Updated: Aug 16
Destroyed Fulcrum of Adultery Laws: Time To Revisit the Legislation
“The first breath of Adultery is the freest; after it, constraints aping marriage develop”. - JOHN UPDIKE
The Interests of humans are closely connected with the sacredness of the nuptial thread and the chastity of women.Adultery means voluntary sexual intercourse between a married person and a person who is not their spouse. It is not a naive concept to the world, moreover, it has existed in almost every recorded era.Section 497 of the Indian Penal Code relates to one amongst the many offences against marriage namely, adultery.
The law punishes a man with a five-year imprisonment, or fine, or both if he commits sexual intercourse with the wife of another man and has knowledge or reason to believe that the woman is the wife of another man. Such intercourse must necessarily be without the consent of the husband and must not amount to the offence of rape. The law has no provisions to punish the adulterous wife for committing the same offence in equal capacity as the adulterer. The law is also silent about the possibility of the husband committing the offence of adultery, hence does not recognise it as a crime. There are some peculiarities in the state of society in this country which will have to be foregone to punish the infidelity of the wife.
Adultery in the Indian sense refers to the infringement of the husband’s right over his wife. It is an offence against the sanctity of marriage and is committed by a man and not a woman. Sexual intercourse is necessary for the offence of adultery to be committed but, if the husband has consented or connived to the act, it will not fall under the ambit of Section 497. The consent of the woman to the adulterous act is no defence for the adulterer to escape the punishment.
In Yusuf Abdul Aziz v. State of Bombay, Sowmithri Vishnu v. Union of India and Revathi v. Union of India, the apex court stated that section 497 is not violative of Article 14 of the constitution because the distinction made under this section is intra vires Article 15(3) which considers “sex” as a sound and reasonable ground for classifying individuals. The apex court ruled that this privilege given to the adulterous wife qualifies to be called a special provision for women made under Article 15(3) of the constitution. And it is generally accepted that it is always the man who is the seducer and not the woman hence, the privilege given to the woman is justified and legal. This privilege was given to the wife at the time of making the law because the condition of women around 1860 was pitiable. They weren’t given equal status in the society, they were married when still young, had to share their husband’s attention etc.
Hence, this law was made for protecting the status of women in the society and absolve them of any liability arising out of making choices. The choices were primarily made due to the reason that the wife was habituated to sexual intercourse and the inability of the husband to perform sexual intercourse or if the husband does character assassination of the wife. Condonation of adultery by the husband in furtherance to protect the dignity of his family may also be a reason for the commission of this crime by the wife. So, if the wife consents to the adulterous act in her full capacity, she shall not be victimised for the same.
The law doesn’t punish the adulterous woman even when she has committed the offence in her full capacity and with consent. The woman is neither liable as an abettor under section 108 of IPC nor subject to any punishment under section 497 of IPC for being a Party to the crime of adultery. The adulterer and the wife, both have equally consented and contributed to the adulterous act, still the law makes a distinction between the two based on sex. The law looks prima facie flawed as it punishes one party to the crime while making the other party completely immune to any punishment, hence it may be violative of Article 14 of the constitution.
Article 14 prohibits any and all discriminatory laws. Article 14 reads: “The state shall not deny to any person equality before the law or the equal protection of laws within the territory of India.” But the article permits reasonable classification which must be based on an intelligible differentia and the differentia must have a rational nexus with the object sought to be achieved by the law. But in the case in hand, the key question which was addressed by the Law Commission of India, under the Chairmanship of Mr. K.V.K. Sundaram, in its 42nd Report in 1971 was that should the offence be limited to men only and women be absolved of all liability. After much research, the law commission observed that the woman should be held responsible for the adulterous act equally as the adulterer.
After the critical analysis of constitutionality of section 497 of IPC, the stand of the judiciary on gender neutrality of the law through judicial pronouncements, committee reports have tried to study the jurisprudence behind section 497 of IPC and its viability in today’s context.
EVOLUTION OF ADULTERY LAWS
The roots of the offence of Adultery can be traced back to the Code of Ur-Nammu which is the oldest known law code surviving today. Verse 6 of the code states that if a man has sexual intercourse with the wife of another, then he shall be killed and Verse 7 states that if it was the woman who voluntarily seduced the other man, the man shall be freed, and the woman be slayed. The law forbidding adultery was codified in at Mt. Sinai as a part of one of the ten commandments, written by the finger of God on stone tablets. There are adequate historical traces relating to adultery.
The concept of Adultery being a crime was introduced in India by the British in the form of section 497 of the Indian Penal Code, 1860. Before 1860, Adultery was not an offence in India. In India, the laws of Manu did not punish the husband committing adultery and felt the necessity for a wife to always be respectful towards her ‘master’. In 19th century, the British considered a married woman to be chattel of their husbands, i.e., the wife was regarded as a property of the husband. The promiscuous wife faced banishment even worse than the unfaithful man. But irrespective of this, adultery was neither criminalized in any statute nor in the common law. During that era, adultery was considered a tort which was abolished in 1857.Lord Macaulay opined that the benefit from making adultery an offence would be achieved through pecuniary compensation in most of the cases and for the rest, the law could never provide a satisfactory solution while dealing with marital treachery, provided the sacramental nature of marriage.
The purpose behind the enactment of the law was to preserve the sanctity of the institution of marriage. Marriage was considered a means of ensuring blood-line purity which ensures that the property of the husband goes to his heirs. And adulteration meant, his lineage would be affected and the chain of inheritance of property will be altered by some alien male.
The condition of women in India has been socially and economically impaired and they have been victims of oppression since time immemorial. They were treated as property of their husbands. Hence, to protect them and make their lives better, they were granted exemption from punishment of offence of adultery even as an abettor.
“SPECIAL PROVISION” AS PER ARTICLE 15 OF CONSTITUTION OF INDIA
According to Article 15(3), the state cannot be prevented from making any special provision for women and children. Articles 15(1) and 15(2) prevent the state from making any law which is discriminatory on the grounds of gender alone, thereby ensuring gender equality. Nevertheless, because of Article 15(3), the state has the power to make any special provision for women. The purpose of Article 15(3) is to remove the socio-economic backwardness of women and to empower them in a manner to bring equality between men and women. The objective of this article is to improve and strengthen the status of women in the society. When Article 15(3) and Article 15(1) are read together, it is made clear that the state may make any law to favour women.
Under Section 497 of IPC, only the male (adulterer) is punished for the offence of adultery and the female is immune from any kind of punishment as she is not liable even as an abettor. This qualifies as a special provision for women under Article 15(3), the supporters of the law say.
In Yusuf Abdul Aziz vs. The State of Bombay, Mr. Yusuf Abdul Aziz was charged for the offence of adultery. He contended before the Hon’ble Bombay High Court that Section 497 of IPC is unconstitutional because it is in contravention to Article 14 and Article 15 of the Constitution. The law is operational unequally between a man and a woman by making only the man liable for adultery. He thereby argued that Section 497 IPC discriminates in favour of women and against men solely on the ground of sex. Keeping in mind the historical background of Section 497, and the then prevalent social conditions and sexual morals which oppressed the women, the High Court of Bombay upheld the constitutional validity of the provision. The court said that this discrimination was not made because of women had a sex different from that of men, but because of the conditions and situations to which the women were subjected in our country, that there was a requirement for special legislation which would protect them. The court also said that the discrimination in question was protected by Article 15(3) of the Constitution which permits the state to make ‘special provisions’ for women and children.
Yusuf Abdul in an appeal to Supreme Court argued that Section 497 assumes that only a man can commit the offence of adultery and mandates the court that the adulterous wife shall not be liable for punishment even as an abettor. This contradicts the spirit of equality enshrined in Article 14 and Article15 of the Constitution. It was argued that such immunity which is given to the adulterous wife for her participation in the adulterous sexual activity by her own consent gives the women the license to abet and commit the crime of adultery.
The Apex Court, in response to the argument that Article 15(3) should be confined only to provisions which are useful for women and should not be used to give them a license to commit and abet a crime said that, they are unable to find any such restriction in the clause, and that they are not able to agree to the argument that just because a provision prohibits punishment, does not mean that it gives the adulterous wife the license to commit the offence, the punishment of which is prohibited.
It’s been decades now that we are talking about “equality” i.e. a 50:50 situation. The most talked about type of equality is “GENDER EQUALITY”. Owing to the gross inequalities and atrocities that women have been suffering since ages, a need was felt to make certain laws to preserve and protect the interests of women, Article 497 was developed on the same line of argument. The legislations that were made to fulfil this purpose were, fairly and completely legitimate for those times but these legislations have now gained the potential to hamper the interests of males and violate their fundamental rights.
Hence, due to legitimate reasons, this era craves for a GENDER-NEUTRAL society. We shall look forward towards creating a society where gender equality prevails but not on the cost of giving undue advantages to any particular gender. Gender neutrality, in no way is against gender equality rather, both are complementary to each other. Commission of a crime has nothing to do with gender. Men and women can have equal mind potential to commit a crime hence, they need to be held accountable equally.
When the law on adultery was made 150 years ago, the situation of women in the societal sphere was completely different from what it is today. The law right from the inception takes away the husband’s right to sue his wife for cheating on him.
We essentially require accepting the fact that women can be perpetrators too. Our laws should not be based on mere assumptions that one sex is less privileged than the other and that absolving it of any accountability would help us gain gender equality. Accepting laws based on such line of thought certainly result in lack of delivery of true and complete justice to the victim. Hence, the research work proves true both the hypotheses of the authors and manages to substantially answer all the research questions, thereby fulfilling all the objectives.
The Supreme Court of India has recently acknowledged the need for ramifications needed in this legislation. Adultery as a criminal offence has undergone a very liberal change and people nowadays are indulged in it withthe consensual element of having an intercourse. Therefore, it has become the need of the hour to judge men and women equally.
Author: Navin Kumar Jaggi