Section 147 of the IPC – Rioting

Introduction to Section 147 IPC

Section 147 of the IPC (Indian Penal Code) provides Punishment for rioting. It states that whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

What constitutes to rioting has been defined in section 146 of the IPC as whenever force or violence is used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offense of rioting. Which simply means that when a group of people come together unlawfully and perform anything (in order to achieve a common goal) using force and violence, every member of that group is guilty for committing the offence of rioting and they could be punished with a term extending to two years, or with fine, or with both. Though the word ‘force’ is defined under section 349 of IPC, violence has not been defined specifically in the Indian Penal Code. But violence is a much wider concept than force because it includes force not only against other people but also against inanimate objects like property.

The offense under section 147 of IPC is cognizable (the police has the authority to arrest the person without a warrant), bailable (bail is a matter of right) and non-compoundable (the Victim and the accused can not reach a compromise to settle the case, a full trial has to be conducted in the court). Accused persons can exclusively be punished under this section even if they could not be convicted for the offense they committed while pursuing the common purpose.

This is the case with simple rioting, but when deadly weapons are used in riots, the punishment varies. Punishment under section 147 relates to only the cases of simple rioting, punishment for rioting with deadly weapons has been separately prescribed under section 148 of the IPC. Section 148 of IPC states that whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Merely the use of force by a group of people does not render them liable for rioting. If the common purpose is not illegal, then the use of force by the assembly will not amount to rioting. And if force was being used by the assembly for a lawful purpose but a sudden quarrel broke out without any pre-planned manner and eventually led to violence, it would not amount to rioting. Generally, it happens that people or spectators gather around the place where the rioting is happening. These spectators should not be considered to be the members of the unlawful assembly. However, if someone is found to be marching with the assembly for quite a distance, they would have to prove their innocence under section 106 of the Evidence Act.

England’s King Bench of the High Court of Justice  defined in the decision of Field v Receiver of Metropolitan Police, [1907]2 KB 859, the 5 elements of rioting to be:

1. The group should have a minimum of three people
2. There should be a common purpose
3. The Inception of that common purpose
4. The intent to help one another by force against any person who opposes them in the execution of their common purpose
5. At least one person of reasonable firmness should be alarmed by the display of this force or violence

Case laws

In Vijay Singh Mankotia v. State of Himachal Pradesh, more than 200 people of a political party were gathered on a public highway for a ‘dharna’ against the state government.  This caused unlawful restraints to others who were supposed to travel on that highway. The Himachal Pradesh High Court observed that it amounted to public nuisance and rioting. A prima facie case was made out against the petitioners for the commission of offenses that are punishable under section 147 of the IPC.

References-

1. Indian Penal Code
2. Code of Criminal Procedure
3. The Evidence Act
4. http://www.duhaime.org/LegalDictionary/R/Riot.aspx

Section 304 a – Death by Negligence : Law and Legality

Indian Penal Code: Section 304A

India’s criminal system follows the Indian Penal Code in matters of dealing with crime. The framework of IPC governs crime with justice and punishment. Owing to the influence of English Law, the original Indian Penal Code had provisions for culpable homicide under Section 299. Section 299 deals with any act or bodily injury caused by any person with an intention of causing death. Section 304 of IPC deals with the provision of culpable homicide not amounting to murder. This section involves crimes perpetrated with the knowledge of causing death but without any intention of doing the same.

The original Penal Code did not have any provision for dealing with death caused by negligence.  In 1870,  Act 27 of the Indian Penal Code added Section 304 a and b as an amendment. The following article is going to discuss Section 304 (a) under IPC in detail.

Section 304(a) states as follows:

“Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or both.”

Any act under Section 304(a) is a bailable offence under the IPC. In such a case, the Court allows the defendant to make bail by paying a surety amount along with a bail bond at the police station. This offence is also compoundable which means that the plaintiff and the defendant can reach an agreement between themselves through their counsel and avoid trial. This often occurs in cases involving powerful Companies who would settle instead of going through a public trial.

Negligent Homicide: The Parameters of Law

The law sets parameters but also keeps spaces open for interpretation because each case has a different context.  Section 304(a) uses the words “rash or negligent act” as the deciding elements to charge any person under this section Therefore it is important to understand these terms and its various connotations.

Firstly, the Act being mentioned above should be causa causans,i.e, the primary cause of death and not merely causa sine qua non,i.e, an indirect act. Therefore, the relationship between the act and the death or injury resulted by it should be direct for the plaintiff to win the case.

Secondly,  there is a difference in the responsibility of the defendant vis-i vis the plaintiff between a negligent act and a rash act. A negligent act is a breach of duty that causes harm/damage to another person unintentionally. On the contrary, a rash act is the culmination of overhasty decisions and recklessness on the part of the defendant.

Thirdly,  a rash act is generally a criminal act. A negligent act could be civil or criminal depending on the gravity and the nature of the crime along with the degree of intention or lack thereof in a particular case.

Types of Negligence

There could be many ways of partaking in criminal negligence. There are two major criteria that come to the forefront while discussing Criminal Negligence:

Medical Negligence

Medical negligence is a breach of duty on the part of the defendant who has a legal as well as a moral duty to look after his/her patient. The act of “Negligence” is open to interpretation based on the actions of the defendant in each case. A medical practitioner is liable for negligence if he/she deviates from “the standard treatment” recommended for taking care of his/her patient causing death or injury of the patient. A medical practitioner can be a doctor as well as a nurse. Medical negligence cases can be civil as well if the hospital as a whole is held accountable for malpractice. For instance, using faulty equipment or expired medicines in the hospital.

Motor Vehicle Accidents

The incident of a motor vehicle crash leading to the death of people will not be enough to charge someone under Section 304(a) for negligent driving. The charge of criminally negligent driving requires the driver to be solely or entirely responsible for the accident because of their negligence or rashness. This, however, requires interpretation on part of the court; taking into account the level of rashness and deliberation in an action that led to an accident. The court has to take into account that if one decides to drive under influence, they are aware of the consequences of their decision. The court also has to take into account the degree of damage done by undertaking that reckless decision.

Corporate Negligence

In matters of corporate negligence, a Company is liable under Section 304(a) if it takes any action that injures their consumers, creates an unsafe environment for their employees or cheats their shareholders.  Some of the crimes that come under corporate negligence cases are:

• air and water pollution caused by industries;
• adulteration of food by food companies;
• involving themselves in different lobbies for their own profit by exchanging money with political parties;
• releasing confidential information without permission;
• recording personal conversations and breaching privacy;
• harming or cheating the shareholders’ out of their profit.

The burden of Proof and Defense against Section 304(a)

In claims of negligence, it is extremely important to prove that there was indeed a breach of duty. In many cases of medical negligence, the professional might make a decision based on the complicated nature of the case presented to him/her. The burden of proof lies with the doctor to prove that they behaved in a reasonable way only in the interest of the patient.

The other arguments on which the defendant relies are as follows:

• contributory negligence: proving there was negligence on the part of the plaintiff;
• inevitable accident: proving that the death or injury caused was inevitable depending on the circumstances of the action;
• dangerous recreational activity: proving that the plaintiff’s injury is a result of partaking in a dangerous recreational activity like drugs. In such a case, the defendant will not be liable for any damages.
• illegal activity– proving that both the plaintiff and the defendant were engaged in an illegal business when the plaintiff was injured. This renders the case void.

In civil negligence cases, the burden of proof lies with the plaintiff to prove that there was a breach of duty by the Company/Corporate. The breach of duty has to directly damage the plaintiff. In the case of powerful Companies, the plaintiffs should be ready to show concrete proof, including reliable testimonies and documents to reach a favourable verdict.

Section 304a IPC: Judgements

Some of the landmark judgements in cases related to Section 304(a) IPC:

 Jacob Mathew v State of Punjab [ANR 2005]

The plaintiffs, in this case, were the family of Jivan Lal who was admitted and died in CMC Hospital, Ludhiana. The two doctors who attended the deceased were Jacob Matthew and Allen Joseph. The doctors had to face the charge of criminal negligence. The plaintiffs claimed negligence on the doctor’s part while procuring oxygen cylinder for their father. The defence argued that the patient was at the last stage of cancer. He was not supposed to be admitted to any hospital in lieu of his degrading health.

The Supreme Court argued in favour of the doctors stating that the plaintiff must prove that the medical professionals acted “in disregard of the life and safety of the patient.” A medical professional cannot be held liable if they are following the accepted procedure of medical practice. They cannot be reprimanded for not using an alternative method that might or might not have brought the desired result. They can only be charged in either of the two conditions

• if they do not possess the skill to match their profession.
• if they did not show reasonable competence while discharging their duty; the standard set here would be of an ordinary competent person.

Somabhai Mangalbhai Dabhi vs State of Gujarat [1988]

The Session Judge convicted the accused of the death of a 10-year-old girl. He was charged under section 304 (a) of IPC for the negligent driving of a motor bus. The defence claimed that the girl entered the road out of nowhere. There was insufficient evidence of the girl coming out of nowhere and also the fact that the driver was driving on the wrong side. Therefore, the sessions court sentenced the accused with two years of Rigorous Imprisonment (RI) along with 500 rupees fine. The Supreme court did allow probation after regarding the context of the case.

Conclusion

The provision of Section 304(a) under the IPC is important to offer a measure of justice to the claimants. It might give them some closure or at the very least compensate them if there has been a breach of duty that led to irreversible damage or loss of life/property.

304A IPC BAILABLE304A IPC JUDGMENTS304A IPC PUNISHMENT

Hit and Run cases and legal consequences

Introduction To Hit and Run Cases

Hit and Run cases happen when the drivers while driving incur damage to any person’s life, health or property while rash driving and thereafter failing to register their vehicle and driving license with the concerned legal authorities. In layman’s terms, Hit and Run is hitting a person or property while driving and then fleeing. It becomes very hard to identify and punish the culprits because of lack of evidence and witnesses. However, there have been many instances when the law has convicted them.

Statutory Punishment of Hit and Run

Hit and run cases are not specifically punishable under Indian Penal Code (IPC) as such. Though, Sections 279, 304A, and 338 of the IPC are applicable in the Hit and Run Cases. Section 279 defines and punishes Rash Driving. There is a punishment of jail term extending up to 6 months and a thousand rupees fine under this section. Also, Section 304A punishes death by negligence. This section is directly applicable to Hit and Run cases which result in the victim’s death. The punishment under the Section is for up to 2 years. In cases where the victim hasn’t died but is grievously injured, the punishment is given in Section 338.[i]

The Motor Vehicles Act, 1988 is applicable to the cases of Hit and Run too. Section 161 of the Act defines “hit and run” as “an accident arising out of the use of a motor vehicle or motor vehicles the identity whereof cannot be ascertained in spite of reasonable efforts for the purpose”. As can be observed by the official codified definition, a hit and run does not always pertain to murder or grievous hurt, but to accidents at large. Section 161 also provides for compensation to the victims of the hit and run; twenty-five thousand rupees in case of death and twelve thousand and five hundred rupees in case of grievous hurt.

Section 134(a) of the Act requires the driver to secure medical attention to the injured persons immediately. And section 134(b) requires them to give the information about and relevant to the same to a Police officer as soon as possible. Failing these two duties, the driver will be punishable.[ii]

Statistics of Hit and Run cases

More than 20000 people lost their lives in Hit and Run cases in India alone.[iii] Hit-and-run cases accounted for 11.4% of all accidents in 2015, an increase from 10.9% in 2014, according to road transport ministry data. In a survey, they found that about 74% of respondents expressed unwillingness to assist victims of road accidents. According to a study Impediments to Bystander Care in India conducted by SaveLIFE Foundation, advocacy working for road safety, and TNS India, a global marketing research company, on July 2013. The SaveLife-TNS study also points to another study by the Indian Journal of Surgery published in 2006. There, it was found that 80% of road accident victims do not receive any medical care within the first or golden hour after the accident.

Problems in Hit and Run cases

The biggest issue in the cases of Hit and Run is the absence of any direct evidence. Usually, there is no hard evidence to put the culprit at the crime scene. This makes it very difficult for the Police to pursue the investigation. Sometimes due to the speeding vehicles and a lot of rush, even witnesses aren’t able to help with the investigation. Also, the witnesses often don’t want to be entangled in the legal framework. The Police have to rely on indirect pieces of evidence in such cases. The investigation requires very precise and careful monitoring of the crime scene.

The witnesses of the accident are also unwilling and reluctant to help the victims. This causes a lot of loss of life. In 2013, the Apex Court directed the Government to make laws for the protection of the Good Samaritans. However, even after these laws are made, they are available mostly on paper. In some states like Karnataka however, these laws hold much importance.[iv]

Conclusion

Hit and Run cases have come to the knowledge of most of the Indians after the infamous Salman Khan case in 2002. He was accused of driving his car onto the Footpath into a group of homeless people. One of them had died. There have been many high profile cases of Hit and Run over the years. And, many which couldn’t get as much attention.

The usual reason found behind these instances is Rash driving, On-road racing and Drink and drive. The victims, either injured or dead are left to suffer while the culprits run free. Even the compensation given to the victim is too low as termed by the Apex Court. A bill is pending in the Parliament to increase the same from 25000 rupees to 2 lakhs.

[i] Indian Penal Code 1860.

[ii] Motor Vehicles Act 1988.

[iii] Rahul Mohan  Sharma, ‘There were 7 Hit and Run cases every hour in 2015’ (Scroll.in, 5 August 2016) <https://scroll.in/article/813185/there-were-7-hit-and-run-cases-every-hour-in-india-in-2015> acessed 12 January 2019.

[iv] Karnataka Good Samaritan and Medical Professional (Protection and Regulation during Emergency Situations) Act.

Criminal Investigation Department – Powers

Introduction To Criminal Investigation Department

Contrary to popular belief, CID or the Criminal Investigation Department is a real and existing department within the Indian Police forces. However, it is not as dramatic as its media counterpart. The Criminal Investigation Department of a state serves as the intelligence or investigation wing for the respective state police forces. Moreover, It aids the police in dealing with certain types of cases. In short, it is an advanced version of the State Police Department. As said above, intelligence and investigation are two core function of any CID in a state. 

Functions of CID

As codified in Section – 410 of the Jharkhand/Bihar Police Manual; CID has several functions to execute. Such functions are distinct as of the Police Department’s function. Following are the functions of CID:-

Core Activities

• The collection of distribution of information relating to professional cases and classes of crime detailed below:-

1. dacoity;
2. highway, railway or mail robbery;
3. counterfeiting coin or stamps, forging notes, uttering of being in possession of counterfeit coins or stamps or forged notes;
4. drugging of poisoning by professional poisoners;
5. Swindling;
6. action against criminal gangs such as cases, under section 400 and 401, IPC and proceedings under sections 109 and 110, Cr.P.C.
7. professional criminals whose operations extend beyond the limits of a single district;
8. Such crimes about whom Inspector-General gives special orders.

• To control, advise or assists as circumstances require, in inquiries or investigations into crimes mentioned above. Moreover, in serious crimes where local authority seeks the help of CID with the approval of inspector general or Government of the state. Also, CID helps to inquire about the movements of foreign criminals and about such matters in which local police asks for help.
• In cases where crime includes forgery of telegraphic of railway receipts, postal frauds, the movements of foreign criminals and the like, the assistance of the department may be invoked or directed.

Investigating Squads and Offices

• CID sets up Specialized squads for investigation of cases. Officers in every squad investigate the cases connected with squads. The squads shall be of following types:-

1. Cheating and defalcation squad.
2. Forged note and counterfeiting squad.
3. Murder squad.
4. Railway Crime squad (see Rule 680)
5. Eve teasing prevention squad

• To do the work efficiently, the department requires certain types of offices. Whereas, such offices help in deducing the collected data to reach the conclusion. The following offices are attached to the department:–

1. Finger Print Bureau (Chapter 16),
2. Laboratory ( Appendix 25),
3. Photo Bureau ( Appendix 22),
4. Dog Squad ( Appendix 83) whose branches can be set up in other districts also,
5. Missing Persons Bureau ( Appendix 81), and
6. Juvenile Aid Bureau ( Appendix 82)

Powers of CID

In the dynamic environment, people are developing with every second passing. And they always come up with a new way of crime. For example, Advancement in technology resulted in Cyber Crime. Nevertheless, technology helps in achieving goals which were impossible earlier. Hence, it directly results in an increase in the complexity of crime and working conditions. Apart from all the functions of the Criminal Investigation Department, certain other powers are provided. Such powers of the Criminal Investigation Department are as follows:-

1. CID has the power to investigate, detect, and prosecute certain types of cases. Such cases are entrusted by the Government and Deputy General of Police.
2. It can conduct inquiries as per laid down procedure in prescribed situations i.e Civil or Criminal procedure code of India.
3. CID maintains data, updates crime and criminal information system. They also plan and organize criminal intelligence system. Moreover, they have also the power of maintaining records.
4. CID coordinates the investigation of related matters in the State with other States and National Institutions/Organizations. It also deals with crime investigation and maintenance of crime & criminal records.
5. Efficient, professional and independent functioning of SCRB ( State Crime Record Bureau), FPB (Finger Print Bureau) and their modernization.
6. In certain cases, CID advise, assist and report to Deputy General of Police and Government regarding the matters concerning investigation and prosecution.
7. CID gives information to Parliament and Assembly regarding crime on behalf of State Police. However, except that information which is purely administrative in nature.
8. In cases relating to Human trafficking, CID launches rescue operations and attend to post-rescue victim care and protection in coordination with the NGOs.
9. Maintains Database in r/o cases under trial, court disposals and court orders.
10. Also, they Examine and report on judgments given by subordinate courts for filing appeals.

Conclusion

With all the discussion above, we can say that CID is an important part of the state. However, its work is mostly behind the scenes. The functions of CID are as important as of the police department. However, in certain areas, where the police department has no authority, CID has the authority to control. Also, the power to maintain records of serious crime-criminal is a distinct feature of CID.

Section 34 of the Indian Penal Code, 1860

Introduction

Section 34 of the Indian Penal Code talks about the joint liability of persons involved in a criminal act. It says that if more than one person is involved in a criminal act done to satisfy a common intention, then each of such persons will be liable in the same way as if it was done by him alone.

The ingredients of Section 34 are as follows

• There should be a criminal act;
• Several persons should do the act;
• The criminal act must be done to satisfy a common intention of all;
• There must be actual participation of all the persons in some way or the other in furthering the common intention.

Common Intention

When the Indian Penal Code was enacted in 1860, Section 34 at that time did not include the provision of common intention, and later an amendment was made in the year 1870 to include it. Intention occupies a very crucial place in criminal law. The term ‘intention’ is not defined anywhere in the Indian Penal Code, but Section 34 of it deals with common intention. It implies a pre-decided plan and acting in accordance to execute that plan. It comes into the picture before the commission of the act.

Section 34 is limited to a situation, where an offense requires a particular criminal intention or knowledge and is committed by more than one person who shares that intention. Each person who participates in the act with such knowledge or intention will be liable in the same way as if it were done by him exclusively with that intention or knowledge. The liability of all the individuals involved in this circumstance is called ‘Joint Liability.’

Joint Liability

Joint liability occurs in the case when there is the existence of common intention in the criminal act done. If it can be shown that it was done by one of the accused persons in furtherance of the common intention of all, then the liability for the act may be imposed on any one of the persons in the same manner as if the act were done by him in his capacity. Court decisions have emphasized on the point that meeting of minds need not be something always very much before the incident, but could be something that may develop on the spot, at the very moment when the crime is being committed.

Proving that every one of the persons was involved in the actual act is irrelevant. The case of Barendra Kumar Ghosh v. King Emperor is one of the most important and earliest cases where the court convicted another person for the act of another done in fulfillment of common intention. A group of armed persons had entered the police station and demanded money from the postmaster, where he was counting it. They fired from the pistol at him, due to which he died on the spot. All of the accused were able to escape without taking money. The Police were able to catch Barendra Kumar Ghosh who was standing outside the post office keeping a check. Barendra on being arrested contended that he was only standing as a guard, but the Calcutta high court convicted him for the murder of the postmaster. His appeal to the Privy Council was also rejected.

There is also a general rule in the criminal jurisprudence that the courts cannot distinguish between the people involved in an activity and it is impossible to see what part is played by whom in the commission of the act, so each person is held jointly liable for the acts of another.

Common intention versus Similar Intention

A common intention can only be said to be formed when the intention of one is known to all others and shared by them. It does not mean the similar intention of several persons formed at the moment. The mere presence of the accused together is not sufficient to form a common intention to commit the offense. It is necessary that the intention of each one of ‘several persons’ be known to each other for constituting common intention; otherwise, it will be a similar intention. Similar intention can happen for several persons at the same time.

The distinction between a common intention and similar intention is a real one and if overlooked by courts, may lead to a miscarriage of justice. Section 34 can be invoked only when the accused shares a common intention and not one a similar intention. Unless the common intention is proved, individuals will be liable for their actions only. If there occurs any doubt, the benefit of the doubt is given to the accused.

Conclusion 

Section 34 does not lay down a separate offense but defines the liabilities. Therefore, it is always read with other sections for framing of charges or while deciding the punishment. The maximum sentence for an offense would depend upon the main offense along with which Section 34 is applied. To bring this section into effect a prior meeting of minds need not necessarily be proved, but it may well develop on the spot as between several persons and could be decided based on the facts and circumstances of each case. There must be an ultimate objective, the fulfillment of which should be the goal of each person involved.

Original blog is published in legodesk please do visit the website for legal service and legal help.

Impact Of Section 497 On Married Indian Couples

In 2017, a significant decision was passed by a three-judge Bench which struck down a colonial-era law that prescribed maximum imprisonment of five years to men for adultery. The instant Writ Petition was filed by one Mr. Joseph Shine under Article 32 of the Constitution of India. It challenged the validity of Section 497 IPC, read with Section 198(2) of the Criminal Procedure Code (CrPc). The Bench appreciated the submissions advanced by the learned counsel for the Petitioner and thereby felt the need to have a re-look at the constitutionality of the provision.

In this article, we will answer questions pertaining to the non-constitutionality of the provisions of Section 497 and its impact on married couples.

What is Section 497

According to section 497, “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 offense 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 a case, the wife shall not be punishable as an abettor.”  Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.

The provisions of the said section are very orthodox in nature and are based on societal presumptions. The constitutional rights of a woman, bestowed upon her by virtue of birth, are being gravely infringed upon. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, the said concept is absent. On a perusal of the language of the said provision, the words “without the consent or connivance of that man” only reflects the perilous inequality and creates a dent on the individual independent identity of a woman.

Section 497 makes two classifications

The first classification is based on who has the right to prosecute. It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person and is given the right to prosecute for the offense of adultery. Conversely, a married woman who is the wife of the adulterous man has no right to prosecute either her husband or his paramour.

The second classification is based on who can be prosecuted. It is only the adulterous man who can be
prosecuted for committing adultery and not the woman, even though the relationship is consensual; the adulterous woman is not considered to be an “abettor” to the offense.

The adultery law, therefore, has been criticized for treating women as property or chattel of their husbands. Consequently, the offense of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender.

Findings of the Apex Court

In light of the above arguments, it was observed that “The time when wives were invisible to the law and
lived in the shadows of their husbands, has long since gone by. Legislation that perpetuates such stereotypes in relationships, and institutionalizes discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution. There is, therefore, no justification for the continuance of Section 497 of the Indian Penal Code. framed in 1860, to remain on the statute book.”

Section 198(2) of the Cr.P.C. which contains the procedure for prosecution shall be unconstitutional only to the extent that it is applicable to the offense of Adultery under Section 497.

Adultery and Married couples

However, the issue remains as to whether “adultery‟ must be treated as a penal offense subject to criminal sanctions, or marital wrong which is a valid ground for divorce.

A criminal wrong is the one which is committed against the community at large i.e where the community is the victim of such a wrong. For instance, Murder is an offense committed not just against the family of the deceased but also against the society in general. On the contrary, a private wrong is the one which is committed against an individual. For example, a breach of contract.

Adultery may be an act committed to private by two consenting adults, it nevertheless is not a victim-less wrong. It negatively impacts the institution of marriage and family, the well being of the children and society in general, and therefore must be subject to penal consequences. Hence the State has a legitimate public interest in making it a criminal offense.

On contrary to this view, adultery is a marital wrong and therefore should only invite civil consequences. To criminalize a certain content is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm. However, a person should be able to make personal decisions in his/her life. such an act should be protected from public censure.

Adultery is undoubtedly a moral wrong committed against the spouse and the family. However, the fundamental right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary the State must consider whether the civil remedy will serve the purpose. Where a  civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

Conclusion

Before the enactment of the Marriage Laws, 1976, adultery was treated as the conduct of grave immorality and was not considered as a ground for divorce. Post the 1976 Amendment, the grounds for judicial separation and divorce are the same and it is a mark of great development in the Hindu Personal Laws.

While reading the judgment, Chief Justice Dipak Misra said, “Adultery cannot be a criminal offense, however, it can be a ground for civil issues like divorce.” It has been defined under Section 13(1) of the Hindu Marriage Act, 1955 and Section 22 of the Indian Divorce Act makes provisions for a decree of judicial separation on the grounds of adultery.

Read Also:   The New Rules For Divorce In India

To conclude, it can only be said that laws which may be relevant at a given period demand various changes with the passage of time. Education, development in civil-political rights and socio-economic conditions have drastically undergone a change. Therefore, the historical background in which Section 497 was framed, is no longer relevant in contemporary society.