PIL AGAINST SECTION 497 OF THE IPC

IPC का धारा 497 के विरुध्द पटना उच्च न्यायालय मेँ जनहित याचिका दायर करने के लिए मैँने जो ड्राफ्ट बनाया है,उसमेँ मैँ संशोधन कर रहा हूँ।अभी इस धारा के तहत किसी के पत्नी के साथ अनैतिक संबंध बनाने वाले पुरुष के विरुध्द 5 साल तक की सजा का प्रावधान है।हालाँकि उस पत्नी को सजा नहीँ मिल सकता।जब पति किसी दूसरी महिला के साथ अनैतिक संबंध बनाता है तो इस केस मेँ सजा का प्रावधान नहीँ है।मैँने ड्राफ्ट मेँ ये लिखा था कि दोनोँ स्थितियोँ मेँ पुरुषोँ को सजा मिलना चाहिए और महिलाओँ का बांड बनना चाहिए।मुझे लगता है कि दोनोँ स्थितियोँ मेँ पुरुषोँ के साथ साथ महिलाओँ को भी बराबर सजा मिलना चाहिए क्योँकि अनैतिक संबंध मेँ दोनोँ भागीदार होते हैँ।इसलिए यदि पति दूसरे महिला के साथ नाजायज संबंध बनाए या पत्नी दूसरे पुरुष के साथ नाजायज संबंध बनाए,सभी को बराबर सजा मिलना चाहिए।अब कैसा रहेगा? संशोधित जनहित याचिका नीचे प्रस्तुत है- IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION (Public Interest Litigation) CWJC NO. OF 2014 In The Matter Of Public Interest Litigation: Rahul Kumar ………… Petitioner Versus Union of India Through The Secretary, Ministry Of Law and Justice .… … Respondent INDEX Subject-Public Interest Litigation S.No Particulars Page No. 1. PIL Under Article 226 with Affidavit 1-12 2. Vakalatnama on the behalf of petitioner IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION (Public Interest Litigation) CWJC NO. OF 2014 In The Matter Of Public Interest Litigation Under Article 226 Of the Indian Constitution And in the matter of Rahul Kumar S/O- Jagannath Ray Resident Of Vill & Post-Sughrain Via-Bithan, Distt-Samastipur,State-Bihar,PIN-848207 ……………………...………… Petitioner Versus Union of India Through The Secretary, Ministry Of Law and Justice At-Shastri Bhawan,A-Wing, Dr.Rajendra Prasad Road,New Delhi,110001 ……………………………… … Respondent IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION (Public Interest Litigation) CWJC NO. OF 2014 In The Matter Of Public Interest Litigation: Rahul Kumar ………… Petitioner Versus Union of India Through The Secretary,Ministry Of Law and Justice .… … Respondent A Public Interest Litigation Under Article 226 of the Indian Constitution for the following amendments in Section 497 of the Indian Penal Code,1860:- 1.The wife should have the right to prosecute her husband in case of illicit relationship committed by him with another woman not being his wife and the husband be punished equally in the same manner as the another man who commits illicit relationship with one’s wife is punished. 2.In case of adultery committed by one’s wife, that wife should also undergo prosecution by removing the term that “In such case the wife shall not be punishable as an abettor ” and be punished equally in the same manner as the another man who commits illicit relationship with her is punished. 3.In case of illicit relationship committed by another woman with one’s husband, that another woman should also undergo prosecution and be punished equally in the same manner as the one’s husband who commits illicit relationship with her is punished. 4.Any woman whether married or unmarried above the age of 18,should be kept under the definition of adultery in order to prosecute and punish her. To THE HON’BLE CHIEF JUSTICE OF HIGH COURT OF JUDICATURE AT PATNA AND HER COMPANION JUDGES OF THE HON’BLE HIGH COURT OF JUDICATURE AT PATNA The Humble Petition on behalf of the Petitioner above-named MOST RESPECTFULLY SHOWETH: - 1.That the writ petitioner has no personal interest in the litigation and that the Petition is not guided by self-gain or for gain of any other person/ institution/ body and there is no motive other than of public interest in filing the writ petition. ABOUT THE PETITIONER:- 2.That the petitioner is a student of Economics Honours keeping Keen interest in judicial reforms. The petitioner is not filing writ petition Under any registered society rather being self motivated. 3.That the writ petitioner is seeking following amendments in the section 497 of the IPC:- (i) The wife should have the right to prosecute her husband in case of illicit relationship committed by him with another woman not being his wife and the husband be punished equally in the same manner as the another man who commits illicit relationship with one’s wife is punished. (ii) In case of adultery committed by one’s wife, that wife should also undergo prosecution by removing the term that “In such case the wife shall not be punishable as an abettor ” and be punished equally in the same manner as the another man who commits illicit relationship with her is punished. (iii) In case of illicit relationship committed by another woman with one’s husband, that another woman should also undergo prosecution and be punished equally in the same manner as the one’s husband who commits illicit relationship with her is punished. (iv) Any woman whether married or unmarried above the age of 18,should be kept under the definition of adultery in order to prosecute and punish her. 4.That the section 497 of the IPC is biased against women and against the dignity,fundamental rights and human rights conferred to women being a citizen of India. As the section 497 of the IPC provides:- “497. Adultery.-- 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.” 5.That after the plain reading of the text of section 497,it is evident that only another man who commits illicit relationship with one’s wife can be punished. The man who commits illicit relationship with another woman not being his wife can’t be punished. This provision is gender biased because if the illicit relationship is committed without the consent of one’s husband, then the unlawful partner of such wife can be punished but if illicit relationship is committed without the consent of wife by her husband, then he can’t be punished. In one case, male can be punished if he commits illicit relationship with one ’s wife but in another case when he commits illicit relationship with another woman against the will of his wife, then he can’t be punished. It is totally gender biased. 6. That In case of adultery committed by one’s wife, that wife should also undergo prosecution by removing the term that “In such case the wife shall not be punishable as an abettor ” and be punished equally in the same manner as the another man who commits illicit relationship with her is punished.The petitioner doesn’t find any justification behind the term “In such case the wife shall not be punishable as an abettor. ”How we are thinking one’s wife as an abettor? Illicit relationship is not committed under the abetment of one’s wife.We are thinking as if women is abettor. This thinking is against the dignity of women. So, the word “abettor” be removed. If illicit relationship is committed, then it is the consensual crime and both male and female participate, so the wife who commits illicit relationship with another man deserves to be punished in the same manner as her unlawful partner is punished. If we go through the definition of abettor under section 108 of the IPC,we don’t find that the woman works as abettor. Section 108 Provides:- “108. Abettor.-- A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.” If illicit relationship is committed, both male and female are involved and it is consensual crime rather being abettor by one woman. Similarly,In case of illicit relationship committed by another woman with one’s husband, that another woman should also undergo prosecution and be punished equally in the same manner as the one’s husband who commits illicit relationship with her is punished because in this case also, both male and female are involved and commit consensual crime and deserves to be punished equally. 7.That Any woman whether married or unmarried above the age of 18,should be kept under the definition of adultery in order to prosecute and punish her. 8.That sections 494 and 495 of the IPC are not gender biased as these sections provide equal punishment for both wife and husband for the offence described under these sections but the section 497 doesn’t provide equal punishment for both husband and wife. Section 494 Provides:- “494. Marrying again during lifetime of husband or wife.-- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception.- This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.” Section 495 Provides:- “495. Same offence with concealment of former marriage from person with whom subsequent marriage is contracted.-- Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 9. That Marrying again during lifetime of husband or wife and Same offence with concealment of former marriage from person with whom subsequent marriage is contracted is punishable for both husband and wife,then why the wife will not be punished if she commits illicit relationship with another man and why husband will not be punished if he commits illicit relationship with another woman. 10. Case Study of Some Highlighted News Related To Adultery (i) Shehla Masood – Zahida Pervez- Dhruv Narayan Singh sex scandal (2011) Dhruv Narayan Singh, BJP MLA of Madhya Pradesh, was accused of having illicit relationship with many women and it resulted in the muder of one her lovers, Shehla Masood, an RTI activist, who was got eliminated through contract killers hired by Dhruv’s another lover Zahida Pervez. (ii) Gopal Kanda & Geetika Sharma scandal (2012) The story of Gopal Kanda, a former Haryana minister, was a typical rags-to-riches story before destiny pulled the rug from under his feet and he was incarcerated for abetting the suicide of Geetika Sharma, a former air-hostess of now-defunct MDLR airlines owned by Kanda. Geetika Sharma committed suicide by hanging herself on August 5, 2012 and left behind a suicide note accusing Gopal Kanda of deliberately harassing her and leaving her with no option than to end her life. Police investigation revealed that Gopal Kanda targeted Geetika from the day one of her joining the MDLR airlines. Gopal Kanda made it mandatory for Geetika to meet him every evening. It is said that Geetika had illicit relationship with Kanda and she underwent abortion a few times. MDLR was shut down in 2009 and in October 2010 it became a part of Emirates Airlines. Geetika moved over to Dubai to join Emirates Airlines but Gopal Kanda sent a letter to Emirates saying that she had been a poor employee and had defaulted on a loan. Kanda wanted her to quit her job and return to India. Gopal Kanda, on the hand, denied all the allegations and said that he always tried to help Geetika Sharma and even financed her MBA course. Not only this, he made her the chairperson of the trust that ran an international school at Sirsa. Police investigations revealed that on August 3, a day before Geetika committed suicide, Kanda's advocate pressurized her over phone to sign on a petition filed in Goa to quash the FIR lodged against another MDLR employee, Ankita Singh. It was same Ankita Singh who was mentioned by Geetika in her suicide note. Geetika had alleged that Kanda had illicit relationship with Ankita and that Kanda had fathered a child with Ankita. It is said that Geetika was jealous of Ankita and she had even fought with Ankita warning her to keep a distance from Kanda. Kanda was a typical philanderer and a frustrated Geetika committed suicide. Gopal Kanda was arrested on August 18 for abetting the suicide of Geetika and is still languishing in the jail. (iii) Mahipal Maderna – Bhanwari Devi Scandal (2011): Bhanwari Devi, a 36 year old auxiliary nurse and midwife, from Rajasthan came into the limelight after her husband alleged that Mahipal Maderna, the Congress minister in state government, got his wife abducted. The investigation of the case revealed that Bhanwari Devi was blackmailing Maderna and Congress legislator Malkhan Singh and demanded crores of rupees based on a CD in which Maderna and others were seen in a compromising position with Bhanwari Devi. Maderna and Malkhan finally decided to get her eliminated with the help of supari killers. Maderna is under custody and court has framed charges against him. (iv) Amarmani Tripathi –Madhumita Shukla scandal (2003): Madhumita Shukla, a 24-year old poetess , was gunned down by two assailants in her apartment in Lucknow on April 9, 2003. Madhumita was seven months pregnant at the time of murder. Police investigation revealed that Madhumita was a lover of Amarmani Tripathi, a minister in UP government. The investigation further revealed that Madhumita was killed at the instructions of Madhumani Tripathi , the wife of Amarmani Tripathi, who got furious after she came to know of Madhumita’s affair with her husband. Both Amarmani Tripathi and his wife Madhumani were arrested and sentenced to life imprisonment. 11. Conclusion On the Case Study of Some Highlighted News Related To Adultery That the burning question is, whether the murder of Shehla Masood, Bhanwari Devi and Madhumita Shukla could have been prevented and whether the suicide of Geetika Sharma Could have been prevented if the wife of those whose husbands were involved in illicit relationship with above women would have the right to prosecute her husband and unlawful partner of her husband. Shehla Masood was murdered by Zahida Pervez because she was also one lover of Dhruv Narayan Singh.If the wife of Dhruv Narayan Singh would have the right to prosecute her husband , Shehla Masood,Zahida Pervez etc,then the both women would leave the relationship with Dhruv Narayan Singh and also Dhruv Narayan Singh, Shehla Masood,Zahida Pervez etc would have to undergo imprisonment and thus nothing like murder would occur due to such illicit relationship. Bhanwari Devi was murdered by Mahipal Maderna because he was blackmailed by her.If the wife of Mahipal Maderna would have the right to prosecute her husband and Bhanwari Devi,then Bhanwari Devi would have leave the relationship with Mahipal Maderna and also Mahipal Maderna and Bhanwari Devi would have to undergo imprisonment and further there would be no blackmailing committed by Bhanwari Devi and thus nothing like murder would occur due to such illicit relationship. Mudhumita Shukla was murdered by Amarmani Tripathi and his wife Madhumani Tripathi because Madhumani Tripathi got frustrated and forced her husband to remove Madhumita from her way.If the wife of Amarmani Tripathi would have the right to prosecute her husband and Madhumita Shukla,then Madhumita Shukla would have to leave the relationship with Amarmani Tripathi and also Amarmani Tripathi and Madhumita Shukla would have to undergo imprisonment and further there would be frustration in the mind of Madhumani Tripathi and thus nothing like murder would occur due to such illicit relationship. Geetika Sharma committed suicide because she was tortured and blackmailed by Gopal Kanda and she had jealousy with Ankita Singh.If the wife of Gopal Kanda would have the right to prosecute her husband , Geetika Sharma,Ankita Singh etc,then Geetika Sharma,Ankita Singh etc would have to leave the illicit relationship with Gopal Kanda and also Gopal Kanda, Geetika Sharma,Ankita Singh etc would have to undergo imprisonment and further there would be no blackmailing and torturing committed against Geetika Sharma and jealousy within her and thus nothing like suicide would occur due to such illicit relationship. 12.AVERMENTS: (i) That the petitioner is the citizen of India. (ii) That the Petitioner has got no other alternate efficacious remedy except for the present Public Interest Petition (PIL). (iii) That the petitioner has not filed any other PIL or any other such petition seeking the identical relief before any other High Court or before the Hon’ble Supreme Court of India. 13.GROUNDS That the Public Interest Litigation is being filed inter alia on following grounds:- (i) Because the murder and suicide is the violation of fundamental rights conferred under Article 21 of the Indian Constitution and murder and suicide is more serious offence than adultery which occurs due to the gender biased provision of the section 497 of the IPC. (ii) Because depriving wife from prosecuting husband and unlawful partner of her husband,is violation of equality before law under Article 14 of the Indian Constitution and violation of right to equality under Article 15(1) of the Indian Constitution. (iii) Because adultery committed by one’s husband leads to mental trauma suffered by his wife and child which is violation of Article 21 of the Indian Constitution. 14.PRAYER: In view of the above facts and circumstances, It is most respectfully prayed that the Hon’ble High Court may issue appropriate writ for the following amendments in the section 497 of the IPC:- (i) The wife should have the right to prosecute her husband in case of illicit relationship committed by him with another woman not being his wife and the husband be punished equally in the same manner as the another man who commits illicit relationship with one’s wife is punished. (ii) In case of adultery committed by one’s wife, that wife should also undergo prosecution by removing the term that “In such case the wife shall not be punishable as an abettor ” and be punished equally in the same manner as the another man who commits illicit relationship with her is punished. (iii) In case of illicit relationship committed by another woman with one’s husband, that another woman should also undergo prosecution and be punished equally in the same manner as the one’s husband who commits illicit relationship with her is punished. (iv) Any woman whether married or unmarried above the age of 18,should be kept under the definition of adultery in order to prosecute and punish her. (v) Such other reliefs be provided as this Hon’ble Court may deem fit and proper in light of the facts and circumstances of the case. FOR THIS ACT OF KINDNESS THE PETITIONER HEREIN AS IN DUTY BOUND SHALL EVER PRAY IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION (Public Interest Litigation) CWJC NO. OF 2014 In The Matter Of Public Interest Litigation: Rahul Kumar ………… Petitioner Versus Union of India Through The Secretary, Ministry Of Law and Justice ………..Respondent AFFIDAVIT IN SUPPORT OF THE PETITIONER I,Rahul Kumar S/O-Jagannath Ray Resident Of Vill & Post-Sughrain Via-Bithan,Distt-Samastipur,State-Bihar,PIN-848207, do hereby solemnly affirm and declare as under: - 1.That I am the petitioner in the present Public Interest Litigation 2.That I have gone through the Supreme Court (Public Interest Litigation) Guidelines, 1988 and subsequent modifications and Do hereby affirm that the present Public Interest Litigation is in conformity thereof. 3.That I have done whatsoever inquiry/investigation which was in My power to do, to collect all data/material which was available And which was relevant for this Court to entertain the present petition. I further confirm that I have not concealed in the present petition any data/material/information which may have enabled this Court to form an opinion whether to entertain this petition or not and/or whether to grant and relief or not. 4.That the contents of this petition are true and correct to the best of my knowledge and belief. D E P O N E NT