Adultery & Stability of marriage

The Centre’s affidavit demands the dismissal of the petition, asserting that Section 497 “supports, safeguards and protects the institution of marriage. It is submitted that striking down section 497 of IPC and Section 198(2) Cr.P.C. will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage. The provisions of law under challenge in the present writ have been specifically created by the legislature in its wisdom, to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of the Indian society.” 

A three-judge bench of the Supreme Court headed by then Chief Justice YV Chandrachud had,  on  May 27, 1985, upheld the constitutionality of the provision. Three decades later, his son, Justice DY Chandrachud opined during the admission of the case that the wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act. 

The Bench headed by the CJI Dipak Misra observed that the provision seems archaic in view of the societal progress made so far. The bench is therefore set to consider whether earlier judgments, which had upheld the provision, are to be reconsidered, in view of the social progression, perceptual shift, gender equality and gender sensitivity. The government agreed to the thought that "stability of a marriage is not an ideal to be scorned". The Constitution Bench, to be headed by the CJI, may consider whether Section 497 would treat the man as the adulterer and the married woman as a victim. The larger Bench may also examine why the offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. The petition challenges the validity of Section 198 (1) and (2) of the Code of Criminal Procedure, which deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court.　　　

Read the source article

The decriminalization of adultery might result in weakening the sanctity and laxity of a marital bond, but the individual rights of women are paramount. Section 497 attempts to safeguard the institution of marriage at the expense of women's liberty & rights. The responsibility of marriage has to borne by husband and wife equally. Adultery is no crime. While man & woman can do what ever they want in this free world, the adultery by one must automatically must give the other -- right to demand divorce without prejudice to alimony rights & obligations.

SC Judges revolt raises more questions

Deccan Chronicle | Jan 13, 2018

  

  

 

Curiously, the letter written by the four judges was undated and unsigned

The unprecedented mutiny of four senior Supreme Court judges namely Justice Chelameshwar,  Justice Ranjan Gogoi, Justice Madan Lokur and Justice Kurien Joseph accusing CJI Justice Dipak Misra of  bias in SC Administration etc in press conference on Jan 12, 2018, raises more questions than it reveals. While the contentions of these four revolting judges seems to be rationale, their method of dealing i.e. washing the dirty linen in public is unacceptable. The best they could have done is submit their resignations like 1973 resignations by Justice J. M. Shelat, Justice K. S. Hegde and Justice A. N. Grover when they were superseded. The matter of 'saving democracy' should have been best left to politicians and elected representatives. These four judges forgot the maxim 'nemo judex in causa sua', which means that no man can be a Judge in his own cause.

• The CJI is called upon to show wise leadership of the institution over which he presides has to retain its vitality and robustness. Sardar Patel told HJ Kania three days before he became the first CJI that there is very little place for petty-mindedness in how a CJI deals with his brother judges. Justice Dipak Misra proved himself a miserable failure as CJI. 
• CJI Deepak Misra in his capacity as 'Master of Roster' has allocated the case of death of special CBI judge B H Loya to a bench of junior judges and that was the flash point of simmering discontent.
• CJI is 'Master of Roster' and certainly not 'Clerk of Roster' and can use his discretionary powers as he deems fit and is answerable to none. MoP is only a document for guiding the CJI staff while preparing draft roster and not binding on CJI.
• In any case, no judge can assign a case to himself.
• On one hand they argue 'Chief Justice is first among equals, nothing more, nothing less' and on other hand they were upset that senior judges were not allocated important cases. There is no such thing called 'senior judge' or 'junior judge'. All judges are equal. 
• SC Judges might not be subordinates and accountable to CJI, but CJI certainly holds higher position with higher pay, functions, powers and responsibilities. CJI represents entire SC.
• Their contention as saviors of democracy is untenable. Our democracy is constantly in trouble and never before in the past such revolt has happened. What is visible is ego clash, conflict of personal interests etc.
• How can CJI allocate important cases to these four judges who doesn't look eye to eye with him? It is humanly impossible. Whatever these four judges stated about the maladies of SC today, they were there since long and every CJI followed these with varying degrees. 
• Traditions, conventions, customs, practices etc are not binding. They only bind you to the past. Only rules are binding. Subverting the rules to one's own thinking is what is ruling now a days everywhere. These days what matters is competence, tact and trust. 
• Not withstanding the told reasons, real reasons for this mutiny could be different. In any case judicial tradeunionism is unacceptable nonsense.
• Modi's government subverted all the institutions in India. Supreme Court is no exception. Which CJI would like to fight with powerful Modi & BJP and lose his of sleep and future benefits?
• Having raised the banner of revolt, now the onus is on these four revolting judges to bring down curtain amicably as soon as possible. They can not expect any help from any quarter in resolving the SC's internal issue and any delay will give scope for media with all kinds of stories and rumors which will only hurt the integrity of SC and its judges.
• "Judges should not have gone public" was the unanimous opinion of Bar Council of India. Similar opinions were expressed by Attorney General KK Venu Gopal and eminent jurists FS Nariamn, Soli Sorabjee and many others.
• In a press release issued on June 24, 2018, the Bar Council of India condemned the former Supreme Court judge Jasti Chelameswar for his comments to several media organisations after his official retirement two days earlier. The release states, “The amount of damage which has been to the institution since last January, would take a long time to be repaired and rectified.” 

Expecting CJI Deepak Misra coming to the terms of revolting four judges and falling at their feet is height of insanity. While CJI can't do anything to these four judges, he might just ignore this incident and next working day will be like any other routine day and business in SC will be as usual. But these four judges having raised unthinkable banner of revolt lost their moral right to sit on the bench and conduct court proceedings and deliver verdicts. Irrespective of causes and outcomes of this dirty event, SC's image stands disfigured and diminished forever.

In framing a government which is to be administered by men over men, the great 

difficulty lies in this: you must first enable the government to control the governed; 

and in the next place, oblige it to control itself ... Alexander Hamilton

Even though everybody says in public they have immense faith in judiciary and respect it, in private no one has. They were only scared of contempt proceedings and punishment. It is well known that judicial system serves rich & powerful only and ordinary citizen can never aspire to approach any court for grievance redress. Like other segments of society and governance, judicial system is also infected with all the ills like politics, corruption, nepotism, incompetence and so on. Leveraging press & media for furthering one's own cause is politics. Judiciary prohibits press conferences by judges under all circumstances. Notwithstanding whether CJI Dipak Mishra committed any mistakes or mischief, these four rebel judges, in a fit of anger, walking out of SC premises dumping scheduled activity to winds have done the unthinkable thing and committed the gravest offence on the Supreme Court itself by calling the press conference and leveling charges against CJI and may face conspiracy charges of destruction of institution of SC. Their incredulity of views is reflected in releasing an undated and unsigned letter addressed to CJI. Their offence is far more serious than Justice Karnan's for which he was jailed for six months by SC, ignoring constitutional immunity & protection.