humans, but lived VIBRANTLY and INTENSELY. Who could have had a distraught moment with another posthumously exalted great artist like Paul Gauguin which led to Vincent’s earlobe being chopped off by Gauguin and yet never implicated another genius to the objectives of the Arles criminal justice system?
How about that myth that Van Gogh presented his chopped off lobe to a prostitute with whom he was in love‼️
All these facts which the art historians are floating from time to time cannot be verified and proven with indelible accuracy. They were lost without a trace and yet we are weaving our ‘facts’ and our earlier generations had woven their ‘facts’ too; and when we were naive we believed as if they knew best and we learnt it from them.
Despite all these vortices of facts there is a painting of Van Gogh with a bandaged ear with a look in his face, which I wonder how a self portrait painter could have captured and reproduced.
Was that traumatic look in his eyes and the wrinkles on his face the pain of the ear or was it the loss of his friend Gauguin, is left for our imagination.
Van Gogh made me see art in the common things of life. His ‘infatuator’ Gauguin had rightly said that all art was either plagiarism or a revolution. Van Gogh’s paintings are a Revolution. They elevated common things and people around us and brought out that ‘timbre’ or that ‘thisness’ to each item or person he painted.
How can we abandon the myth that Van Gogh cut off his own ear and presented it to a woman whose profession did not allow her to be ‘chaste’ to his love?
How can we allow facts that Van Gogh did not commit suicide but was murdered? That takes away the heroism of a man who had been burdened with oscillating sanity. To be murdered as an ending to an artist like Van Gogh is not befitting. Caravaggio, yes. A street brawler, yes- but a sincere, sensitive and intense soul should be given the power over his own life.
How can a movie like “At Eternity’s Gate” destroy such a powerful ‘fact’ which I believe?
The movie is supposed to have opened to excellent reception in Venice and due in the USA in mid November.
I’d hate to see a movie with that ending. What a pity, that the factmakers want to destroy Vincent even after his death. Allow the dead man his dignity of having taken his own life and let us keep him in the company of the Alpha males like Hemingway.