Increasing number of elopements with married men – isn’t this a signal to bring in Adultery law?

Published in PGurus

Just a month after the Supreme Court of India scrapped Section 497 of the IPC on Adultery, we happened to hear the Madras High court expressing concern over the increasing cases of minor girls eloping with married men. A division bench of Justice N. Kirubakaran and Justice S. Baskaran observed on 1^st November 2018 that four such cases had come up for hearing on that day alone making them express their worries on the rise in such cases. Since the cases involved minor girls of under-eighteen, the judges turned their attention to POCSO Act (The Protection Of Children from Sexual Offences Act) and directed the State to furnish a report on cases booked under this Act in the last 10 years. They also put the onus on parents and teachers to educate their teenage girls and wanted the Government to introduce counselling programmes for teenagers from getting lured and for parents and teachers for sensitising their wards to the dangers from luring persons.

Advisories such as this serve no purpose if they are really intended to make a change. There is no dearth of advises and advisories in our families but what makes one cross the boundary is that there is no fear of punishment. Take for example the helmet rule. The fatality rate is such that 73.14% of death of bikers was due to non-wearing of helmets, according to the Government release.  Although the Government of Tamilnadu had made it mandatory for all bikers and pillion riders to wear helmets, following the directions of the High court, it is rare to see helmet wearing riders on the streets where there is no traffic police in sight. Not that people are not aware of the helmet rule or the hazards of not wearing it, it is simply that they won’t be caught for not wearing. That is human mentality and the mentality of most people in India. Only fear of punishment keeps one to behave well even in advanced countries.

One can as well dismiss the helmet rule as an intrusion in one’s personal liberty and one’s privilege of likes and dislikes. But it is made compulsory as per Section 129 (a) of Motor Vehicle Act 1988 to afford a degree of protection from injury to the rider. Why should the Government worry about the safety of the rider who himself is not much worried about it? It is because the Government takes care of the safety of the person. When the person for whose sake this rule is made, is caught not wearing it, the State is empowered to penalise the person. With so much care running into the safety of the individual it is just inadmissible that similar care is not shown in the case of the individual embroiled in adulterous activities. There is no physical threat to the life of the one involved, but one cannot turn a blind eye to the indescribable mental torture undergone by those closely related to the person.

For example in the case under purview of the judges who expressed their anguish with the increasing number of eloping cases with married men, a 17 year old girl had eloped with a 45 year old married man. On the complaint by the mother of the girl, the police went on a search and nabbed them in three days. The man was slapped with kidnapping charges while the actual intention was not that. He again eloped with that girl when released on bail and this made the mother move the court with a habeas corpus. It was while dealing at this stage, the judges had asked for a report on POCSO Act. POCSO is once again a deviation from the original intent of the offense. Once the girl completes her 18^th year, no judge of India can stop her from eloping with that older married man. In the melee, the man’s wife and her children from him and the girl’s parents and her siblings are going to be left with terrible trauma for no fault of theirs, but for the fault of faulty judicial laws!

If the judges think that the girl has been unduly lured by the man, the same continues to hold good from the 1^st day of her 19^th year – that is., once she crosses her minor status. So the bottom-line of the issue is not her age, but the inadmissibility of the relationship she has with that man. Without admitting it and by passing on the responsibility to the parents and the teachers, the judiciary is perceived to have lost focus by slapping kidnapping charges and POCSO. 

Suppose there is an adultery law penalising them, both of them could have been deterred from their adventures and their families could have been spared of death like agony. Unfortunately there is no law in this country to check the elopement of a major girl with a married man. The only law on Adultery was the now scrapped Section 497 of IPC which was anyway a faulty law as it was based on a faulty notion of adultery committed by a married man and a married woman. Nothing can be more ludicrous than this, as even if one is already married while the other is not, it still amounts to adultery. In an advanced country like the USA, the Arizona adultery statute penalises both the persons if one of them is unmarried. The trauma such a relationship causes to the family members of those in adultery is huge enough to justify penalisation of both of them.

Unfortunately none of the six Sections of Chapter XX of the IPC on offenses relating to marriage speak about the extramarital relationship with an unmarried woman. The only one on adultery had now been scrapped but not replaced by a fortified Section to deter extramarital relationship with unmarried major girl (or anyone other than his spouse). The State and the judiciary cannot wash off their hands in the pretext of personal liberty as done by the 5-member bench headed by CJ Dipak Misra when it dismissed Section 497 of IPC as violative of Article 14 and Article 21 of the Constitution, because what is at stake is not the personal liberty and freedom of an individual or even consensual relationship, but the trauma caused to the legally wedded spouse of the one in extramarital relationship. Justice must be done to her by punishing the errant spouse even though their marriage is doomed for a divorce. 

Article 21 was behind another judgement of a similar type in the year 2010 when the Supreme Court did not find any offense in live-in relationship. While quashing 22 criminal cases filed against actress Khushboo for her alleged endorsement of pre-marital sex, the Bench asked for evidnece to show that girls eloped from their homes after hearing the actress endorse pre-marital sex.  Can the same yardstick be applied to the present case under discussion? The rise in the number of minor girls eloping with married men as observed by the High Court Bench a recent phenomenon after decriminalisation of adultery? The specific reference to 4 such cases on 1^st November seems to support a sudden spurt in the number of cases after decriminalisation of adultery by the Supreme Court. There is a case of suicide too, by a woman on hearing her husband justify his extramarital affair on the basis of the verdict by the Supreme Court.

Only the cases involving minor girls had come to the court. How do we know how many major girls had eloped with married men for, there is no way they come under the purview of the court? A judicial system that does not invoke Article 21 in giving freedom to a person to make a choice in wearing helmet or not, is allowing the destruction of families and family peace and passes sermons to parents and teachers on issues that involve a third party (the married man) who can be deterred only if a proper law is in place.

Before concluding it is not out of place to quote here what the judges in Khushboo-case asked the complainants. They asked whether the complainants had any daughters. When the answer was in the negative, the judges commented how then they were adversely affected by Khushboo’s support for pre-marital sex. Never knew that judicial empathy is so easily definable that I am tempted to ask the judges of the High Court and the 5 member bench of the Supreme Court whether none of them had daughters. If they had, weren’t there any cases of extramarital affairs in their families? This is being asked to point out the stunted logic in their comment and how disconnected the judges are with the real life hazards faced by millions of families in India.