Cover Story

ADULTERY MAY DISPUTE PATERNITY

Coitus pluralis
“Virgins indulge in sex for curiosity;
Harlots for money,
Widows for remembering the good old days,
Wives out of a sense of duty,
While the pure pleasure of sex is possible only in adultery.”

Learned author-journalist, Khushwant Singh once in his typical humorous and satirical tone had quoted the above version of an unknown 12th Century poet, in Malice Columns of Hindustan Times, dated November 12, 2005.

The word ‘adultery’ derives its origin from the French word ”avoutre” which has evolved from Latin verb “adulterium”, which means “to corrupt”. The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as “adultery.”

It is an established fact that human beings by nature are polygamous and promiscuous. Their monogamous lifestyle is the artificial behaviour forced upon by societal norms, laws and cultural influences, which is always at the edge of breaking down, when faced with the slightest rickety moment.

Lexicon meaning of Promiscuity are: the state of being promiscuous; immorality. Promiscuity is the practice of having sex frequently with different partners or being indiscriminate in the choice of sexual partners.

Promiscuity tends to be frowned upon by many societies, expecting people to have committed, long-term bonding relationships with single partners. Historically, compared to men, women’s promiscuity has been considered as more critical and kept under surveillance socially. The uncontrolled promiscuous lust never sleeps. Promiscuity can also be known as “Coolidge effect”, or the “rooster effect”. One day President Calvin Coolidge and his wife Grace Coolidge were touring a farm. While President Coolidge was preoccupied elsewhere, Grace was learning about the management of hen house. She noticed a rooster intensely engaged in a frenzy of copulation. “how often does he do that?” Mrs. Coolidge asked the farmer. “Oh my, he can do that ten times a day”, replied the farmer. “Please inform the President of this when he stops by”, said Mrs. Coolidge.

When the President toured the hen house, the farmer dutifully informed the President as Mrs. Coolidge instructed. Upon being told, the President asked, “Same hen every time?” the farmer shook his head, “Oh no, Mr. President, its always a different hen every time”. President replied, “Please tell that to Mrs. Coolidge”.

Female promiscuity has been a recurring theme in mythologies and religions. The Bible features many female personages identified as being promiscuous.

Evolutionary psychologists have theorised that taboos against female promiscuity evolved on the basis of “paternity anxiety”. DNA tests being yet to be absolute determinant, it is impossible to accurately determine paternity, unlike maternity. A husband of an adulterous wife risks spending paternal investment on offspring who carried genetic material of another male rather than of his own. Such apprehensions in the past got translated in to sexual jealousy and insecurity, which led to inhuman preventive customs e.g. female genital mutilation, sati pratha, etc.

Anthropologists believe that the “Institution of Marriage” came in to existence 4350 years ago. With the growing of civilizations, society had a need for more stable arrangements.

The first recorded evidence of marriage ceremonies uniting one woman and one man dates from about 2350 B.C, in Mesopotamia. Over the next several hundred years, marriage evolved into a widespread institution embraced by ancient Hebrews, Greeks and Romans.

The primary purpose of ‘marriage’ was to bind one woman to one man, and thus guarantee that a man’s children were truly his biological heirs. In the betrothal ceremony of ancient Greece, a father would hand over his daughter to groom with these words: “I pledge my daughter for the purpose of producing legitimate offspring.”

The Vedas speak of “gracious, smiling women” and they regard the love of man and wife and the motherhood of a woman with a profound sense of sanctity.

The Hebrew Bible or Old Testament prohibits adultery in the Sixth of the Ten Commandments (Exodus 20:14).
In Islam both woman and man will be punished for adultery. Quran says, “The fornicatress and the fornicator, scourge you each one of them (with) a hundred stripes. And let not pity for them withhold you from enforcing the sentence of Allah, if you believe in Allah and the Last Day, Quran (24:2).”

According to Manusmriti, Chapter: VIII, Verse:371-72, “When a woman, proud of her relations(or abilities) deceives her husband (with another man) then the King should (ensure that) she be torn apart by dogs in place much frequented by people. And the evil man should be burnt in a bed of red hot iron.”

The Constitutional validity of Section 497 of IPC was challenged in Bombay High Court in 2011, by one Deepak Mirwani, on ground that it had no relevance in present context. Deepak Mirwani was facing prosecution for committing adultery with a married woman. Mirwani contended that the right to have physical relations with a consenting party emanates from the “Right to life’. However, Mirwani’s contentions miserably failed to convince the Hon’ble Court. The Division Bench of Justice B.H. Marlapalle and Justice U.D. Salvi, came down heavily on the petitioner and said, “If your challenge is accepted, there will be no civil society left.” The Bench observed, “In fact there is a need to amend the proviso in order to bring woman also under its purview.”
However, further the provisions of Section 497 of IPC were found defective and gender biased. Viewing this, an Italy based Indian businessman, Joseph Shine, filed a PIL in Supreme Court. Petitioner’s advocates Kaleeswaram Raj and Suvidutt demanding gender neutrality argued that why should only a man (adulterer) and not a woman involved in an adulterous relationship be prosecuted? Their contention was that when sexual intercourse takes place with the consent of both man and woman, there is no justification for excluding one party from criminal liability.

The petitioner pointed out before the Court that Section 497 of IPC and Section 198 (2) of Cr.PC are gender ‘discriminatory’, hence unconstitutional. On December 08, 2017, the three judge Bench, headed by CJI Dipak Misra, issued notice to Government of India. On September 28, 2018, the Supreme Court struck down Section 497 of IPC – the law against adultery by men as unconstitutional.

Learned Advocate O.P Saxena, in total disagreement with Supreme Court’s judgement viewed that families are the essential building blocks of civilisation. Adultery on the contrary is objectionable on social, moral, religious and legal grounds. The impugned judgement lacks clairvoyance. Its far reaching-consequences are destructive, disastrous, which will result in frequent number of divorces and murders of spouses.

Saxena questioned very logically that if everybody has sex with everybody else, there is no saying who is the daddy? Saxena pointed out that the essential purpose behind monogamous institution of marriage has been the certainty of “Paternity” and “Guarding of the nest”.

Saxena cited the living example of former deceased minister, N.D Tiwari and Ujjwala Sharma case in which Ujjwala Sharma was cheating on her husband Bipin Sharma for almost 30 years as Bipin thinking Rohit Sharma his son had raised him as his own blood. A recent DNA test proved that Rohit Sharma was born to Congress leader N.D Tiwari and Ujjwala Sharma. The conception in the late 1970s happened when Ujjwala’s marriage to Bipin Sharma was subsisting. This fact came to be known after Rohit filed a “paternity suit” in High Court of Delhi in 2007. However, this is not the isolated case of its kind. There must have been many more such undiscovered silent cases around us and now when the adultery has been “legalised” by the Hon’ble Court, one can anticipate more births of illegitimate children.

Supporting Saxena’s view, Supreme Court lawyer, K.C Kaushik, raised the issue of inheritance and succession of children with disputed paternity. Kaushik pointed out that there is no relevance left out of Hindu Succession (Amendment) Act, 2005. How the daughters in a joint family that is governed by the mitakshara law will now claim equal rights over the coparcenary property of their father?

Kaushik will not feel surprised if one day, the Court will strike down the Hindu Marriage Act, 1955; Hindu Succession Act; Section 494 of IPC, and Immoral Traffic (Prevention) Act, 1956.

Kaushik pointed out that the CJI in the Joseph Shine case observed that “adultery law unlike the bigamy law under Section 494 of IPC, does not make the offence gender-neutral. Under the bigamy law both men and women are liable for prosecution. Still both man and woman have a sacred duty to protect the sanctity of marriage by not entering in to an adulterous relationship.” This means that the Hon’ble Court does legalise adultery within monogamy but does not approve it in bigamy. Is this not the double standard and irony?, asks Kaushik.

The court also observed, “A woman can not be asked to think as a man or as how society desires. Such a thought is abominable.” On this, Advocate Kaushik questioned that a prostitute or sex worker is also a woman, why then her core identity is being slaughtered by not allowing her to carry out her work?

Lastly, Kaushik quoted the Court as saying, “All historical perceptions should evaporate and their obituaries be written.” On this, Kaushik pointed out that all laws are designed and made on the basis of the existing societal norms, traditions, values and culture. The term ‘culture’ is comprehensively defined by British anthropologist Sir Edward Burnett Tylor as “that complex whole which includes knowledge, belief, art, morals, law, customs and any other capabilities and habits acquired by man as a member of society.” Kaushik quoted T.S. Eliot, who in his “Observation on Culture” argues that the basis of culture is religious beliefs. Christianity formed the basis of European culture and Vedas formed the fundamental values of Indian culture. Kaushik expresses shock on evaporating of the rich cultural heritage of India by none else but the apex court.

Colonel (Retd) Sanjeev Kaul reacting to Court’s view that Section 497 of IPC is archaic enacted by British and that ”……adultery does not fit in to the concept of a crime…. It is better to be left as a ground for divorce,” said that the entire Indian Penal Code is archaic and was enacted by British in the year 1860, why not to strike down the entire Code as a whole? As a matter of fact the problem of section 497 IPC and 198 Cr PC was of their under inclusive nature which could have been amended. Declaring the provisions unconstitutional is not acceptable to common sense.

Globally renowned Cardio-logist and social activist, Dr. H.K Chopra, says, “The monogamous institution of marriage is endowed with ‘high sanctity in Indian culture and is one of the vital social masterpieces. The apex court’s judgement decriminalising adultery has not only ruined that pious institute but has also opened up a Pandora box of social ills, leaving behind it the trail of enormous dangerous side effects.

Dr. Chopra pointed out that it will be a huge dilemma for the children as on suspicion of paternity, adulterous wife’s husband shall neither inherit his property to children nor will maintain them. In the result of ‘legally approved infidelity’, there will be an increased level of psychological and social chaos, resulting in frequent divorces and violence.
Giving medical reasons of bonding behaviour, Dr. Chopra said that there is ample evidence that the more you employ and enjoy bonding behaviours, the more sensitive your brain becomes to the neurochemicals(such as Oxytocin) that helps you to feel loving and intimately connected.

Talking to Lawyers Update, Prof. (Dr) G.S. Bajpai, Registrar, National Law University, said, “India offers astounding variety in virtually every aspect of social life. As we are developing nation, differences or rather changes are taking place in the contemporary Indian culture, especially with reference to kinship and marriage. Yet, amid the complexities of Indian society, widely accepted cultural themes enhance social harmony and order.

D. R. Kaarthikeyan, former Director of Central Bureau of Investigation (CBI), has supported the judgement. Kaarthikeyan is in agreement with the view that the monogamous institution of marriage is endowed with “high sanctity” in Indian culture, but the judgement decriminalising adultery has not ruined the monogamous institution of marriage. With regard to children to be born with adulterous wife, Kaarthikeyan said, “let this be decided by the husband and wife.”

A leading advocate Navin Kumar Jaggi, and his colleague Mansimran Singh Syal, agree in totality that the cultural heritage of India, as an inclusive society is of paramount importance for the social health and survival of the Indian society. They also agree that the concept of marriage as a monogamous entity holds a prime status and is treated with the highest sanctity.

Monogamous marriage is one of the social masterpieces of the Indian culture for centuries, but the recent judicial pronouncement may not have the treacherous effect of ruining a pious institution, though to some extent, it may dilute its effectiveness. Jaggi and Syal are of the view that the section 497 of IPC was required to be suitably amended instead of being struck down.

Renowned Advocate and Author Yawer Qazalbash said, “Shastric injunctions mandate that the ‘marriages are made in heaven’, which is not only considered institution of marriage as pious, but also the paradigmatic ethos sanctify the marriages as spiritual as well. Any dogmatic change in the age old believed perceptions would not only dilute, but has a capacity to disintegrate the institution itself. Family is basic founding unit of any society, and if by some means the unit is made to go to shreds, no one should expect the survival of the whole entity to remain intact, what to say of its health. ”

The judgment in question of the apex court is not only bereft of vision, but also reason as well. By de-criminalizing the adultery, Hon’ble apex court has in fact given a license to scoundrels, prowling among the society, as well as fun seeking other half, who arrange “hen parties” or the like for gratifying their libidos. At the same time the seducing adulterous wife was not the least affected by the said judgment, because from before she had been admonished or spared by the law to be included as an “abettor” under Section 497.”

“In the enthusiasm the learned Court did not think about the apathies of the weak hapless “victim” husband of adulterous wife, who has no recourse open now under the law to take legal action against the powerful scoundrel and the erring wife.”

“Besides, under the norms developed through recently recognized legal branch of ‘Victimology’, the said judgment has abrogated the rights of victim husband to prosecute the strong manipulator and aggressor adulterous male.”

“Nature had bestowed only to women the child bearing capacity, and that was why in the very distant past women were restricted to marry a single husband under all systems around the world, so that purity of blood may be ensured; though, there was no knowledge then about DNA or genetic transfer of human traits through children.”

“A far sighted result of the judgment could be seen as a large number of children fighting court battles for proving their paternity, for dignity at least, if not for inheritance, through DNA evidence etc, because Section 112 of Indian Evidence Act, 1872, may not come to their rescue.”

“Even at the initial stages of development of marriages among different systems, the society had recognized the right of woman to choose her mate; but, the exercise of that right had always and everywhere been restricted to once in a lifetime for women. The later developments, found through their actions, that they were not content with that practice of choosing their mate for only once in her lifetime. In the bottom of ‘women’s liberation movement’ is the (untold) wish for liberating themselves from exercising that right for only once but to choose their mates whenever they liked, throughout their lives.”

Chanakya once said about sexual urge of women (which he mentioned as eight times more than men):
“Strinam Dwigun Aharo Lajja Chapi Chaturguna, Sahsam Shadgunam Chaiv Kamash-cha-Ashta-guna Smritah.” //17//
(Chapter 1, Shlok 17, Chanakya Neet, Pub. Diamond Pocket Books, page 21, of Edi. 2016).”

Hon’ble Justice Markandey Katju, former Judge Supreme Court of India feels, “The decision of the Supreme Court of India in the Joseph Shine vs Union of India case striking down Section 497 of the Indian Penal Code is in my opinion incorrect and to explain why I think so, it is necessary to go in to the theory of judicial review of statutes.”

In his considered opinion, invalidity a statute is a grave step, and must never be done casually. This is because in democracy people are supreme, and the legislature consists of representatives of the people. Invalidating a statute means thwarting the will of the people, which is counter-majoritarian step, as pointed out by the eminent American jurist Alexander Bickel in his book, ‘The Least Dangerous Branch.’ Courts must respect the legislature, which is a coordinate organ of the state, instead of adopting a confrontationist stance.

In Joseph Shine Case, the Court held Section 497 unconstitutional because it violates Article 14 of the Constitution since it did not incriminate the wife who was a partner in the adultery and it did not incriminate married men for having sex with women other than their wives. But it is well settled that a statutory provision is not unconstitutional merely because it is under inclusive, as was ruled by Supreme Court’s Constitutional bench in State of UP vs. Deoman Upadhyaya case.

The Court in Joseph Shine Case further held Section 497 of IPC, to be violative of Article 21 of the Constitution. Thus, Justice D.Y. Chandrachud observed: “Sexuality cannot be disassociated from human personality. For to be human involves the ability to fulfil sexual desires. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices.” Justice Chandrachud further said, “Section 497 disregards sexual autonomy which every woman possesses as a necessary condition of her existence.”

“Now these may be personal, subjective notions of Justice Chandrachud, but it was surely not open to him to impose them on to Article 21 of the Constitution,” observed Justice Katju. Earlier Justice Katju had said, “Recent decisions of Supreme Court such as decriminalisation of gay relationship, striking down adultery law and granting entry to Sabarimala temple to women of all age groups indicate that the court has embarked on a hyperactive, perilous and highly unpredictable path, much like that of the US Supreme Court in 1930’s, which can only end in total discomfiture.”

Criticising the judgement Swati Maliwal, Chairperson of Delhi Commission for women said, “I totally disagree with the Supreme Court judgement on adultery. The judgement is anti-women. In a way, you have given an open general license to the people of this country to be in marriages but at the same time have illegitimate relationship.”

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