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 ‼️