ADULTERY UNDER INDIAN PENAL CODE: GENDER JUSTICE OR GENDER INJUSTICE

Picture Courtesy: http://www.thedivorceguy.com/wordpress/wp-content/uploads/adultery.jpg

This article was written by Bhavangi Agarwal, a student of IMS Unison University.

INTRODUCTION

Adultery in India is a criminal offence provided under section 497 of Indian Penal Code, 1860. The term ‘adultery’ has derived from the Latin term ‘adulterium’ where ‘ad’ means ‘towards’ and ‘alter’ means ‘other’. At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse.Generally, adultery refers to a consensual sexual relationship between a married person and a person of other sex, who is not the spouse of the married person[1]. However, it is not necessary that the other person is a married person[2]. The offence is committed only by a man who has sexual intercourse with the wife of another man without his consent.

Adultery is an offence which is committed by a third person against a husband in respect of his wife and of which man can alone be held liable for the offence[3]. Adultery is considered to be an invasion to the right of the husband over his married wife[4].Section 497 of Indian Penal Code expressly provides that the law of adultery is not applicable on a woman andalso the woman cannot be held liable for abetment of the same.

The main object of the law is to inflict punishment to those who interferes with the sacred relation of marriage, and the legislature too considers it to be an offence when one interferes in thematrimonial home. The law basically provides that the offence of adultery is committed only by men, who have sex with the wife of another man without his consent and women cannot be punished, even as an abettor, as it is commonly accepted that it is the man who is the abettor and not the woman.

The framers of the code did not include adultery as a crime; it was only after the recommendation of Second Law Commission, it was added to the code[5]. It is commonly accepted that it is the man who is the seducer and not the woman, it is considered as an anti-social and illegal act[6].The redundancy of the adultery law in India in the light of personal laws and changing social dimensions is suggestive of amending the law in this context otherwise it would lead to interfere with the most sacred relation of marriage.

INGREDIENTS

To constitute the offence of adultery, following ingredients must be established:

• There must be sexual intercourse with the consent of the wife
• The penetration must be sufficient to constitute sexual intercourse necessary to the offence[7]
• Knowledge and reasonable belief that the woman is married to another man and that marriage should be lawful
• The husband if the woman had not consented or connived for sex with his wife[8]
• The husband has complained about sexual intercourse[9]

ISSUES

The identified research issues are:

• Why the code only brought man in its ambit?
• Why wife is not guilty of adultery?
• Constitutional validity of section 497 IPC
• De-criminalization of adultery
• Amendment of section 497 of IPC is the crying need of hour

WIFE NOT GUILTY OF ADULTERY?

The offence of adultery is committed by a man who has sexual intercourse with the wife of another man and without the latter consent. The wife is not punishable for being an adulteress, or even as an abettor of the offence, despite being a consent party to the crime. One of the essential ingredient of the section, which states that the absence of the consent of the husband is needed to constitute the act prima facie shows that the section is not gender neutral.The gender neutrality of the section has been in controversy from a long period.

 The constitutional validity of the section has been challenged on the grounds that it violates the fundamental rights of a man under article 14 of Indian Constitution which states that “the state shall not deny to any person equality before law and equal protection of the laws within the territory of India” and that this section does not come under the purview of saving clause under article 15(3) of Indian Constitution.

Also, the section does not provide any remedy to a woman whose husband has committed adultery with another woman, which is also a violation of gender neutrality clause provided in Constitution. It has been recommended by 42^nd report of Law Commission of India[10] and 2003 report of Malimath Committee, for the amendment, but the law stands still date.

In this context the article tries to analyse whether the section is actually violation of Indian Constitution, or there is a need to neutralize the section or to make adultery a civil wrong rather than criminal wrong or not to make adultery as an offence.

JUDICIAL APPROACH

The first important discussion regarding the constitutional validity of the section was held in the case of Yusuf Abdul Aziz v. State of Bombay & Hussein Bhoy Lalijee[11]. In this case, section 497 of IPC was challenged to be ultra vires the article 14 & 15 of Constitution of India. The Supreme Court held that article 14 is a general provision and should be read with the other provision which sets out exceptions to fundamental rights. Sex is a sound classification and article 15(3) provides for the exceptions to the women and children.

Though the petitioners argued that this clause is made only for the benefits of the women and not for giving license of the women and not for giving license for committing or abetting crime, however, the court held that they cannot see any restriction as such; nor they agree that the section equivalent to a license to commit the offence of which punishment has been prohibited. The court finally held that article 14 and 15 when “read together validate the impugned clause in section 497 of IPC”.

In the case of Sowmithri Vishnu v. Union of India[12], the Supreme Court held that the section held that the section 497 did not violate article 14 or 15 of Indian Constitution on the following grounds:

• Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. The Supreme Court considered this to be a policy of law and while defining the offence of adultery if the offence is restricted to men is not a violation of any constitutional provision.
• Section 497 does not confer upon any right on the wife to sue the husband to sue the husband who had committed adultery with another woman. The court said the law is that woman who are involved in sexual relationship outside marriage is not the instigator of crime, but is a victim and legislature considered as a crime against the sanctity of matrimonial home, and generally considered crime committed by man. The process of law and definition itself speaks of who has the right to prosecute whom.
• Section 497 does not take in cases where husband has sexual relations with an un-married woman; with the result that husbands have, as it were, a free licence under the law to have extra-marital relationship with un-married women. The court said that the law does not give freedom to men to have illicit relations with un-married women, it only made a specific kind of marital relation as an offence which it considered to be the most seen and common. The husband can be booked under civil procedure by wife foe separation. It is for the law makers to reform the penal law as per modern times and it does not offend article 14 or 15 of Constitution of India.

In the case of V. Revathi v. Union of India[13], the constitutional validity of section 198(1) read with section 198(2) of Criminal Procedure Code, 1973 that it just permits the spouse of the adulteress to sue the miscreant however does not allow the wife of the adulterer to do as such. The court said that the law does not permit both of the companions to indict one another under criminal law, a spouse is not allowed on the grounds that the wife is not  treated a wrong doer in the eyes of law. The wife is not allowed as section 198(1) read with section 198(2) does not allow her to do as such. Also, there is “reverse discrimination” for ladies and there is no discrimination against women so far as she is not permitted to sue her own spouse.

CRITICISM OF LAW

• VIOLATES ARTICLE 14 OF INDIAN CONSTITUTION

The section 497 of IPC which deals with adultery is gender biased mainly on the grounds that it does not allow the wife to prosecute the woman with whom her husband has adultered.However it allows the husband to prosecute the man who has adultery with his wife. Generally, the law has considered woman to be a sufferer not as the author of the offence[14]. The contention of the court is that the community punishes the “outsider” that breaks the wedding and events the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. However, the court misses out the point that the wife has no relief in criminal law though the same provision is given to the husband and in a case where the woman is unmarried the woman cannot be prosecuted altogether. This can be viewed as a violation of the principle of natural justice[15].

• SECTION 497 DOES NOT COME UNDER THE PURVIEW OF ARTICLE 15(3)

The framers of constitution believed that in the middle of the 20^th C no one would discriminate on the grounds of sex[16]. Yet, it is clearly observed that the legislature is making discrimination on the basis of sex on the pretext of giving ‘protective discrimination’ to the women. The special treatment given to the women under article 15(3) should be restricted to such cases which must be related to some features or disability which are so peculiar that it differentiate women from men as a class. The court said that an argument like making both man and woman held liable for adultery is not permissible as this is the policy of law. The underlying law at the present situation considers only man as offender; the women are incapable of committing the offence of adultery.The section 497 of IPC is nothing but violate equality clause under Indian Constitution.

COMMITTEE REPORT AND SUGGESTIONS FOR LAW REFORMS

The Law Commission of India in its 42^nd report suggested that section 497 should not be removed from the code, but it recommended that both the man and should be made guilty as there is no valid justification “for not treating guilty pair alike” and also called down the maximum punishment from five years to two years imprisonment as the existing punishment is “unreal and not call for in any circumstances”[17]. The recommended section is as follows:

“If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”[18].

The Indian Penal Code (Amendment) Bill, 1978 provided for amendment of the section 497, however it was not passed by the legislature. Clause 199 of the draft provided for[19]:

“Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to believe to be the wife or husband as the case may be, of another person, such sexual intercourse not amounting to the offence of rape, commits 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”.

The draft bill differs from the suggestion of the 42d Law Commission Report in two ways; the draft provided for punishment of the adulator irrespective of the gender and has retained the maximum punishment for the offence up to five years.

In 2003, Malimath Committee on reforms of the criminal justice system submitted its report, which suggests inclusion of women too as offenders under section 497 IPC and it should be recast as “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery”[20]. It further states that the object of the section is to preserve the sanctity of marriage and that society abhors the marital infidelity. Therefore, there is no reason for not meeting out similar treatment to the wife who has sexual intercourse with a man (outside her husband).

The National Commission for Women, a statutory body for women in the Indian Union established under specific provisions of the Indian Constitution, was against the idea of inclusion of wife, and making the offence only civil wrong. The suggestion is absolutely biased as it is towards women, in adultery still as a crime, opposite to all the discrimination that has been dealt till here, the commission says that irrespective of whether a husband can sue the wife or not, the wife should be able to prosecute the adulterous husband since women are always victims and can never commit any crime.

DE-CRIMINALIZING OF ADULTERY

Marriage is both, a holy sacrament and a civil contract and the society has certain thoughts about the same. Yet, it is not a standard frame contract. The spouses are and ought to be at a freedom to choose their own terms of the contract. Therefore, whether they allow each other to have or maintain sexual relations with outsiders should be the sole discretion of the parties alone.

The National Commission for Women recommends that adultery should be only a civil wrong as opposed to civil and criminal both. The Supreme Court tacitly agreed that the husband and wife should not impose penal provisions of criminal law on each other. Providing for a provision in criminal law to modulate civil contracts, in particular the contract of marriage, which is private and personal, is unjustified.

Imposing penalty on the adulterer for committing adultery is not and cannot be a remedy for a person aggrieved of adultery.The object of prosecution for adultery is to reach a settlement with the offender and seldom to send the offender to jail. This was the main reason why the offence of adultery did not space in the first draft. To this degree, the conditions are not considerably different even today.

The existence of Section 497 has no evidentimpact on society. Acknowledging this, most western countries have decriminalized adultery. It is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Sweden and even the UK, of which we have borrowed most of our laws. It is high time that this law is revisited even in India and amended to meet the present circumstances.

CONCLUSION

Indian society is dynamic. Adultery as an offence is extremely gender biased, and hence the punishment for it follows the same pattern. The woman is looked at being incapable of taking care of herself if her husband chooses to violate the marital bed. This law act as furtherance to this belief and supresses any scope for achieving equality in laws governing both men and women. When personal laws today are efficient and operate for both sexes as being equals, and women are able to establish their own identity in society without their husbands, there is no requirement to retain adultery as a criminal offence as well.

It must be kept in mind that adultery was drafted into the Indian Penal Code, 1870 during the existence of the colonial rule in India. The prevailing conditions at this time were such that a woman was looked at as being the mere property of a man. However, in the present day, women are not mere chattel whose identities are defined by the men surrounding them, but by their own individual personalities. Law, being dynamic in nature, must evolve with society. Therefore, the dubious logic behind the adultery laws in India cannot be accepted in today’s continuously evolving society.

In the modern era when the society is too liberal with the sexual offences and gender equality is order of the day, the provision of adultery has opened for debate. It fails to answer several questions and leads to serve hardly any proper purpose. To some extent, the gender neutral version of the provision of adultery as recommended by Malimath Committee and Law Commission would be appeared more logical and relevant. In the modern society, penal statutes must be kept beyond the reach of that civil matter, especially family matter, where such provisions are misused, misunderstood and hardly effective.

There is a need to have a second look to the provisions relating to ‘adultery’ in India, and better way to decriminalize it and make it only as a civil wrong. Such changes are required to translate the contemporary ‘social transformation’ assuring equality to women and the constitutional spirit of gender equality into a reality.

REFERENCES                                                              

• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1627649
• https://researchersclub.wordpress.com/2015/02/22/a-study-of-adultery-analyzing-the-gender-neutrality-of-the-law/
• https://www.scribd.com/document/270151788/The-Law-Relating-to-Adultery-A-Critical-Evaluation-in-Present-Social-Context
• http://journal.lawmantra.co.in/wp-content/uploads/2016/05/4.pdf
• http://www.legalservicesindia.com/article/print.php?art_id=146

[1] Hari Singh Gaur, Penal Law of India at 4654 (Law Publishers, India) 11^th ed. 2009

[2] Samraj Nadar v. Abraham Nadachi, AIR 1970 Mad. 434, 457

[3] Gansapalli Appalamma v. Gantapalli Yeliaya, (1897) ILR 20 Mad 470

[4] Chandra Chitra Loha v. Mst. Nandu, AIR 1965 MP 268, 269

[5] Ratanlal & Dhirajlal, Law of Crimes at 2710/ Bharat Law House 26^th ed. 2007

[6] Hatim Khan v. State, AIR 1963 J & K 56

[7] Gaur Penal Law of India at 4654-55 (cited in note 1)

[8] ibid

[9] Nurul Haq Bahadur v. Bibi Sakina & Ors. 1985 BLD 269

[10] Law Commission of India, Report number: 42 326-327 (1972), accessed  at http://lawcommissionofindia.nic.in/1-50/Report42.pdf

[11] AIR 1954 SC 321

[12] AIR 1985 SC 1618

[13] AIR 1988 SC 835

[14] Vishnu, AIR 1985 SC at 1621

[15] Subash C. Kashyap, Constitutional Law of India at 481, (universal Law, 2008)

[16] Constituent Assembly Debate, Vol. VII at 650

[17] Supra Note 10

[18]ibid

[19] ibid

[20] Criminal Justice, at 190 (cited in note 5)