Introduction To Adultery

The word ‘adultery’ is derived from the latin word ‘adulterium’. The ideology behind this word is
similar to ‘adulteration’ which means ‘the action of making something poorer in quality by the addition
of another substance’. Adulteration in any sense and in any thing is always regarded as harmful.
Adulteration in food or drugs is vicious to our health and adulteration in relationships may put a
question mark on them.
So, in layman’s language it will not be wrong to say that with reference to the above meaning of
adulteration, adultery is basically about willful addition of external person into the wedlock in order to
spoil it. Commonly it is lso known as ‘extramarital sexual relationships’.
Extramarital Sexual Relationships, as per this term, ‘a person gets into a sexual intercourse with a person
who is not his/her spouse’.
Current status of adultery law and facts related to the case
Joseph Shine V. Union of India
The Supreme Court has declared that section 497 is unconstitutional. Adultery is not a crime. This
judgment has overturned the previous rulings by the Supreme Court on section 497.
Adultery is no longer a crime. The judgment by a five-judge Supreme Court bench headed by Chief
Justice Deepak Mishra has overturned the previous three rulings on the matter.
Under Section 497 of the Indian Penal Code (IPC) Adultery was an offence and a convict could be
sentenced to five-year-jail term. Section defined adultery as an offence committed by a man against a
married man if the former engaged in sexual intercourse with the latter's wife.
The law states that only a man can file a case of adultery and that too against a man with whom his wife
has allegedly slept with. So, in essence, a woman can neither file a case of adultery, nor can she be
prosecuted on the ground of adultery. This cuts gender discrimination both ways, that is, it discriminates
against men and women.
It discriminates against men because while they can be prosecuted for the crime of adultery if they sleep
with a married woman, a woman cannot be prosecuted for sleeping with a married man.
This law on adultery discriminates against women, too, because while a married man can file a case of
adultery, a married woman cannot file a case against the husband or against the woman with whom her
husband slept.

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The law had come under sharp criticism for treating women as possession of men. An Italy-based Indian
businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year
challenging IPC Section 497. He contended that the law is discriminatory.

Grounds on which adultery law was challenged

These are some main grounds to revisit the law as follows:
# Law discriminates against men.
# When sexual intercourse takes place with the consent of both parties, there is no good reason to
exclude the wife and prosecute only her adulterer. Thus, Section burdens man alone for the offence and
grants immunity to wife by treating her as a victim according to prevalent social norms. Violation of
Article 14, 15 and 21.
# Arbitrary distinction is made between man and woman without any reasonable grounds.
# Not in consonance with changing Social Conditions.
# Today both women and men move shoulder to shoulder with each other. So any biasness in the law
towards any gender is like not evolving the law with the ever changing society.
# Promotes subordination of women.
# The section encourages the notion of treating wife as a commodity under the subjugation of husband.
It harms the individual independent identity of women whose prosecution depends on husband’s
consent.
History
Previous citations that challenged the validity of section 497 of IPC
1) Yusuf Aziz versus State of Bombay
# The adultery law first came under challenge in 1951 in the Yusuf Aziz versus State of Bombay case.
Petitioner contended that the adultery law violated the fundamental right of equality guaranteed under
Articles 14 and 15 of the Constitution.
# The dominant argument in the court hearing was that Section 497, governing adultery law,
discriminated against men by not making women equally culpable in an adulterous relationship. It was
also argued that adultery law gave a license to women to commit the crime.
# Three years later in 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497
did not give a license to women to commit adultery. The judgment said that making a special provision
for women to escape culpability was constitutionally valid under Article 15(3) that allows such a law.

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# Moreover, in an interesting observation, the Supreme Court said in the judgment that "it is commonly
accepted that it is the man who is the seducer, and not the woman." The Supreme Court stated that
women could only be a victim of adultery and not a perpetrator of the crime under Section 497.
# The argument was made to reject the contention that the adultery law was discriminatory against men.
However, despite declaring women as "victim only" in the occurrence of the crime of adultery, the court
did not allow them to file a complaint.
2) Sowmithri Vishnu versus Union of India
# The next important judgment regarding adultery law under Section 497 came in Sowmithri Vishnu
versus Union of India case of 1985. The Centre has cited this judgment in its 2018-affidavit to back
Section 497 of the IPC.
# In Sowmithri Vishnu case, the Supreme Court held that women need not be included as an aggrieved
party in the name of making the law even handed. It also explained as to why women should not be
involved in prosecution in the cases of adultery.
# The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery
in order to protect the sanctity of marriage. For the same reason, women could not be allowed to
prosecute their husbands. The judgment retained the offence of adultery as a crime committed by a man
against another man.
# The Supreme Court also rejected the argument that unmarried women should be brought under the
purview of the adultery law.
# The argument was that if an unmarried man establishes adulterous relationship with a married woman,
he is liable for punishment, but if an unmarried woman engages in a sexual intercourse with a married
man, she would not be held culpable for the offence of adultery, even though both disturb the sanctity of
marriage.
# The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law under
Section 497 would mean a crusade by a woman against another woman. The ambiguity related to
adultery law remained unresolved.
3) V Revathy versus Union of India
# In the next big case- V Revathy versus Union of India of 1988--on adultery law, the Supreme Court
held that not including women in prosecution of adultery cases promoted "social good". It offered the
couple a chance to "make up" and keep the sanctity of marriage intact.

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# The Supreme Court observed that adultery law was a "shield rather than a sword". The court ruled that
the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of
Section 497 to men.
# Besides the three Supreme Court judgments, there were two more important legal views in connection
with adultery law.

# The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal
Law Reforms of 2003 recommended amendment to the adultery law. Both argued to make Section 497
of the IPC gender neutral.
Timeline of Adultery Case In Court
The Supreme Court heard the matter on adultery for six days and reserved the judgment on August 8,
2018.
# October 10, 2017:Joseph Shine, petitioner, filed a plea in Supreme Court challenging the constitutional
validity. It stated Section 497 as "prima facie unconstitutional on the ground that it discriminates against
men and violates Article 14, 15 and 21 of the Constitution".
# December 8, 2017:The top court agrees to examine the constitutionality of the law.
# January 5, 2018:The apex court refers the matter to a five-judge Constitution bench
# July 11, 2018:Centre informs the court that striking the law down will destroy the institution of
marriage.
# August1, 2018:The Constitution bench commence the hearing the final arguments.
# August 2, 2018:The Supreme Court says adultery as a penal provision is violativeof the right of
equality under the Constitution.
# August 8, 2018:Centre favors the retention of penal law on adultery, says it is a public wrong which
causes mental and physical injury to the spouse, children and the family. The apex court reserves the
judgment.
# September 27, 2018:The apex court strikes down the penal provision and terms Section 497 as
unconstitutional.
Articles Involved
Article 14 (Equality before law)
# Article 14 says that state shall not deny to any person equality before the law or the equal protection of
the laws within the territory of India.

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# Article. 14 is available to any person including legal person viz. statutory corporation, companies, etc.
# Article. 14 is taken from the concept of equal protection of laws has been taken from the Constitution
of USA.
# The concept of the rule of law is a negative concept while the concept of equal protection of laws is a
positive concept.
# The concept of equality before the lawis equivalent to the second element of the concept of the ‘rule of
law’ propounded by A.D. dicey, the British jurist. But certain exceptions to it are, the president of India,
state governors, Public servants, Judges, Foreign diplomats, etc., who enjoy immunities, protections, and
special privileges.
Article 21 (Protection of life and personal liberty No person shall be deprived of his life or personal
liberty except according to procedure established by law.)
The right to life and personal liberty is guaranteed by the Indian Constitution in Part III under the
category of Right to Freedom (Articles 19-22). The right to life and personal liberty in accordance with
the procedure established by law is guarantee by Article 21 of the Indian Constitution. The right is
available to both citizens and non-citizens.
The scope of Article 21 have been expands over the years through judicial pronouncements over the
years.
However, in the Maneka Gandhi Case (1973)the Supreme Court overruled its judgement in the Gopalan
Case by widely interpreting Article 21. It stated that protection under Article 21 should be available not
only against arbitrary executive action but also against arbitrary legislative action by introducing the
American concept of ‘due process of law’. It pronounced the expression ‘Personal Liberty’ in Article 21
is of the widest amplitude and it covers a wide range of rights that go to constitute the personal liberties
of a man.

Article 15 (Prohibition of discrimination on grounds of religion, race, Caste, sex or place of birth.)
The Concept of Article 15
The concept and purpose of this Article is to prevent the government from making discrimination on the
basis of religion, race, caste, sex, or birth place. One of the clauses clearly states that no citizen shall be
subject to “any disability, liability, restriction or condition” on the basis of religion, race, caste, sex, and
place of birth. Their access to public properties like shops, restaurants and entertainment hubs should not

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be restricted on grounds of religion or caste. The Article also guarantees special provisions for women,
children and socially disadvantaged classes.
Benefits of Article 15
The clause (3) of the Article empowers the government to make special laws/ provisions for women and
children. It is considered one of the earliest legislation that emphasized on gender equality and women
empowerment.
In Article 15 (4) and (5), the Constitution gives government the power to make special provisions “for
the advancement of any socially and educationally backward classes of citizens.” This holds true for the
scheduled castes and the scheduled tribes as well. Such ‘protective discrimination’ is a step taken to
eliminate inequalities existing in society. Moreover, the reservation of OBCs under Article 15 was
aimed at providing equal opportunities in education and raising social and economic levels of those who
are lagging behind.
Amendments to Article 15
This anti-discrimination law made its first exception by including a Clause (4) during the 1st amendment
in 1951. With this amendment, the article made way for reservation for SCs and STs and other backward
classes to benefit them academically, socially and economically.

It’s important to note that Clause (5) of Article 15 was originally not a part of the Constitution. It was
introduced during the Ninety-Third Amendment Act in 2005. There was widespread protest over the
central government’s decision to include this clause. Even stronger opposition came from the non-OBC
students, which led to the emergence of several writ petitions challenging the Amendment.

Sections Covered Under This Case

Section 198(2) of code of criminal procedure, 1973.(prosecution of offences against marriage)

According to Section 198(2) of the Code of Criminal Procedure, no person other than the husband of the
woman shall be deemed to be aggrieved by any offence of adultery punishable under Section 497 and
any offence enticing, etc., a married woman punishable under Section 498 of the Indian Penal* Code.
However, in the absence of the husband, some person who had care of the woman on his behalf at the
time when such offence was committed, may, with the leave of the Court, make a complaint on behalf of
the husband.

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Section 497 used to be read with CrPC Section 198(2) in the matters of prosecution for offences against
marriage. The combined reading of the adultery laws allowed the aggrieved husband of the married
woman in adulterous relationship to file a complaint. But same right was not available to an aggrieved
wife if her husband wsa found to be in an adulterous relationship.
Section 198 of the Code of Criminal Procedure, 1973, says only the husband of the married woman, who
had sexual intercourse with another man, could file a case against the male who indulged in the act with
her.
Section 13(1) of the Hindu marriage act, 1956 (adultery as the ground of divorce)
Divorce through Adultery
Grounds for divorce on the basis of adultery is mentioned under section 13(1)(a) of Hindu marriage
act,1955 which states that any marriage before or after the commencement of this act shall be dissolved
by a decree of divorce on the ground that the other party had voluntary sexual intercourse with any
person other than his or her spouse after the marriage.
As per section 13(1) (i) of HMA both husband and wife are liable for the offense of adultery means if
wife makes sexual relations with other than his husband then, husband can file case against his wife or if
the husband makes sexual relation other than his wife then, wife can file case against her husband. One
act of adultery is enough to constitute a matrimonial offence.
A single act of Adultery constitutes the ground. An attempt to commit adultery must be distinguished
from adultery and will not have itself be a sufficient ground for judicial separation
Dennis v Dennis the court in this case asserted that “Adultery strictly speaking consists of sexual
intercourse by one party to the marriage with some person other than the opposite party. Strictly
speaking there has to be some sexual penetration though not necessarily a complete sexual act. Mere
indecent behavior is not enough though intensity thereof would be a pointer or indicator as to whether
the adultery took place at some other point of time”.
Conclusion
As per Hon'ble former CJI Mishra
Referring to other countries like China, South Korea, Japan where adultery is no longer a crime, CJI
Mishra said, "Adultery can be ground for any civil wrong. There can't be any social license that destroys
the matrimonial home, but adultery should not be a criminal offence." He also declared Adultery
unconstitutional. Adultery might not be the cause of an unhappy marriage, it could be the result of an

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unhappy marriage. Mere adultery can't be a crime, unless it attracts the scope of Section 306 (abatement
to suicide) of the IPC. Thinking of adultery as a criminal offence is a retrograde step.

Marital Rape - A Justified Crime In India

According to sacred scriptures God instituted marriage as a pinnacle of creation ..Marriage is an
institution where the men and women admit themselves to the family life, with a normal and healthy
sexual relationship Where the wife expect the love, respect, equality, understanding, faith and trust in a
relationship . The union of soul is reduced to the value of - just for lust. And women are still dependents
to men by various reasons like in the name of illiteracy , poverty, family, children , tradition, myth and
belief. majorly the financial dependency because still education to every girl is a goal in India. And if
the married women grabs the courage to express the rape in marriage there is no law in India to
recognize the non consensual rape in the matrimonial relation as marital /spousal rape, because it is
merely a domestic violence against the married women triable under PROTECTION OF WOMEN
FROM DOMESTIC VIOLENCE ACT 2005 Which actually provides a civil remedy to the victim( the
wife ). Or punishable to the extend to the extent of one years imprisonment and the offence is cognisable
only when the affected or the relative of her gives information of commission of offence to the officer in
charge of the police station. The discussion is further held on following.
Is Marriage A License To Rape In India?
Etymology - The word ‘rape’ has been derived from the term ‘rapio’, which means ‘to seize’. It is a
forcible seizure or the ravish of women without her consent. The Supreme Court of India has correctly
described rape as ‘deathless shame and the gravest crime against human dignity’ . And the rape in
marriage is one and the same - the only difference is ,it is committed by her own protector (the
husband ). And according our law, marriage is an absolute license to husband to exploit her to any
extend. Because the age-old condition and myth over marriage is still prevailing.. any sexual assault
crimes under the preview of marriage is excusable and exceptional. The marital rape exemption can be
traced from the statements by Sir Mathew Hale, Chief Justice in England, during the 1600s.

He wrote - “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by
their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband,
whom she cannot retract.”

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This century old submission is still in our penal statue ,Indian penal code 1860. In section 375 of IPCs
exceptional clause. That is sexual intercourse by a man with his own wife not under the age of 15 years
is not a rape . the exception clause give a full liberty and immunity to the lawfully wedded husband to
ravish the wife to any extend, though it might affect her dignity and life a whole . Moreover state
amendment like Manipur substituted the age of fifteen to the age of thirteen. The points to be considered
is, This exception is absurd and contrary to the same section 375 of IPC s sixth description – if a man
commits a rape on a woman with or without her consent when she is below the age of eighteen years is a
rape. Secondly this exception encourages the child marriage.
According to Indian law a person below the age of 18 years is a child . Above the age of age of fifteen
years in the exceptional clause means and includes a child( below the age of eighteen years ).Thirdly
against her will and without her consent is unconsidered in rape in marriage. . This makes condition to
the married women that they have ‘no right to say no ‘ to their husband because the belief is that wife
has implied consent to have sex with the husband it was considered immaterial whether act is made with
or without her consent and will. which is actually humiliated and against the perspective if human rights.
According to law any act which is not penalised is not a crime here the marital rape is an exception to
the crime rape .The nationwide urge is still not penalised in Indian law .moreover it is considered as
domestic violence under (DVA 2005), and the ACT on prevention of domestic violence is much
disappointing to married women because it awards a civil remedy like judicial separation or annulment
of marriage to the victim of domestic violence, even to the crime of sexual assault by the husband over
the wife is inclusive. Further it punishes the respondent (not even stated as criminal who committed the
sexual assault on her wife) only in the case of breach of protection order by the respondent (includes the
husband and the relatives of husband) and to the extent of cruelty under 498 A of IPC ,this provision is
inserted in IPC with the main objective of protecting the women on demand of dowry , and that too the
offence is cognisable only when the aggrieved person or by her relative makes compliant to the officer
in charge
And the act ‘cruelty’ against women is ground for divorce under Hindu marriage Act 1955 . The only
safe guard to the married women against the sexual act of her husband is on when the couple were
separated by judicial separation ,by the court under section 376-B of IPC . This safeguard is not to the
women who is in matrimonial relationship. And the statement given by the wife against women is
inadmissible according to INDIAN EVIDENCE ACT 1872. Section 122 ;this section prevents the
women from disclosing any communication made by her partner in the course of marriage with an

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exception that unless a suit between the married person means a proceeding between the married person
in family court proceeding (in assault like divorce). or proceeding in which one married person is
prosecuted for an offence committed against another not to the crime committed against the partner (the
wife). Hence marital is not a crime the evidence is inadmissible.
Constitutional Guarantee And Exceptional Clause of Penal Statute
Constitution the supreme law of land, which reflects the soul of nation. Article 14 and Article 21 of our
Constitutional guarantees fundamental rights to the citizen of India under part three . Article 14 says 1.
Equality before law .2. Equal protection of law .here the victim (the wife ) is not provided with the equal
protection of law , here the exceptional clause of section 375 of Indian Penal code is discriminates the
protection between the married and unmarried women and punishment to the stranger and exception to
the husband. This provision violates equal protection of law between the victims , the married and
unmarried women and secondly equality before law on penalising the rapist ,of stranger and the husband
who committed the similar crime. The equals to be treated equally As notable the exceptional clause on
marital exemption should be “just, fair and reasonable.
Right to life and personal liberty Article 21 enshrined in the Constitution of India, is to protect the
dignity of married women too. This Article is interpreted liberally by our Indian judiciary in numerous
cases notably in menaka Gandhi case stated Article 21 has become source of all forms of rights to
protect one’s life and personal liberty. And life is something more than mere animal existence . The
exceptional clause of section 375 of IPC is violative of Article 21.

The clause deprives the free will and consent of married women to share her anatomy with the beloved
husband. Further it gives absolute freedom to husband to ravishment her any extend as a property in the
hands of husband. In addition this Article pave way to rights like the right to privacy, right to bodily
self-determination and right to good health.
1. Right to live with human dignity Supreme Court has rightly pointed out that rape of women violates
Human dignity . The term Marital Rape itself shows it is rape , the provision which affects the dignity of
married women is violative of Article 21.
2. Right to sexual privacy , any form of forceful and unwanted sexual intercourse violates the right of
privacy. And every women is entitled to her sexual privacy This clause violates her sexual privacy , in
the matrimonial relationship.

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3. Right to bodily self-determination where traditionally women were bound to beget children in her
family life. In the name of reproduction ( child bearing )women were brutally treated by there husbands .
Even the women themselves believe it is fair in family life, her well being and choice of intimation is
unfocused This exception is violative of women’s rights to bodily self-determination. i.e., consent to
sexual intercourse.
4. Right to good health this is one of the major problem faced by the married women in case of
unwanted sexual intercourse with their husband. A forceful sexual intercourse in marriage take away her
right to good health as well the possibility of sexually transmitted disease (STD) like HIV / AIDS to the
married women from their male partner. Physical as well Gynaecological effects including miscarriage,
stillbirths, bladder infections, and infertility.
Justice Verma Committee’s Recommendations And The Response of Government
The 172nd Law Commission report, which was passed in March 2000 has considered rape within the
bonds of marriage” as such a provision may amount to excessive interference with the marital
relationship. Further strengthening anti-rape law, Indian government constituted Justice Verma
Committee on December 23, 2012 after the Delhi gang rape case. comprising retired Justice J.S. Verma,
retired Justice Leila Seth and Solicitor General Gopal Subramanian, has recommended, that the
exception for marital rape be removed and the relationship between the accused and the victim is not a
valid defence
But the recommendation of Justice Verma Committee’s suggestions on marital rape is unconsidered in
Criminal Amendment Act 2013.On March 10th of 2016 ,the statement given by Women and Child
Development Minister Maneka Gandhi in Rajya Sabha on the question whether the government is
criminalizing marital rape?
The cabinet minister expressed the word to word copy of the State of Home Affairs Haribhai Parathibhai
Chaudhary in Rajya Sabha in April 2015. Thus this is the second time where the central government has
regreted on criminalising marital rape using the exact same words:
“It is considered that the concept of marital rape, as understood internationally, cannot be suitably
applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad
social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament
etc..” This is the reasons given by the people representative on behalf of Indian government.
International Obligation And Recommendation

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The international bill of rights for women CEDAW,. an international treaty adopted in 1979 by the
United Nations General Assembly , came into force by 3 September 1981 and has been ratified by 189
states ,the first international treaty addresses discrimination against women in all Spheres, and to
eliminate all forms of discrimination against women . Article 1 of CEDAW Says any discrimination
should not be imposed irrespective of their marital status and ARTICLE 2 read with General
Recommendation No. 12 (1989) discusses "violence against women.”, and duty of state party to protect
women. India is signed the Convention on 30th July 1980 and ratified in 9th July 1993. The state has a
obligation to incorporate the Convention and to make appropriate law to its effect According to our
Constitution of India. Article 51 say state to respect international Law and treaty obligations and Article
253 of the Constitution provides Parliament can make law to the whole or to any part of territory of
India for implementing any treaty , agreement or convention . On 24th July the CEDAW committee on
its fourth and fifth periodic reports of India. The Committee has made a recommendation to implement
Justice Verma committee’s recommendation to make marital rape a crime, by amending the criminal
law.

Judicial Stand on Marital Rape

The role of Indian Judiciary in case of Marital rape is silent . Whereas the Parliament is to make law and
judiciary is to interpret. The judicial activism by the judiciary is silent in the matter of the crucial act
over the married women -The marital rape ,even the judiciary is of the view that a husband can have
forced sex with his wife. The Delhi High Court on February 2015 and The Kerala High Court on
October 2015 refused to entertain a PIL challenging a provision section 375 exceptional clause as
unconstitutional. Even though there have been massive protests against rape all over the country .Special
Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is
not rape. Further the judgment came from Additional Sessions Judge, Virender Bhat, in October last
year stated a controversial statement that “girls are morally and socially bound not to indulge in sexual
intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be
heard crying later that it was rape.”

These cases shows rape in marriage is not an offence , and to be notable- even rape outside marriage will
not a rape if the rapist marries the victim ,this subject is came arise from Justice Devadass judgement in
madras high court bench, he granted bail to the rapist to’ mediate’ with the victim. Later supreme court

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judgement ruled that out, “as under no circumstances rape case can be compromised”. If not the
marriage after rape will the remedy to the victim of rape.
Marital Rape Is A Crime In Nation Countries
From 19th century the feminist movement also known as women’s liberation movement , began on
dated may 1968 . This movement has focused on various aspects of women in the society and to remove
the dominance of the patriarchal society. The movement spread as three waves in US, Canada, and
European countries. The movement raised voice against the behaviour of men against their wives in
forced and coercive sex in the name of marriage, and they also demanded women's right over their body
on fertility, consent to marital sexual intercourse , abortion . This Feminist movement made a great
impact on world wide countries to protect the women at large , this made numerable countries to make
law to protect the individuality of the women and to protect from sexual violence like rape in marriage.

Certain countries like: Albania ,Algeria, Australia, Belgium, Canada, China, Denmark, France
,Germany, Hong Kong, Ireland ,Italy, Japan, New Zealand , Sweden, United Kingdom, United States
and Indonesia and of about 104 countries, Where marital rape is an offence punishable but India is not
one of them. United states criminalised marital rape in 1970’s and the case in House of Lords , Lord
Keith, said to the Court declared, ‘marriage is in modern times regarded as a partnership of equals, and
no longer one in which the wife must be the subservient chattel of the husband.’ recently Malaysia in
2007 , Turkey in 2005 and Bolivia in 2013. But still about 2.6 million women are in the countries where
marital rape not a crime.

The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49
have been beaten, raped or forced to provide sex . And National Family Health Survey on 2005 reported
that most of the rape in marriage is unreported because it is domestic violence in Indian law ,only about
0.06 % cases were reported to police as marital rape . and in the official report of National Crime Record
Bureau data mentioned about 37.2% of women faces sexual violence by their husband. On 2014 study
by UNPF and International Centre for Research on Women found that 60 % of men admitted using
violence against the partner by kicking, beating, slapping to show their dominance.
Conclusion
The changing society is empowering the women in worldwide. Just because the woman is married it
does not men that she lost her dignity and chastity. She is not a property or a chattel in hands of her

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husband . Rape the heinous crime against the women not only to the unmarried women ,it is also the
same to the women in matrimonial relation. It should be held immaterial whether the women who is
sexually assaulted is married or unmarried and who committed is husband or a stranger . The absurdity
in law is a women can protect her Right to life and personal liberty but not her own body with in the
marriage should be focused, that it is violative of our constitutional guarantee. The exception clause
should be removed from the Indian Penal Code 1860in light of recommendation of justice verma
committee report. And the punishment for Rape under section 376 of IPC should be extended to marital
rape also. A new provision marital rape should be created. There should be a judicial awakenings too.
As UNITED NATION rightly pointed out ,we require generation of awareness by ‘’educating boys and
men to view women as valuable partner in life’’. And now India has adopted 17 goals of UN and
looking ahead to achieve the goals of UNITED NATION DEVELOPMENT PROGRAMME’S
SUSTAINABLE DEVELOPMENT GOALS (SDGs)- with the agenda of transforming our world by
2030. This goal will be successful only if the crime against women -marital rape is held criminalised.
Marital rape should not be still decriminalized just because he is her legally wedded husband. The
marital rape is a rape. The love should not hurt...

Is Indian Society Doing Enough For The Transgender Community

Calling ourselves as law abiding citizens and a specified and independent part of the mainstream Indian
society is not enough and falls short when itcomes to certain issues prevailing in the very society in
which we were born, are breathing and will grow old. One of these problems is discrimination against
the transgender community in our country.
As a matter of fact, the transgender community in our nation has had to face numerous instances of
discrimination and severe segregation whether or not; it was related to exercising the rights, the question
of their privacy, their safety and hereby specifying about the safety of transgender women. This is the
keynote affair for which the people of this country have to oppugn.
Our country has recently been named world’s most dangerous place for women, where four women are
raped every hour as per the research and stats, let alone the conditions for transgender women.
Not only is rape an issue pertaining here and becoming voluminous with each passing day but also, there
are other matters of concern as well viz. the question of the fundamental rights. Each and every citizen
of our nation deserves and is entitled to right to equality under Article 14; Article 15 talks about the

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prohibition of discrimination on the ground of religion, race, caste, sex or place of birth. Another one,
Article 21 ensures the right to privacy and personal dignity to all the Indian citizens. It is to be noted that
beyond the categorization of the rights being restricted to only the citizens of our country, the
Constitution of India makes no further discrimination among the right holders. However the quite
genteel lot of ours lags behind when the transgender community is continued to be ostracized if the same
is concerned.
We are all well aware and versed with the events and upshots around the world because of our exposure
to various social platforms. Conversely, not the entire clique knows about the first transgender lawyer of
India. Her name is Sathyashri Sharmila who hails from Tamil Nadu. I have struggled a lot in my life, she
quoted in a recent interview.
The 36 years old envisions a society where people from her community can serve at higher positions
across the country. This will not be practically possible if our nation does not eliminate the
discrimination against Sathyashri's community. It is us; the youth of our nation who can and should
help her turn her aspirations to a sweet reality. Another case of discrimination can be noted in Jalore in
the state of Rajasthan where Ganga Kumari had filed a petition in the court when she was denied the
opportunity to be appointed by the Jalore police superintendent, even after clearing the related
examination.
Hence this attests that providing a third slot in the examination form was just not enough for her
recognition. The discrimination in the minds of people against Ganga, Sathyashri and many more can be
can only be wiped off if the Indian society changes its mind-set and opens its heart and soul to them. In
Ganga Kumari's case the Honourable State High Court directed the Rajasthan police and issued
appropriate commands after which she was appointed as country’s first transgender women constable.
This decree was issued by Justice Dinesh Mehta.
A positive action in this pretext is the step taken by the Central Board of Direct Taxes (CBDT), which
issued a notification recently thereby allowing transgenders to be recognised as an independent category
of applicants for obtaining a Permanent Account Number (PAN), for their respective tax related
transactions. There will now be provided a new tick box. But the question is; will the new tick box be
enough?
In the lawsuit, National Legal Services Authority vs. Union of India, the judgement by the Supreme
Court directed the Union Government to look beyond the binary. The court also unanimously passed the

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order on Article 377 of the Constitution of India making the law more inclusive for everyone, including
the people from the transgender community.
We should certainly hover over the positive sentiment; our country has developed for the transgender
community gradually. Our nation can audaciously take pride in many ‘firsts’ in the trans community;
two of them already stated.
If it were to compare, even the United States is in a dangling situation between allowing and preventing
transgender people from joining the army based depending on gender-by-birth.
However, this is not enough and the struggle still goes on; as stated by Meera Sanghamitra who is a
member of National Alliance for People’s Movement and a Trans women. She denies addressing her
gender as third. In an interview she pointed out, We are all for diversity for gender, not hierarchy in
gender. If we are the third gender, who decides what the first and second genders are?

Thus concluding, it is we who have to think through and act for them now so that they are capable
enough to act for themselves in the future. We have the duty to empower them and save them from any
kind of segregation and bigotry, be it simple or harsh. It is all about a simple expression- ‘You are more
than the sex you’re born with’

Right to Die with Dignity and Art 21 of Indian Constitution

No person shall be deprived of his life or personal liberty except according to the procedure established
by law. (Art 21 of Indian Constitution)
A five-judge bench, in Gian Kaur (1994) case had held that both assisted suicide and euthanasia were
unlawful. It stated that right to life (art 21) did not include right to die, hence overruling the two-judge
bench decision in P.Rathinam which struck down sec 309, IPC (attempt to suicide) as unconstitutional.
In Gian Kaur, the apex court held that Art 21 speaks of life with dignity, and only aspects of life which
make it more dignified could read into this article thereby pointing out that the right to die was
inconsistent with it.
However, later in Aruna Shanbaug (2011), it held that passive euthanasia could be a nod in case of
exceptional circumstances and under strict monitoring of the apex court. After Aruna Shanbaug case, the
241st Report of the Law Commission of India on Passive Euthanasia has also recognised passive
euthanasia, but no law has been enacted.

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In this case, Aruna Shanbaug was a nurse working at the King Edward Memorial Hospital, Mumbai, On
27 November 1973, she was sodomised by a sweeper. During the attack, she was strangled in a chain,
and the deprivation of oxygen has left her in a vegetative state ever since. On behalf of Aruna, a social
activist filed a PTI in the Supreme Court arguing that the “continued existence of Aruna is in violation
of her right to live in dignity." She argued that with the patient unable to see or speak properly, keeping
her alive violated her basic dignity. The Apex Court rejected the plea to discontinue Aruna's life support
but issued a set of broad guidelines legalising passive euthanasia in India. The court's decision to reject
the discontinuation of Aruna's life support was based on the fact that the hospital staff who treat and take
care of her did not support euthanizing her. Aruna Shanbaug died in 2015.

To live with Dignity Also includes Right to Die with Dignity

In common cause (A regd. society) V Union of India ( AIR 2018 SC 1665) , a five judge a constitutional
bench of Supreme Court unanimously ( albeit with four separate concurring judgements) held that the
right to die with dignity is a component of the right to life under Art.21 of the constitution.

In doing so, there is no requirement of legislation to legalise passive euthanasia:

"The right of the individual to die with dignity takes precedence over of the interest of the state in
preserving the sanctity of life "

The Supreme Court judged the question of whether the right to life includes right to a dignified death
based on both legal and moral tests. According to Justice D.Y. Chandrachud, “Dignity is the core value
of life and personal liberty which infuses every stage of human existence. Dignity in the process of
dying as well as dignity in death reflects along tearing through the ages that the passage away from life
should be bereft of suffering".

The court legalised living wills or as they choose to call it advance directives. A " living well" is a
written document by way of which a patient can give his explicit instructions in advance about medical
treatment to be administrated when he or she is terminally ill or no longer able to express informed
consent including withdrawing life support if a medical board declares that all lifesaving medical
options have been exhausted.

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The living will or advanced directive would specifically instruct next of kin and medical professionals to
not revive or allow for passive euthanasia in such situations. Doctors allowing passive euthanasia on the
basis of advance directives no longer need to live in fear of legal against them.
The judgement overruled the finding of Aruna Shanbaug judgement viz. the mechanism of passive
euthanasia can only be provided for through legislation. The basis for this finding is the individual's
right to self-determination and autonomy, we in includes a right to live with dignity. ‘to live with dignity
also includes a right to die with dignity', held the Apex court. The court has left the door open for
appropriate legislation for passive euthanasia, with judgement to hold forth in the interim.
Accordingly, the Supreme Court provided a two-step vetting process by medical experts and a final
vetting by a judicial magistrate before an advance directive could be given effect to. In such a case, the
hospital treating the person would first set up a medical board (comprising the head of the department
treating him plus three other medical experts) which has to rule in its favour.
This opinion will be conveyed to the district collector who will have this decision vetted by another
medical board consisting of the chief medical officer and three medical experts of 20 years standing.
Should this board to clear it, the magistrate will ensure that it is carried out and the records kept with the
high court for three years. In case the person hasn’t registered such an advance care directive, his family
and friends could still set into motion the process to ensure that his treatment is not prolonged through
artificial means.

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 Use And Misuse of Section 498A
By Vasundhara | Views 7639
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It is an evident fact that dowry-related violence in India, is not limited to a particular religion, it is that
social evil, whose greedy roots are rooted in each and every part of the country. According to a BBC
report in 2013, around 309,546 crimes were reported against women, of which 118,866 were for
domestic violence alone. Section 498 A, of Indian Penal Code, is one of the greatest rescues for
Violence against woman (VAW), which is a reflection of the pathetic reality of the domestic violence
occurring within the four walls of a house.
Indian National Crime Record Bureau, as per 2012, reports the presence of 8,233 dowry death cases
across India. When a man and woman join hands together under the voluntary union for life in the form
of marriage, it becomes mandatory for the husband to take care of and maintain his wife and bear up his
responsibility. But this sacred union is often dented by the stigma, called dowry, because of which
women from time immemorial have been ill-treated, harassed, killed, divorced for the simple reason that
they didn't bring dowry or the commodities brought by them is lesser than the next door.
Today section 498 A, is among the most debatable sections regarding women, as it is claimed that it is
more often misused than used. Even when the former Union minister for Women and Child
Development[1], stated about 70 % of women in India to be victims of domestic violence, there was a
huge commotion in media, several foundations like that of Save India Family Foundation came forward
and reported that while giving the stats she deliberately avoided the actual convictions in dowry death
trials after false cases were dismissed in the courts. But the question still remains, that can some handful
misused cases, make us neglect and shut our eyes towards the real scenario of the society where a large
section of the women are the oppressed section and have been subject to cruelty by the husband or his
family?
The Indian Penal Code, 1860, was amended in 1983 and resulted in the insertion of Section.498A which
deals with Matrimonial Cruelty to a woman. By the same Amendment Act, Indian Evidence Act was
also modified by the addition of section 113-A to increase presumption regarding abetment of suicide by
a married woman. The introduction of Section 498-A of I.P.C was with the main objective to protect a
woman who is being harassed by her husband or relatives of husband, therefore as per Chapter XXA of

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Indian Penal Code, under Section 498 A, Matrimonial Cruelty in India is a cognizable, non-
compoundable and non-bailable offense.
The Section states:
Husband or relative of husband of a woman subjecting her to cruelty.
“Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be
punished with imprisonment for a term, which may extend to three years and shall also be liable to a
fine.
Explanation – for the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related
to her to meet any unlawful demands for any property or valuable security or is on account of failure by
her or any person related to her to meet such demand.”[2]
Section 113A of Indian Evidence Act
Presumption as to dowry death-
When the question is whether a person has committed the dowry death of a woman and it is shown that
soon before her death such woman has been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, The court shall presume that such person had caused the dowry
death.
Explanation- For the purpose of this section dowry death shall have the same meaning as in section 304-
B of the Indian Penal Code (45 of 1860).”[3]
It was considered that only a small fraction of the women involve such cruelty where the cruelty of the
husband and the relatives of the husband culminates in suicide by or murder of the helpless woman
concerned, therefore, it was proposed to amend Indian Penal Code, 1860, the Code of Criminal
Procedure,1973 and the Indian Evidence Act, 1872 suitably to deal effectively not only with cases of
dowry deaths but also cases of cruelty to married women by the husband and the relatives of the
husband. The main object of the legislature was to combat the menace of dowry death and cruelty[4]
Understanding the meaning of Cruelty as per the concerned section, it was held in a famous case[5], that
common essential in offenses under both the sections 304B and 498A of Indian Penal Code is cruelty. It
was also stated that though the concerned two sections are not mutually inclusive to each other but both
are distinct offenses and persons acquitted under one section, i.e Section 304B for the offense of dowry

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death can also be convicted for an offense under the other Section that is, Sec.498A of Indian Penal
Code. In another case court described that what exactly amount to cruelty, according to the court the act
of harassment would amount to cruelty as well. The court stated that drinking and late coming habits of
the husband coupled with physical abuse that is beating and demanding dowry also amounts to cruelty
as per the meaning of the concerned section[6]. In a case before the Supreme Court, it was observed that
the concerned section has given a new dimension to the concept of cruelty for the purposes of
matrimonial remedies.
In a precise way, we can say that under the Section 498-A of Indian Penal Code, cruelty by itself
amounts to an offense whereas under the other section, that is section 304-B the offense is of dowry
death and the occurrence of death must be during the time period of seven years of marriage, but there is
no such period mentioned in section 498-A.
The court in another celebrated case[7] held that the word cruelty is defined in the explanation provided
with the section, which inter alia declares that harassment of a woman with the object to coerce her or
any person related to her to meet any unlawful demand by the husband or his family members or
relatives for any property or any valuable security amounts to cruelty.
We can thus summarize the kinds of cruelty which the section in actual covers, Cruelty by:
(a) deprivation and wasteful habits,
(b) vexatious litigation,
(c) persistent demand,
(d) extra-marital relations,
(e) Taking away children,
(f) false attacks on chastity,
(g) non-acceptance of an infant girl,
(h) harassment for non-dowry demand.
In several judgments the court has also brought the husband guilty of abetment of suicide and the
husband having an illicit relationship with another woman where and used to beat his wife making it
persistent cruelty, under the presumption of cruelty within the meaning of section 113-A, Evidence Act,
1872 and also within the meaning of section 306 within the meaning of Explanation (a) of section 498-
A.

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In another celebrated case[8] involving the death of a newly wedded woman by burning wherein, the
circumstances did not establish either murder nor an abatement to suicide and ultimately resulted in the
escape of the in-laws from the jaws of section 300 and 306, but ultimately they were caught into the web
of this newly enacted section 481A, for prevention of harassment for dowry. As it was brought to the
notice of the court that they were persistently demanding valuable items from the girls side, and also the
fact that already a large number of articles were taken by the deceased father after her death from her
matrimonial home depicted that there was an evident pressure being exerted on the in-laws and
continued to be exerted till death of the girl for more money and valuables.
Sec 498A and the Allegation of Misuse:
With the rise in the rate of education, financial security, and modernization the more independent and
the radical feminists have also made Section 498A of IPC, as a weapon in her hands than a shield.
Because of which many helpless husbands and their relatives have become the victims of the vengeful
daughters-in-law of their house. These days in many cases where Sec 498A is invoked, they turn out to
be false cases (and this is time and time repeatedly accepted by the High Courts and Supreme Court of
India), as they turn out to be mere blackmail attempts by the wife (or her close relatives) when troubled
with a stressed marriage. Because of which in most cases the Section 498A complaint is generally
followed by the demand of huge amount of money to settle the case outside the court.
In one of the cases [9], the court held specifically that there are misuse and exploitation of the provisions
to such an extent that it was hitting on the basis that is the foundation of marriage itself and which
ultimately proved to be not a good sign for the health of society for the public at large.
The same statement of the "misuse' of laws vehemently is even ascertained by the responsible authorities
of the society, such as the police, politicians and even judges of the distinguished Courts. Particularly
the allegation of misuse is made against Sec 498A of the IPC and against Sec 304B. Similar views were
also expressed by the former Justice K T Thomas[10] in his article, even the 2003 Malimath Committee
report on reforms in the criminal justice system also depicted, significantly, about the "general
complaint" of Sec 498A of the IPC to be a subject to gross misuse; and therefore the same report
suggested an amendment to the impugned provision, however, it failed to provide any data regarding
how frequently the section is subject to misuse.

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Approach required
Since the provision has brought into force the Indian Courts have been using the impugned provision to
safeguard the women against the members of her own matrimonial family from facing cruelty. It is a
fact that about 9 out of 10 of the cases brought regarding women are mostly related to dowry, wherein a
woman is continuously threatened and coerced by the in-laws or the husband for the want of more
money and property, whose un-fulfillment, leads to the torturing, harassment, threatening and abuse of
the women, which can be both physically and verbally. Likewise in a celebrated case[11] due to
insufficiency of dowry demands the woman was given calmpose tablets and she was even made to cut
the arteries of both her hands. It is also seen that sometimes, only asking for dowry may not be the cause
but for several other reasons like that of her complexion or family status the woman is tortured to death.
Therefore by showing any mercy to abusers or giving them a chance of the benefit of the doubt is
completely wrong. As in a celebrated case[12] the accused were not punished because they had the
leverage of benefit doubt, even though the letters of the deceased woman, clearly stating that harassment
had taken place with her, which generally is strong evidence.
It is important to note that the domestic violence and abuse by the spouses and family members are very
complex behaviors and the social organization of courts, legal cultures, and the police systematically
tend to devalue several domestic violence cases. Therefore the perspective of the state and the people
needs to change from potential "misuse" of the concerned laws of domestic violence to that of
implementing it for their real purpose and thus to recognize that any such type of violence is a crime and
to protect women who have shown the courage and stood up to file complaints against their abusers.
End-Notes
[1] Mrs. Renuka Chowdhry in 2006
[2] Section 498 A Indian Penal Code, 1860
[3] Section 113-A of Indian Evidence Act, 1872
[4] Sushil Kumar Sharma vs. Union of India; JT 2005(6) SC266
[5] Kaliyaperumal vs. State of Tamil Nadu 2004 (9) SCC 157;
[6] Jagdish Chander vs. State of Haryana,1988 Cr. LJ 1048 (P&H)
[7] Inder Raj Malik vs. Sunita Malik, 1986 (2) Crimes 435
[8] Wazir Chand vs. State of Haryana 1989 SCC(Cr) 105
[9] Savitri Devi v Ramesh Chand & Ors II (2003) DMC 328
Adultery - Decriminalization of Section 497 of IPC A Way Towards Legalism Prostitution

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Adultery means sexual relationship of a married person other than with spouse. In modern times, most
of the countries opted out to decriminalize adultery but from ancient times, adultery was a sinful act
almost in every religion. In India, the offence of adultery was punishable under Section 497 of the
Indian Penal Code, 1860, and entailed a maximum punishment of five years, or with fine or both. Sec.
497 states, 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.
Neither all the men are wrong, nor all the women are right. Women cannot be abettors, is not true in all
the cases. Modification in the law was very essential, to serve the purpose of Right to Equality. But
decriminalizing section 497 of IPC is having more loopholes than the earlier law. Its anti-woman and
anti-human. If we allow men to do anything of their choice, there wont be any difference between men
and animal, in other words, its an adoption of animal law. Institution of marriage is meaningless.
Foundation of the marriage is loyalty and section 497 was preservative of the marriage. In absence of the
above law marriage will suffer a lot. The only difference between ox and bull is of a one mitre tiny rope.
Its only the rope which makes an ox silent in nature and potential for society and in absence of which a
bull becomes violent and vagrant. Section 497 was playing the role of invisible rope for both men and
women.
Section 497 was neither fit for man nor for woman. For men it had an infringement of Rights but in the
case of women it was even worst. How could consent and connivance of a man matters to have sexual
intercourse with the wife. Its demoralizing women and her dignity. It clearly dealt with the perception of
husband as a master of women and house and wife as a speechless animal. Someone who has the
consent and connivance of her husband, before having sex with her, would not amount the charge of
adultery. Modification in this law was a much-needed step to make it more valid and effective. PIL
seeking modification in 157 years old law of adultery was a perfect move to modify such a
discriminatory law. For the same amount of an offence if man is punishable, woman should also get
punished in the similar way. Otherwise, Right to Equality which is guaranteed by constitution, carries no
importance. There should not be any discrimination in the amount of the charges based on gender. But
scrapping the law is the worst and shocking judgement. A five judges bench has shaken the beliefs of
those who believes in of marriage and loyalty. Sanctity of marriage has been devastated. Section 497 has

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been referred to old and outdated law. Laws can be outdated but morality and loyalty can never become
outdated and decriminalizing adultery is approval of immorality and treachery.
As quoted by former CJI Dipak Mishra-
If any aggrieved spouse committed suicide because of a life partners adulterous relation and evidence is
produced, it could be treated as abetment to suicide;
When one partner is involved in such a heinous act of adultery, the other partner dies every moment. But
in the eyes of law such death and mental distortion is carrying lesser value rather than the personal
choice of one spouse to have sexual relationship with the person of his choice. Law should be strict
enough to mitigate the offences and it should be life saver. One person who is going through all the
mental trauma because of an illicit affair of the spouse, cant get justice while alive but the same can be
gained after death. What is the use of such a law which cannot protect the life of a person.
Whether ancient or modern, throughout all the era the adultery was continued but it had always been
disapproved, condemned and criticized by the civilized part of the society and had never been legalised.
It was a sinful act, and person committing it, was liable to a lot of social disgrace. Till now adultery was
covered under grey shed but Supreme Courts verdict has turned that grey shed into white. Such law will
lead us towards uncivilization. It took hundreds of years for women to become empowered and
independent. Various existed laws played an important role in women empowerment. They are living
their life with dignity and independently. They are for away from below excerpts of Manu smriti-
Her father protects her in childhood, her husband protects her in youth, and her sons protect her in old
age; a woman is never fit for independence.
In India, adultery was a ground for divorce under Section 13(1) of Hindu Marriage Act 1956. As Former
CJI stated Adultery can be ground for civil wrong, a ground for divorce but not criminal offence.
Without having any idea that how many more cases of divorce are going to be increased. CJI also stated
Adultery might not be cause unhappy marriage, it could be result of an unhappy marriage.How could he
assume that its only an outcome of unhappy marriage, and not the outcome of having an instinct for
extra fun and adventure in life. As per the recent survey done on the 500 people, 40% found to be
involved in extramarital affairs, 28% were men and 12% women. While 40% said they were in an
extramarital relationship because they were craving for a change, 35% said it was because of sexual
incompatibility with spouse and 15% said it was because of stress. And that stress was not due to
theUnhappiness in marriage and with their partners. Some were pressured to get married to someone
they didnt love and that resulted in them seeking love elsewhere. Some said they did it to pass time

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when they were alone or away from their spouse, Not in a single case, one partner was responsible for
the extra marital affair or adultery of the other partner. Suddenly, after having marriage and children
people realise that they are not able to Satisfy their lust and they start seeking love and lust outside of
their marriages. And family suffers, sometimes result into divorce and in few cases, it leads to suicide of
the other partner, mostly women. And now when choice has been given by the court, the above ratio will
increase drastically. On one hand we are banning Draconian Practice of Instant Triple Talaq to curb
down the divorce on the other hand we are creating trench to bury validity of marriage by
decriminalizing adultery. If Triple Talaq is a draconian practice and deserve to be banned, adultery is no
less than that.
In India majority of women are still dependent whether socially or financially, criminalization of
adultery was the most powerful source to stop the practice of adultery by their husbands, scrapping 497
by Apex Court has stopped women to raise their voice against the malpractice of adultery. A socially,
financially disabled and illiterate women cannot opt for divorce too, hence she has no choice left with
her. This stress will lead them towards a lot of physical and mental ailments. Right to Health is
meaningless to them. Apart from divorce and suicide for women, its impact on children is more fatal.
They will get distorted from their own houses and families. Rather than the existence of parents, there
will be parent only.
They will be separated from their siblings too; their future is in absolute dark. Decriminalisation of Sec.
497 ended the fear of law to an adulterous person from doing the act. This fearlessness will be turned
them into bull-headed and their foot-print will affect not only the family and society but also the whole
Nation. Where society suffers like this, the doctrine of Directive Principles to form a Welfare State
could not be fulfilled.
In many countries, adultery is not a criminal offence and many countries have legalised prostitution too.
But we cannot allow our judicial thinking to be constricted by reference to the law as it prevails in other
countries. We have different social, cultural and economical condition and we want law as per these
parameters. Rather than competing laws from western countries, we have to build our own
jurisprudence. This Anti-Women verdict should be revised for the welfare of the Nation

Right To Death

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Article 21 of the Indian constitution is one of the most important Articles in the Indian constitution,
which accords sanctity to the human life. Article 21 casts an onerous duty on the state to preserve the
life of each person within its realm. It at the same time grants the state the power to deprive a person of
his life and liberty in accordance with the procedure established by law. Article 21 has been used by the
judiciary umpteen times to broaden the very concept of the term life so as to cover everything which
goes to constitute the life of a person. Lately a debate has been raked up in the socio-legal circles
regarding the concept of euthanasia and its validity in the Indian constitutional scheme. This paper is an
attempt to trace the evolution of the concept of euthanasia and its legality in light of the mandate of
Article 21of the Indian constitution.
Death is never the first choice, and people opt for this path only because there is none other left to take.
Euthanasia
Euthanasia is not something new or unknown to mankind. In ancient Greece and Rome, helping others
to put an end to their lives was permitted in certain situations. The term euthanasia is derived from the
Greek words “eu” and “thanatos” which means “good death” or “easy death”. It is also known as Mercy
Killing. Euthanasia literally means putting a person to painless death especially in case of incurable
suffering or when life becomes purposeless as a result of mental or physical handicap. The Law
commission defined “Euthanasia’ as the act of killing someone painlessly, especially, for relieving
suffering of a person from incurable illness.
In the popular mind, "euthanasia" conjures the image of an elderly, terminally ill, lucid patient
requesting the assistance of health carers to die now pain free rather than to die later after profound
suffering . Over the years, it has turned out to be one of the most controversial issues in law, medicine,
ethics, religion and politics. The law commission in its report on “Medical Treatment to Terminally Ill
Patients “tried to give an account of the present day scenario with respect to the terminally ill patients in
light of the recent medical advances.

It observed that:
“A hundred years ago, when medicine and medical technology had not invented the artificial methods of
keeping a terminally ill patient alive by medical treatment, including by means of ventilators and
artificial feeding, such patients were meeting their death on account of natural causes. Today, it is
accepted, a terminally ill person has a common law right to refuse modern medical procedures and allow
nature to take its own course, as was done in good old times. It is well-settled law in all countries that a

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terminally ill patient who is conscious and is competent, can take an ‘informed decision’ to die a natural
death and direct that he or she be not given medical treatment which may merely prolong life. There are
currently a large number of such patients who have reached a stage in their illness when according to
well-informed body of medical opinion; there are no chances of recovery. But modern medicine and
technology may yet enable such patients to prolong life to no purpose and during such prolongation,
patients could go through extreme pain and suffering. Several such patients prefer palliative care for
reducing pain and suffering and do not want medical treatment, which will merely prolong life or
postpone death.

The above account presents a grim picture of the terminally ill people who are living under unbearable
pain with no chance of regaining back the quality of life that they used to enjoy in the past. Such patients
are in a pitiable condition because they have lost their basic cognitive faculties, which are vital to live a
meaningful life. Many people are of the opinion that patients who are terminally ill, and who are having
no chance of recovery should be allowed the right to die as prolonging their lives merely adds to their
pain and suffering. There are some who believe that individuals should have an unqualified right to die,
while there are others who consider all forms of euthanasia to be murder or suicide and, thus, immoral.

Classification of Euthanasia
Euthanasia can be broadly be classified into two categories
(a) Active euthanasia and (b) Passive Euthanasia.
Active euthanasia means a positive merciful act to end useless sufferings and a meaningless existence. It
is an act of COMMISSION for example by giving large doses of a drug to hasten death.Passive
Euthanasia or negative euthanasiaimplies not using or discontinuing the use of extraordinary life-
sustaining measures to prolong life. This includes an act of omission, such as failure to resuscitate a
terminally ill or hopelessly incapacitated patient or severely defectively newborn infant. It involves non-
use of the measures that would probably delay death and permit natural death to occur. Similarly,
euthanasia may be categorized into Voluntary and Involuntary Euthanasia. Voluntary Euthanasia is
where the consent is taken from the patient, whereas non-voluntary euthanasia is where the consent is
unavailable. Here the individual is unable to ask for euthanasia and another person makes the decision
on his/her behalf, usually based on previously expressed wishes.

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Many arguments have been advanced by scholars, human rights philosophers and law thinkers
advocating legalization of euthanasia all over the world. These are made on the basis of moral, human
rights, and utilitarian grounds. The moral ground is that it is against morality to leave someone in severe
pain and do nothing for his/her relief. The human rights angle is that leaving a patient in severe pain
would amount to directly challenging the fundamental right of the individual i.e., the right to a dignified
life. The utilitarian principle believes in the greatest degree of happiness to the maximum number of
people. According to this, if anyone is terminally ill, lying in hospital and is in severe pain, then it would
not bring his/her family happiness and it will suffer because of his/her pain. Therefore, utilitarian
thinkers argue that an act or abstaining from an act which does not give happiness to anyone is wrong.
These views have been gaining support in the social circles triggering a debate on the question whether
right to life includes within it the right to die especially in the context of Euthanasia or Mercy Killing.

Euthanasia- Trends In Different Countries

The laws with reference to the permissibility of euthanasia vary from country to country. Most countries
have been reluctant to accommodate active euthanasia within their legal system whereas some of the
countries have taken a lead in legalizing it. The reluctance to accord legal sanctity to euthanasia stems
from the fact that many countries consider the practice of euthanasia as morally and ethically abhorrent.
The ethical considerations surrounding euthanasia in different states have influenced tremendously in
taking a legal position on the subject in the states.

However, countries like Netherland took a radical step in the year 2000 when it legalized euthanasia.
The law which was passed by an overwhelming majority of the Dutch lawmakers provides for the
addition of a special “criminal liability exclusion” clause to Article 293 and 294 of the Dutch Penal
Code that deals with the offence of homicide. By virtue of the exception, doctors are exonerated from
the commission of offences under the said Articles if they comply with the due care criteria set out in
Article 2 of the Act (Termination of Life on Request and Assisted Suicide (Review Procedures) Act
2001).

Under the Dutch law, it is now legal for a doctor to help a patient who seeks his assistance to end his
life. Similarly, Belgium became the second country to legalize active euthanasia The Belgian law sets
out conditions under which suicide can be practiced without giving doctors a license to kill. According

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to the Belgian law, patients wishing to end their own lives must be conscious when the demand is made
and repeat their request for euthanasia. They have to be under "constant and unbearable physical or
psychological pain" resulting from an accident or incurable illness. The law gives patients the right to
receive ongoing treatment with painkillers -- the authorities have to pay to ensure that poor or isolated
patients do not ask to die because they do not have money for such treatment.

One of the important safeguards provided by the Law is that every mercy killing case will have to be
filed at a special commission to decide if the doctors in charge are following the regulations. The
Belgian Law makes departure from the Dutch law when it comes to the issues of a minor patient.

Unlike the Dutch Law, the Belgian law does not permit the minor to seek assistance to die. The
Canadian law allows a person to refuse medical treatment and the medical profession accepts the ‘living
will’, but the law does not allow the doctor to actively help someone to kill himself. Australia also has a
voluntary euthanasia law, which is stately working well. In Australia, a computerized injection system is
in use to accomplish euthanasia. In US, active euthanasia is illegal barring certain States where it is
permitted. In U.K, active euthanasia is also prohibited by law.

However, with respect to passive euthanasia, the general legal position all over the world seems to be
that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal
even without legislation provided certain conditions and safeguards are maintained.

Indian Perspective
In Indian Constitution Article 21 is the repository of the Right to Life. It lays down that “no person shall
be deprived of his life and personal liberty except by procedure established by law”. However, the true
import of this constitutional provision goes beyond these words. Article 21 has received a generous
treatment at the hands of the Indian judiciary.

The Indian judiciary woke up to the all-encompassing import of right to life quite late. The change in
judicial attitude was perhaps motivated by the salutary principle that a constitutional provision must be
construed, not in a narrow and constricted sense, but in a wide and liberal manner. The courts have
repeatedly held that while arriving at the proper meaning and content of the right to life, the attempt of

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the court should always be to expand the reach and ambit of the fundamental right rather than to
attenuate its meaning and content. It is a result of this judicial approach that bundles of rights have been
carved out of Article 21 of the constitution. A grand step was taken by the court in expanding the scope
of Article 21 when it argued that life in Article 21 does not mean merely animal existence but living
with human dignity. This judicial attitude has mainly been influenced by the oft-quoted observation of
the U.S Supreme Court inMunn v Illinoisin which it was observed that

“By the term life as here used something more is meant than mere animal existence. The inhibition
against its deprivation extends to all those limbs by which life is enjoyed. The provision equally
prohibits the mutilation of the body by amputation of an arm or leg…”

The Indian Supreme court has thus given very extensive parameters to Article 21 . It has become a
source of many substantive rights and procedural safeguards to the people.
This judicial approach is epitomized by the observation of Bhagwati.J in Francis Coralie’s case wherein,
it was observed by the learned judge, that
“We think that the right to life includes the right to live with human dignity and all that does with it,
namely the bare necessities of life such as adequate nutrition, clothing and shelter over the head and
facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing
and comingling with fellow human beings”.

Article 21 now includes within its ambit the right to travel abroad, right to clean environment, right to
livelihood, right to speedy trial, right to health, etc. Now that it is well established that right to life does
not mean mere animal existence, but it includes a dignified or qualitative life. Therefore, it is argued that
every person has a life to live with at least a minimum dignity and when the state of existence falls
below even that minimum level, the person must be allowed to end such torturous existence. The
question whether the Right to Die exists in the Indian Constitution has been a source of great legal
debate. In India Article 21 of the Indian Constitution has been the central point of discussion in this
debate over euthanasia. The moot question for consideration has been whether right to life under Article
21 also includes right to die? According to M.P.Jain, if Article 21 confers on a person the right to live a
dignified life, does it also confer a right not to live if the person chooses to end his life? If so then what
is the fate of the provisions in the penal code making attempt to commit suicide illegal.

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This question has been posed before the Courts on several occasions during the past decade especially
with reference to the constitutional validity of Section 309 that makes attempt to commit suicide
punishable. One of the earlier instances of a court taking cognizance of such cases related to the
judgment of the Delhi High Court inState v Sanjay Kumar Bhatial. This perhaps was one of the first
instances where the courts in India made any reference to euthanasia.

The Division bench of the Delhi High Court while speaking through Sachar.J observed that:
"It is ironic that Section 309 IPC still continues to be on our Penal Code. ... Strange paradox that in the
age of votaries of Euthanasia, suicide should be criminally punishable. Instead of the society hanging its
head in shame that there should be such social strains that a young man (the hope of tomorrow) should
be driven to suicide compounds its inadequacy by treating the boy as a criminal. Instead of sending the
young boy to psychiatric clinic it gleefully sends him to mingle with criminals.... The continuance of
Section 309 IPC is an anachronism unworthy of a human society like ours.

In many such cases, it was argued that right to life includes within it the right to die and therefore when
a person attempts to commit suicide he is merely exercising his fundamental right to die. It was therefore
contended that as Section 309 imposes fetters on this fundamental right it might be declared as
unconstitutional. Another instance where such an argument was successfully put forward was theMaruti
Dubal’s case. In this case, the Bombay High Court held that Section 309 is unconstitutional as it violates
Article 21. It was held by the court that Article 21 includes within its ambit the right to die or to
terminate one's own life. The Honorable Supreme Court approved this interpretation given to right to
life in its decision inP.Rathinam’s case.

The judgment of the Supreme Court in Rathinam’s case came to be criticized by many as being a radical
view on the right to life. The court ruling in Rathinam’s came to be reviewed by the full bench of the
Honorable Supreme CourtinGian Kaur v State of Punjab. The main issue before the court was that if
attempt to commit suicide is not regarded as penal then what happens to someone who abets suicide
which is a punishable act under Section 309 of the Indian Penal Code. It was argued before the court that
if the principal offence of attempting to commit suicide is void as being unconstitutional then how could
its abetment be punishable. The court while overruling its judgment in Rathinam’s case held that the
significant aspect of 'sanctity of life' is also not to be overlooked. Article 21 is a provision guaranteeing

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protection of life and personal liberty and by no stretch of imagination can extinction of life' be read to
be included in protection of life'. Whatever may be the philosophy of permitting a person to extinguish
his life by committing suicide, we find it difficult to construe Article 21 to include within it the right to
die' as a part of the fundamental right guaranteed therein. 'Right to life' is a natural right embodied in
Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of right to life' . However, the court in Gain Kaur distinguished between
euthanasia and attempt to commit suicide. It was observed the honorable supreme court that

“Euthanasia is termination of life of a person who is terminally ill or in a persistent vegetative state. In
such a case death due to termination of a natural life is certain and imminent. The process of natural
death has commenced; it is only reducing the period of suffering during the process of natural death.
This not the case of extinguishing life but only of accelerating conclusion of the process of natural death
which has already begun. This may fall within the concept of right to live with human dignity up to the
end of natural life. This may include the right of a dying man to die with dignity when his life is ebbing
out. But this cannot be equated with the right to die an unnatural death curtailing the natural span of life.

Even though the court in Gian Kaur’s case referred to euthanasia, it stayed clear of making any explicit
pronouncement on its legality within the Indian Constitutional scheme. Recently the Supreme Court was
called upon to adjudicate on the question with regard to the permissibility of euthanasia within the
Indian constitutional scheme. The court had to decide whether the right to life guaranteed by Article 21
included within it the right to extinguish one’s life in case of terminally ill patients having no hope of
any recovery. This issue came up before the Honorable Supreme Court in Aruna Ramachander
Shanbaug v Union of India.

Aruna Shanbaug
On the night of 27 November 1973, Shanbaug was sexually assaulted by Sohanlal Bhartha Walmiki, a
sweeper on contract at the King Edward Memorial Hospital. Sohanlal attacked her while she was
changing clothes in the hospital basement. He choked her with a dog chain and sodomized her. The
asphyxiation cut off oxygen to her brain, resulting in brain stem contusion injury, cervical cord injury,
and cortical blindness. She was discovered with blood splattered around her at 7:45 am the next morning

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by a cleaner.

The police case was registered as a case of robbery and attempted murder because of the concealment of
anal rape by the doctors under the instructions of the Dean of KEM, Dr. Deshpande.

A few days before her death, Shanbaug was diagnosed with pneumonia. She was moved to the medical
intensive care unit (MICU) of the hospital and put on a ventilator. She died the morning of 18 May
2015.Her funeral was performed by the hospital nurses and other staff members.

Shanbaug remained in a vegetative state from 1973 until her death in 2015.

17 December 2010, the Supreme Court, while admitting the plea to end the life made by activist-
journalist Pinki Virani, sought a report on Shanbaug's medical condition from the hospital in Mumbai
and the government of Maharashtra.

On 24 January 2011, the Supreme Court of India responded to the plea for euthanasia filed by Aruna's
friend, journalist Pinki Virani, by setting up a medical panel to examine her. A three-member medical
panel was established under the Supreme Court's directive. After examining Shanbaug, the panel
concluded that she met "most of the criteria of being in a permanent vegetative state".
On 7 March 2011, the Supreme Court, in a landmark judgment, issued a set of broad guidelines
legalizing passive euthanasia in India. These guidelines for passive euthanasia— i.e. the decision to
withdraw treatment, nutrition, or water—establish that the decision to discontinue life support must be
taken by parents, spouse, or other close relatives, or in the absence of them, by a "next friend". This
decision requires approval from the concerned High Court.

In its judgment, the court declined to recognize Virani as the "next friend" of Aruna Shanbaug, and
instead treated the KEM hospital staff as the "next friend."
Since the KEM Hospital staff wished that Aruna Shanbaug be allowed to live, Virani's petition to
withdraw life support was declined. However, the court further stipulated that the KEM hospital staff,
with the approval of the Bombay High Court, had the option of withdrawing life support if they changed
their mind:

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On 25 February 2014, while hearing a PIL filed by NGO Common Cause, a three-judge bench of the
Supreme Court of India said that the prior opinion in the Aruna Shanubaug case was based on a wrong
interpretation of the Constitution Bench's opinion in

Gian Kaur v. State of Punjab.

The court also determined that the opinion was internally inconsistent because although it held that
euthanasia can be allowed only by an act of the legislature, it then proceeded to judicially establish
euthanasia guidelines. The court referred the issue to a larger Constitution Bench for resolution, writing:
Response
Following the Supreme Court decision rejecting the plea, the nursing staff at the hospital—who had
opposed the petition and had been looking after Shanbaug since she had lapsed into a vegetative state—
distributed sweets and cut a cake to celebrate what they termed her "rebirth". A senior nurse at the
hospital later said, "We have to tend to her just like a small child at home. She only keeps aging like any
of us, does not create any problems for us.

We take turns looking after her and we love to care for her. How can anybody think of taking her life?"
Pinki Virani's lawyer, Shubhangi Tulli, decided not to file an appeal, saying "the two-judge ruling was
final till the SC decided to constitute a larger bench to re-examine the issue." Pinki Virani said, "Because
of this woman who has never received justice, no other person in a similar position will have to suffer
for more than three and a half decades."

The case related to Aruna Shanbaug, a terminally ill patient who has been living in a persistent
vegetative state for the past 37 years. The plea for euthanasia was filed on behalf of Aruna by one Pinky
Virani who claimed to be her next friend. Her plea was opposed by the KEM hospital which has been
taking care of her for the past 37 years. It was argued before the court that Aruna The Honorable
Supreme Court in its judgment while permitting passive euthanasia unequivocally declared Active
Euthanasia using lethal substances or forces to kill the terminally ill patient as illegal and a crime under
Section 302, 304 of the Indian Penal Code. The bench in its judgment distinguished active and passive
euthanasia from a purely legalistic point of view. The court observed that the difference between active
and passive euthanasia is that in active euthanasia something is done to end the patient’s life while in
passive euthanasia something is not done that would have preserved the patient’s life.

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The court elaborated this proposition by observing that
“At the heart of this distinction lies a theoretical question. Why is it that the doctor who gives his patient
a lethal injection, which kills him, commits an unlawful act and indeed is guilty of murder, whereas a
doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully - and will not
do so, if he commits no breach of duty to his patient? Professor Glanville Williams has suggested (see
his Textbook of Criminal Law, 2nd ed., p. 282) that the reason is that what the doctor does when he
switches off a life support machine 'is in substance not an act but an omission to struggle, and that 'the
omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case’.

The court in its judgment dwelt in length on the ruling of the House of Lords in Airedale case. It
substantially agreed with the view expressed by the learned judges in the Airedale ‘case with regard to
the best interest doctrine. The court also tried to incorporate the safeguards given by the House Lords in
case of passive euthanasia. The court following the Airedale’s case vested the High Courts in India with
the power to take a final call on appeals for euthanasia made by the relatives or next friend of the ailing
person.

On 7 March 2018, the Supreme Court of India legalized passive euthanasia by means of the withdrawal
of life support to patients in a permanent vegetative state. The decision was made as part of the verdict
in a case involving Aruna Shanbaug, who had been in a Persistent Vegetative State (PVS) until her death
in 2015.

In March 2018, the Supreme Court of India passed a historic judgment-law permitting Passive
Euthanasia in the country. This judgment was passed in wake of Pinki Virani’s plea to the highest court
in December 2009 under the Constitutional provision of “Next Friend”. It’s a landmark law which
places the power of choice in the hands of the individual, over government, medical or religious control
which sees all suffering as “destiny”.

The Supreme Court specified two irreversible conditions to permit Passive Euthanasia Law in its 2011
Law: (I) The brain-dead for whom the ventilator can be switched off

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(II) Those in a Persistent Vegetative State (PVS) for whom the feed can be tapered out and pain-
managing palliatives be added, according to laid-down international specifications.

The same judgment-law also asked for the scrapping of 309, the code which penalizes those who survive
suicide attempts. In December 2014, the government of India declared its intention to do so.

However, on 25 February 2014, a three-judge bench of Supreme Court of India had termed the judgment
in the Aruna Shanbaug case to be 'inconsistent in itself' and has referred the issue of euthanasia to its
five-judge Constitution bench.

And on December 23, 2014, Government of India endorsed and re-validated the Passive Euthanasia
judgement-law in a Press Release, after stating in the Rajya Sabha as follows: that The Hon'ble Supreme
Court of India in its judgment dated 7.3.2011 [WP (Criminal) No. 115 of 2009], while dismissing the
plea for mercy killing in a particular case, laid down comprehensive guidelines to process cases relating
to passive euthanasia.

Thereafter, the matter of mercy killing was examined in consultation with the Ministry of Law and
Justice and it has been decided that since the Hon'ble Supreme Court has already laid down the
guidelines, these should be followed and treated as law in such cases. At present, there is no proposal to
enact legislation on this subject and the judgment of the Hon'ble Supreme Court is binding on all. The
Health Minister, J P Nadda stated this in a written reply in the Rajya Sabha.

The high court rejected active euthanasia by means of lethal injection. In the absence of a law regulating
euthanasia in India, the court stated that its decision becomes the law of the land until the Indian
parliament enacts a suitable law. Active euthanasia, including the administration of lethal compounds
for the purpose of ending life, is still illegal in India, and in most countries.

In 2018 the Supreme Court of India declared through a five-judge Constitution bench that, if strict
guidelines are followed, the government would honor “living wills “allowing consenting patients to be
passively euthanized if the patient suffers from a terminal illness or is in a vegetative state.

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Guidelines
The following guidelines were issued by the Honorable Supreme Court
(1)When such an application is filed the Chief Justice of the High Court should forthwith constitute a
Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench
should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after
consulting such medical authorities/medical practitioners as it may deem fit. Preferably, one of the three
doctors should be a neurologist; one should be a psychiatrist, and the third a physician. For this purpose,
a panel of doctors in every city may be prepared by the High Court in consultation with the State
Government/Union Territory and their fees for this purpose may be fixed.

(2) The committee of three doctors nominated by the Bench should carefully examine the patient and
also consult the record of the patient, as well as taking the views of the hospital staff and submit its
report to the High Court Bench.

(3) Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue
notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their
absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as
it is available. After hearing them, the High Court bench should give its verdict. The above procedure
should be followed all over India until Parliament makes legislation on this subject.

(4) The High Court should give its decision speedily at the earliest, since delay in the matter may result
in causing great mental agony to the relatives and persons close to the patient. The High Court should
give its decision assigning specific reasons in accordance with the principle of ‘best interest of the
patient’ laid down by the House of Lords in Airedale’s case (supra). The views of the near relatives and
committee of doctors should be given due weight by the High Court before pronouncing a final verdict
which shall not be summary in nature.

Conclusion
The judgment in Shanbaug’s case was met with a mixed response while on the one hand many
welcomed it on the basic premise that there are limits to human suffering, especially when there is no
light at the end of the tunnel. It is argued that a terminally ill patient cannot be kept on life support with

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the hope that, in the near future, there may be developments in medicine, which may save him or her.
This approach is justified on the ground that quality of life is as important as life itself. However, on the
other side of the aisle there are people who argue that if euthanasia is legalized, it could be misused.
Nevertheless, many contests this contention. It is argued this fear of misuse holds true with reference to
any other existing laws also, so why to single out this law only.

They thus suggest that stringent safeguards avoid any kind of misuse whereas others suggest that
euthanasia should be allowed only when no amount of palliative care can help the patient recover. In
spite of these convincing arguments, genuine concerns have been raised because of the growing
evidence that access to healthcare is shrinking; a circumstance that will only mean a large number of
those who ought to be in hospital under supervised care will be in homes with few resources for end-of-
life care and, clearly, outside the reach of the medical system. These fears are not unfounded especially
with reference to the Western countries where the cost of medical care is severely expensive. However,
the Belgian law on Euthanasia incorporates a provision that makes it obligatory on the state to provide
terminally ill patients with painkillers so that the patients do not end their lives because of financial
constraints in procuring medicine. With reference to poor and developing countries, such fears cannot be
allayed easily. In India it is it is argued that if denying end-of-life treatment and care were to be
considered passive euthanasia, then as a country we have certainly been practicing it for long. It is a
result of this state of affairs that people are prompted to remark that without expanding access to
healthcare and providing end-of-life and palliative funded care, legislating to allow euthanasia is
something of a mockery.

An apprehension has been raised that Passive euthanasia will cover infants and unborn babies by citing
the example of the Netherlands, where all these acts were legalized. It is contended that because of
legalization of Euthanasia, Netherlands has lost more than one-fourth of its population and it has badly
affected unborn babies with a high fall in birthrate in that country. For some there is an important lesson
to every country that is considering following this proponent country and legalizing euthanasia. They
argue that Euthanasia is impracticable in India given its susceptibility, which makes it prone to misuse.

It is submitted that though the fears expressed with regard to the misuse of euthanasia are genuine such
fears largely relate to active euthanasia. In India unlike Netherlands and Belgium, active euthanasia

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continues to be illegal and looking at the court pronouncements of the past decade it would remain to be
so. Therefore the question of its misuse in India does not arise with respect to the fears about the misuse
of passive euthanasia, such fears stand largely addressed following the directions issued by the
Honorable Supreme Court in Shanbaug’s case. These directions are a sufficient safeguard to act as a
check against any misuse. However, it would be prudent for the government of India to come up with a
comprehensive legislation on permitting passive euthanasia.

It has been argued that permitting euthanasia could diminish respect for life. Concerns have been raised
that allowing euthanasia for terminally ill individuals who request it, could result in a situation where all
terminally ill individuals would feel pressurized into availing of euthanasia. There are fears that such
individuals might begin to view themselves as a burden on their family, friends and society or as a strain
on limited healthcare resources. Opponents of euthanasia also contend that permitting individuals to end
their lives may lead to a situation where certain groups within society e.g. the terminally ill, severely
disabled individuals or the elderly would be euthanized as a rule . However, proponents of euthanasia
argue that legalizing the practice would not devalue life or result in pressure being put on individuals to
end their lives but would allow those with no hope of recovery to die with dignity and without
unnecessary suffering. They state that it would be imprudent not to implement legislation because this
would drive euthanasia underground where it would be unregulated. They also raise concerns that the
current legal vacuum has led to people travelling abroad (while they are still physically able to) to avail
of euthanasia/assisted suicide before they feel they are ready to die.

Triple Talaq And Its Essential In Islam

Triple Talaq a debatable issue nowadays and also now the Government of India has introduced a bill in
parliament which will criminalize the giving of Triple Talaq that is given instantly Talaq three times
without observing the rules prescribed by holy Quran for giving Talaq and recently honorable supreme
court of India struck downed this type of practice because it is only an innovation in Islam it has no base

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in Islam because the Holy Quran has clearly laid down the procedure how and when to pronounce Talaq
but still this type of Talaq is prevalent in our Muslim community and now government of India passed
bill that is the Muslim women (protection of rights on marriage bill2018) for criminalizing this instant
Triple Talaq but criminalizing this was not necessary if Muslims could have read the Quran which has
laid down procedure for giving Talaq.
Surah no 65 surah Talaq verse1

"O Prophet! When you divorce women

Divorce them at their prescribed periods and count accurately their prescribed periods and fear Allah
your Lord and turn them not out of their houses nor shall they themselves leave except in case they are
guilty of some open lewdness.
Those are limits set by Allah and anyone who transgresses the limits of Allah does verily wrong his own
soul though knowest not if perchance Allah will bring about there after some new situation. Surah Al
Baqra Ayat 229 which reads as:
Divorce is twice. Then either keep her in an acceptable manner or release her with good treatment. And
it is not lawful for you to take anything of what you have given them unless both fear that they will not
be able to keep within the limits of Allah. But if you fear that they will not keep within the limits of
Allah then there is no blame upon either of them concerning that by which she ransoms herself. These
are the limits of Allah so do not transgress them. And whoever transgresses the limits of Allah it is those
who are the wrongdoers.
It is also mentioned in Surah no 2 AYAT 226-227 Those who intend to divorce their wives shall wait
four months and if they change their minds and reconcile then God is a forgiver, merciful and If they go
through with the divorce then God is hearer and the knower.
Also in the same sura verse228
And the divorced women must wait for three menstrual courses... and their husbands are fully entitled to
take them back (as their wives) during this waiting period if they desire reconciliation. Usmani also
quotes from Hafiz Ibn Hajar'sFatah al-Barito the effect that many eminent jurists held that if one
pronounces three divorces, only one take place.
It is also mentioned Sahi Muslimkitabul divorce hades no 3491 Reported by Abdullah ibn Abbas that in
the prophets Mohammad saw lifetime and during caliphate of Abu Bakr and also during first two years
of Umar ibn khitabs caliphate Triple Talaq was counted as one Talaq only but that Umar [ra] then made

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three times binding upon his people so that they learned the consequences of their hasty actions Also in
hades no 393theAbu al-Sahba' said to Ibn 'Abbas (RA). Enlighten us with your information whether the
three divorces pronounced at one and the same time were not treated as one during the lifetime of
Allah's Messenger (may peace be upon him) and Abu Bakr. He said it was in fact so, but when during
the caliphate of 'Umar (Allah be pleased with him) people began to pronounce divorce frequently he
allowed them to do so to treat pronouncements of three divorces in a single breath as one. Also in the
Musnad Ahmad and ibn Hanbal page 28-29
Rukaya ibn Abu Yazid ra said Talaq to his wife three times in one sitting and then regretted his action
when he told prophet saw how he divorced his wife prophet Mohammad saw observed all three counts
as only once and said if u want u can revoke it. Imran Ibn Hussain was asked about a person who
divorced his wife by Triple Talaq in a single session. He said that the person had disobeyed his Lord and
his wife had become prohibited to him.
These instructive verses do not require any interpretative exercise and they are clear and unambiguous
as far as Talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony.
However, in extremely unavoidable situations Talaq is permissible. But an attempt for reconciliation and
if it succeeds then revocation are the Quranic essential steps before Talaq attains finality.
In Triple Talaq this door is closed hence Triple Talaq is against the basic tenets of the Holy Quran. But
Muslims don’t take in to account these qur’anic verses and hadess which prohibit this innovated Talaq
and now same situation has been arised before us which was arised during the pious rule of Hazrat Umer
(ra) people were misusing this Talaq so he ordered that instant Triple Talaq will we treated as three
instead of one .
As in India Muslim are not taking care or not following the rules, regulations and procedure which are
laid down in holy Quran that is why criminalizing this instant Triple Talaq is necessary so that Muslims
should not practice such things which has no base in Islam and with which they violate fundamental
rights of women’s by depriving them of their fundamental rights granted them under Article 14 of
constitution and the government of India has a mandate given by the constitution under Article 15 to
safeguard the fundamental rights of women’s and end the discrimination made with women on the basis
of religion and to serve this mandate it was necessary to pass a law which will deter the Muslim men’s
from using women’s as chattels.

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There is an apprehension that making law upon instant Triple Talaq is interference in religion and
against freedom of religion but the introduction of this bill is not against Islam nor it is interference in
freedom of religion because what has been criminalized is no were in the holy Quran and whatever is
not mentioned in Quran and hades can never be treated as part of Islam because Quran and hades are
two important sources of Muslim law and Muslim community has to fallow only what is permitted by
hades and Quran and this Triple Talaq which was introduced by Hazrat Umer (RA) after two years of
pious rule only to prevent misuse of it but unfortunately what was introduced for benefit of women is
now again used against them so it is essential and necessary to criminalize this instant Triple Talaq.
Because the whole procedure regarding giving the Talaq is mentioned in the holy Quran when Muslims
men’s are using this provision against the females.
And it is our fundamental duty provided under Articele 51 A part IV of the constitution to denounce any
practice derogatory to the dignity of women.
And it becomes necessary to make a law which will safeguard the rights of Muslim women and prohibit
this type of Talaq by making law upon it. As the same type of reasons were responsible when this was
instant Triple which was treated as one but when people at that time misused this Triple Talaq and as a
mark of punishment it was declared that it will have an effect of three and will be valid but now this is
also misused which was introduced for the protection of women is now used against them and making
law upon it which make it penal offence was necessary and need of hour because when Muslims don’t
give up this innovated practice of Triple Talaq due to fear of Allah. Now they may give up this practice
by making this law which will help Muslims from committing sin and going against the teaching of
Quran and Sunnah.
Muslim Divorce In India: An Analysis of Triple Talaq Bill of 2018

The word "divorce" is well-known all around the globe and the concept of dissolution of marriage is
found in every religion and language. Marriage, according to the concept of Islam is an alliance that has
the nature of a social contract and can be put to an end when it fails to fulfill it's purpose. Islam has a
practical and realistic outlook on all human affairs and as a result of that it has recognized divorce but
only as a necessary evil. Thus, resort to divorce must be taken only in inevitable circumstances. No one
can refuse that at times such circumstances arise that makes it almost impossible for the couple to pull
together and live peacefully and happily in their conjugal home. And in such situations, it is better to

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part ways rather than dragging on with the bitter, miserable and weak reality in a partnership that is
forced. It is more conducive for the couple to part ways with good will and grace.

Talaq, Khula, Mubarat are a few methods of dissolving a Muslim marriage.

Triple Talaq was recognized by Sunni Muslims and unfortunately it gained prevalence in the entire
Muslim society of India.
Holding it to be a form of divorce is not simple. It is problematic and complex. This method of
dissolution created many socio-legal issues in the society. Among all the rules and regulations of the
Muslim Personal Law Board that have been criticized and protested against adversely, Triple Talaq has
been on top. It is an extremely sensitive issue that has touched the lives of Muslim women. This process
developed through various stages of history and if we go back to the controversies that cropped up after
every few days with every case being filed in the courts, show that it was a method widely resorted to.

Seeing through what was the social aspect of Triple Talaq, it must be borne in mind that the society of
Indian Muslims in the present day were very far from the true Islamic teachings, principles and values.
In simple terms, it can be said that Islam and Muslims are two different concepts that are far from each
other.
Many Muslim sects have rightly waived off the effectiveness of Triple Talaq as an irrevocable form of
divorce. It's rigidity has been put to an end. They have made the law of three divorces altogether amount
to one revocable divorce. The courts started departing from their old approaches that were rigid and are
inclining towards the views and approaches that are progressive. Hence, the courts are resorting to the
Quranic way of marriage dissolution.

In recent years, rights of women have been ameliorating by advanced interpretations of Muslim Law by
the judiciary. These verdicts are markers that serve to support the rights of Muslim women.
After a long battle of cases like, Shah Bano (1985), Danial Latifi (2001), Shamim Ara (2002) and finally
Shayra Bano (2016), the Indian Government formulated a Bill known as The Muslim Women
(Protection of Rights on Marriage) Bill, 2018 on December 28, 2017. The Bill made Talaq-ul-Biddat or
Triple Talaq in any form, spoken, in writing or by electronic means such as email, SMS and instant
messengers illegal and void.
The prominent features of the Bill are:

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1. Declaration of Talaq-ul-Biddat to be void and illegal
2. Punishment upto 3 years and fine for resorting to it
3. Subsistence allowance to protect the rights of married Muslim women from husband for herself and
dependent children. Amount to be determined by the Magistrate.
4. Custody of minor children shall be granted to the woman
5. Offences under this Act cognisable and non-bailable.

Frailty of the Bill:

1. Criminalisation of the practice- Bill ends up criminalising a law since the concept of marriage is of
civil nature.
2. Discriminatory in nature- Muslim men can be prosecuted even without agreement of the wife, due to
declaration of illegality. Three year jail term for the husband particularly when in no other religion is
there such inclement punishment for uttering three words.
3. Removal of judicial oversight-Making the offence cognisable, the police have the authority of
arresting the husband without leave of the court.
4. Custody and allowance- Section 3 declares talaq to be void implying that it cannot result in divorce,
yet the Bill goes on to discuss post-divorce matters. Since talaq has been declared illegally void, the
husband-wife relationship still persists.
5. Virtual shutting of the doors on any possibility of reconciliation.
The Islamic policy never meant to confer an absolute authority of talaq upon a husband to be misused by
him. Unfortunately, this unrestricted power was always misinterpreted and gravely distorted and the
actual guidelines of Islam for it, was flouted by the society as well as the courts. Islam leans in the
favour of subsistence and saving the marital tie and not on divorce and separation. The main motive was
and still is protecting the women who were victims of this weapon of Triple Talaq in the hands of
husband's to escape their obligations.
There can be no doubt that Triple Talaq was a wicked and reprehensible act both in law and theology. It
has been asserted in various verses of the Quran and traditions by Prophet Muhammad (PBUH).
It was never a part of Muslim Law and can never be. Quran clearly illuminates the method of dissolution
of nuptial ties, thus only that method must be resorted to.
References:

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http://www.swaniti.com/wp-content/uploads/2018/08/Brief-Note-on-Muslim-Women-Bill-2017
Swaniti-Initiative.pdf
http://www.nationalheraldindia.com/india/triple-talaq
http://www.livelaw.in/need-reconsideration-triple-talaq-bill/
http://www.thehindu.com/opinion/op-ed/a-very-flawed-law/article22288659.ece
https://www.academia.edu/4515089/Position_of_Triple_Divorce_under_Muslim_Law
Law Article in India

Journey to the Triple Talaq Verdict

By AliNaqvi | Views 2975
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The Supreme court in a Landmark verdict of 22nd August 2017 struck down the practice of Triple
Talaq. A constitutional bench of five judges, belonging to different faiths Hinduism, Christianity, Islam,
Sikhism, and Zoroastrianism ruled by a 3:2 majority that there was no constitutional protection for
Triple Talaq.

I was really happy when I heard this decision. However, on television I saw one of the Muslim woman
saying that, it is a matter of Muslim community, and Supreme Court and the Government should not
interfere in this. With due respect towards that woman I would disagree with her because many of the
Muslim divorce cases reach the court of law to seek justice, so in this situation it is the duty of the court
of law to step into this matter and give judgment.

One of the person on the news channel even mentioned that Triple Talaq was a good escape door for
Muslim woman who were suffering under their husbands. However, according to the survey it was more
of an escape door for husbands.
Why I agree with the decision? Because as a Muslim and also as a Student of Law I know that Triple
Talaq is something which is completely against to what is mentioned in Quran.
According to Quran, the process of divorce involves�Arbitration, Mediation and Reconciliation�by
mediators appointed by both sides who must explore the possibility of reconciliation.
According to Islam, of all the lawful acts, the most detestable to God is divorce.

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Indian society is going through a process of evolution, and as a law student I am happy to see that some
major decisions by our Apex court has been taken towards our society(especially in the month of
September 2018) coincidentally after the time I have become a law student, this really makes me feel
very lucky.
I still remember as a kid I used to watch a T.V. show with my parents at the tme of Dinner (yes, I know
you should not watch television while eating). The name of that T.V. show was ��Heena�� and the
husband of Heena in that show gave her Triple Talaq and I asked my mother, Mom is that the way to
give talaq? and she used to just smile at my innocence and answer, ��Yes�� without giving me any
explanation, considering my age. However I was never scared for my Mother because I always knew
that my Father is an amazing person who didn��t even ask my Mother to change her surname after
marriage.

However I still believe that there are many other issues of which women are a much more frequent
victim and it needs to be sorted out as soon as possible because a women gets raped in India in every 30
minutes.

All about the Sabrimala Temple

The Apex Court in its recent verdict regarding the Sabarimala Temple issue has lifted the ban regarding
the entry of menstruating women from age 10 to 50. All the females irrespective of their age can now
enter the temple. A constitutional bench of 5 judges comprising of the Chief Justice of India Dipak
Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra has put an end to
the centuries old tradition by 4:1 majority by proclaiming the practice discriminatory in nature. The
Sabarimala Temple has turned into a battleground and the controversies are highlighting the religious
fault lines. The issue altogether has taken a political twist as well.
The practice of restricting the women’s of age group 10-50 to enter the temple was challenged by the
petitioner on the ground that it was violation of Article 14, 15 and 25 of the Indian Constitution.

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Article- 14 manifestly enshrines the principle of equality and parity and makes it clear that every person
is equal in the eyes of law implying the absence of any special privilege in favour of any individual and
there should be equal protection of law implying equal treatment in equal circumstances. Similarly,
Article -15 prohibits discrimination on the ground of religion, gender etc. and Article -25 declare that all
the citizen of India has freedom to propagate, profess and practice any religion subject to some
restrictions. So here the question arises as to why females are being physically and mentally harassed
from the centuries by persistently making them realize that they are inferior beings and weaker than the
so called males.
In my opinion the practice of restricting the women’s of age group 10-50 to enter the Sabarimala temple
is not only illegal as well as nonsensical because there can be chances when a female starts menstruating
before 9 years and there can be chances when a women menstruate after 50 years of her age. Just
because a woman bleeds she is prohibited from entering temple giving it a name of religion. I don’t get
concept that when people can worship a goddess for years and does ‘not cease worshiping her then why
do they stop women’s from worshiping just because she is on her period. They consider women’s
impure during that time, I have seen many women’s they don’t even enter kitchen during those days just
because of the taboo attached. If we read our pious religious books such as BHAGWAT GEETA or
THE RAMAYANA nothing of such sort is written in these books with reference to a period undergoing
women can’t worship the God or the deity does ‘not want to worshipped by such women. For God what
matters is the feelings & faith not the gender, caste, religion etc.
Now I would to draw your attention to on the arguments put forth by the defense council that the Deity
of the Sabarimala Temple is a CELIBAT Deity that is why to respect him or to respect his celibacy entry
of women from age 10-50 is banned . Now the question arises how can it be possible that the celibacy of
the deity if effected by the women of age of 10-50 and why not by the women’s of all age group. I guess
the question of celibacy of the Deity should not come forth in deciding the entry of the women’s in the
Temple as he is the god and god is not expected to do mistakes like humans. He has achieved that level ,
he should not be effected by the entry of the women’s in the temple.

I’m glad the Apex court has lifted the ban upon the entry of the women’s and I highly support the
verdict of the honorable Supreme Court where as many person has presented the dissenting opinion just
as Justice Indu Malhotra and the Prime Minister Mr. Narendra Modi.
Sabrimala - Prejudices, Misconceptions and Ignorance

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By Akritityagi30 | Views 5117
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I am bewildered by the intensity of reactions that media and political agendas can extract from a person.
Lately it is because of the Sabarimala temple issue. Our Supreme Court has given a verdict on
“unrestricted entry for all regardless of the gender or age or reproductive health”, citing Women’s rights
and gender discrimination against Hindu women, feeling noble to have attempted to establish equality
among Hindu men and women.

Legally, the doors of the Ayyappan temple have been thrown open for women but that is the least of
their problems. Devotees, believing their culture and tradition is being interfered with are widely
protesting all over the state of Kerala and aren’t allowing the women to enter. The women meanwhile,
all over the country, believing it to be the hour of equality, have suddenly woken up from their slumber.
These females, Hindu, Non-Hindu alike are partaking to enter the temple wherein strangely the question
of being an actual devotee is irrelevant. There is a mass hysteria spread and every menstruating woman
suddenly believes that the only way to prove their purity during “those five days” is to enter the
Ayyappan Shrine.

Unfortunately, this is due to deep routed insecurities and a reaction to centuries of prejudice coupled by
a lack of information and going with the public hearsay.
Looking at where the whole menstruation issue began, we need to understand that during the olden
times, there were no proper sanitation facilities or ways to appropriately handle the bleeding and that led
to unhygienic conditions. Neither were there any medications, sufficient to help control the physical
discomfort. So naturally, the women were advised to take rest, to not work in the kitchen or go out to the
temple as the contamination might lead to diseases. As the traditions pass down from generation to
generation they are often modified to fit in with the prevailing times and norms, often by the ones that
hold power; hence most of the traditions in our country have a patriarchal trace to them.

This as a result has led to a situation where in such norms, which were devised for the benefit of the
women, have now become a reason for bias, to the extent that the females are termed as impure. There is
absolutely no reason to follow these in today’s times and yet somehow the practice has been continued
and the women, even the educated ones are often too embarrassed to question it and believe their own

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selves to be tainted. It is perfectly alright to travel in the crowded metros, attend a seasonal sale on a
weekend or even go out for a Saturday night at the “it” place, but somehow going to a temple will
contaminate the area.

The word “menstruation” is a taboo which is spoken about in hushed whispers behind closed doors
among females. Men shy away from the topic and it is considered embarrassing and uncomfortable so
much so as to even mention it in front of the male gender. This attitude of “something to hide” has lead
to many superstitions about a natural bodily function which have no scientific base. The lack of open
discussion has made it difficult to separate fact from fiction and therefore the women just take it as it is
with a submissive attitude.

All these centuries old pent up emotions exist and here comes the perfect gift wrapped platform to take it
out on. The apex judicial power recognizing this inequality and removing the age old irrelevant
patriarchal misogynist rule sounds marvellous; but did we even stop to ponder upon the sudden political
empathy in the menstrual rights of a woman, who before today had turned a blind eye to the
phenomenon, treating it as non-existent? Did we bother to check our facts and perhaps read up on the
deity we so wish to worship?
Hinduism is a religion of many deities and it is fascinating that they each have their own background,
coming together under the big umbrella of the religion harmoniously. The tale behind Sabarimala temple
is that Lord Ayyappan was worshipped as a ‘Naishtika Bramhachari’ or eternally celibate. The legend
has it that Lord Ayyappan released a beautiful woman from her demon curse and the woman,
Malikapurathamma wanted to marry him. Lord Ayyapan refused as he wanted to answer to the prayer of
his devotees and so out of respect for Malikapurathamma, he does not receive any menstruating women
so as to remain eternally celibate.

The Sabarimala issue does not relate to the fact that women are impure so they can’t enter the temple, as
the precedence doesn’t say anything about those particular five days. The simple fact in this case is that
the women in that particular age group are capable of creating life, and the deity being celibate, chose
not to entertain such devotees. Some might say that this practice was fabricated by a patriarchal society,
and perhaps it was. But that’s a belief and so is even the existence of Lord Ayyappan. He is stemmed out
of convictions and his background and his nature are all such so how can we conclude that one must

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respect the belief of Lord Ayyappan’s existence and shun out all the other faiths with regard to his
creation.
I am against the patriarchal society, and eschew all possible superstitions, encouraging people to do the
same. It is true that there exist misconceptions regarding the purity of women during their menstruation
period and they must take a firm stand against all these beliefs which are detrimental to them but this
issue isn’t the place to voice those views. We must realise that there is a logical reason behind this
particular belief, one that must be respected for the sake of the devotees which are close to two crore in
number.
Although fraught with misconceptions, the Sabarimala issue has at least led Indians to openly use the
secret taboo word and has also ignited this attitude of “my period is natural” within the women, making
them question their rigid beliefs. The society must continue with this awakening but needs to attribute
the protest against beliefs of impurity and other forms of discrimination, not violating a particular deity’s
beliefs.
Though legally, the women have no restrictions, it is the deep routed beliefs and norms coupled by the
actual conviction of being impure that do not allow them to enter any temple during their menstruation
period. These embedded beliefs are to be broken free from, preventing them from being passed down to
the next generation and thereby abolishing the prejudice.

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