A Provision Redundant In Criminal Law Law Family Essay

Published Date: 02 Nov 2017

Sohil Yadav [2011/BBA LLB/052]

Tushar Thakral [2011/BBA LLB/057]

ADULTERY

A Provision Redundant in Criminal Law in changing Legal and Social context!

Adultery is voluntary sexual intercourse of a married person with someone who is not a spouse. The legal definition of adultery, however, varies from country to country and statutes to statue. While, adultery is, in some places, when a woman has voluntary sexual intercourse with a person other than her husband; and in other places, adultery is when a woman has voluntarily sexual intercourse with a third person without the consent of her husband.

Although, the modern trend is to decriminalize adultery; historically, many cultures have viewed adultery as a crime. Jewish, Muslim, Christian and Hindu traditions are all unique in their condemnation of adultery. In most cultures, both the man and the woman are equally punishable. However, according to ancient Hindu law, in ancient Greece and in the Roman law, only the offending female spouse was punished with death; whereas the men were not punished severely.

In India, the offence of adultery is an offence under Sec. 497 of the Indian Penal Code, 1860 (hereinafter referred to as "the Code" or "IPC"). Sec. 497 of the Code defines ‘Adultery’ as follows:

"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." [1] 

As it stands, adultery is an offence which is committed by a third person against the husband in respect of his wife and of which a man alone can be held guilty [2] , meaning thereby that it is an infringement of the rights of a husband towards his wife and the law of this country regards it as an offence. [3] This Sec. makes only men who have sexual intercourse with other men’s wives, without the consent of their husbands; and does not punish the women, neither for adultery nor as an abettor. Enticement and detention are also not included as an offence under this Sec. [4] A conviction based on ingredient shorter than sexual intercourse would not be justified. [5] The report of the ‘Malimath Committee’ on Criminal Justice Reforms and the 42nd Report of the Law Commission of India recommended to redefine Sec. 497 to make the women having sexual intercourse with a third men punishable under the said Sec. The Central government, therefore, looked for the view of all 30 states of the country for the implementation of those recommendations suggested by the ‘Malimath Commission’. This paper attempts to establish the redundancy of Sec. 497 in light of the Personal and Matrimonial laws and changing social conditions. Later, making a case against amendment and wanting to completely delete the said Sec. from the IPC.

AN ANALYSIS OF SECTION 497

Only one form of adultery has been made punishable by Sec. 497. It only penalises the sexual intercourse of a man with a married woman, without the consent of her husband, provided that the sexual intercourse does not amount to rape. That is, it draws a distinction between a married woman having sexual intercourse with a third man, without the consent of her husband and a consent given by an unmarried woman. The Sec. does not punish the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. Thus, if the offence of adultery is committed, in that case ‘the man, i.e. the husband of the adulteress cannot prosecute his unfaithful wife, but can only prosecute her adulterer’. However, since the crime of adultery is committed by a man with a married woman only, the wife of the adulterer can neither prosecute her husband nor the adulteress. It is interesting that the Sec. expressly states that the unfaithful wife will not be penalized as an abettor of the offence. Therefore, the offence of adultery is an offence against the adulteress’ husband and not against the wife of the adulterer.

Sec. 497 was impugned before the Supreme Court under Article 14 of the Constitution of India (hereinafter referred to as "the Constitution") on the grounds that it is arbitrary and discriminatory as it was based on sex. But the Hon’ble Court held that gender is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for a special provision in that case of women and children by Art. 15 (3) of the Constitution. [6] 

In the case of Yusuf Abdul Aziz v. State [7] , the Court held that Arts. 14 and 15 of the Constitution, thus read together validate the last sentence of Sec. 497 of the Code, which prohibits women from being punished as an abettor of the offence of adultery. [8] Meaning that the immunity granted to women from being prosecuted under Sec. 497 was not discriminatory, but is valid under Article 14 and 15 (3) of the Constitution, read together. [9] 

In the cases of Sowmithri Vishnu v. Union of India [10] and V. Revathi v. Union of India [11] , firstly, it was decided that it is the policy of the law to not to punish the women for adultery and that the policies of the government could not be called into question. [12] Secondly, it was held that it was not considered that a husband would hit his wife with penal provisions. [13] Thirdly, that the offence of adultery was a breach of matrimonial home and not against either the wife or the husband. [14] 

It should be mentioned that all the above mentioned decisions of the Supreme Court has limited the scope to determine the constitutional validity of Sec. 497, as it defined under the Code. Thus, these decisions should not be treated as an authority on the question of whether the Sec. is necessary or not.

Adultery cannot be committed without the consent of a woman, else would amount to rape. Most of the question raised regarding the Sec. is that it only charges the men for the offence and not the women. The reasons for this may, although, be justified, the woman is always treated as victims when an offence is committed. Thus, neglecting the possibility where the ‘same married woman has sexual intercourse with more than one person’ other than her husband without her husband consent. It is highly unlikely that even in such a situation, the woman would be the victim and that she is not the person who is provoking the perpetrator of the crime to commit the crime. Therefore, there is no doubt that the law, as it stands today, is inadequate and incompetent.

WHY ARE WOMEN NOT PUNISHED FOR ADULTERY?

Ordinarily, the wife would, in cases of adultery, be an abettor and could have been tried or prosecuted as such. But Sec.497 makes an express exception in the case of the wife who shall not be punishable even as an abettor. The said Sec. defining the crime of adultery did not punish the women, but is still present in the code as it was adopted at the time when the law was enforced, polygamy was deeply rooted in the Indian society and women shared the attention of their husbands with several other women and extramarital affairs. Women were treated as victims of the crime of adultery as they were often starved of love and affection from their husband and could easily give in to third person who offered to have illicit relation or even offered to deliver it. Thus, the provision attempted to restrict men having or offering to have or offering to deliver sexual relationships with other men’s wives and at the same time to limit their extramarital relations with unmarried women alone.

The framers of the IPC explained as to why this course was adopted. They pointed out that it would be weighing a scale against the women, which scale was already too much depressed, by making women punishable for committing the offence of adultery. [15] Women, according to them, were more often than not mere chattels in the hand of men and placed as they were, it was impossible for them to assist the cajolery that men might hold out against them. [16] They were of the notion that married women cannot the offence of adultery or its abetment. So far as a married woman is considered, adultery is only a serious breach of marital tie according to the social ideas of the community. [17] 

WHY THE SUPREME COURT HAS ERRED?

Given the limited questions on the Constitutional validity before the Supreme Court, the object of Sec 497, as already mentioned, was often brought before the Supreme Court. The decisions of the Court have, therefore, mistaken to keep a limited scope of adultery as a criminal offence against the marital home.

If adultery was an offence against the matrimonial home, then neither the husband nor the wife should be at the liberty to indulge in extramarital sexual relations with married or unmarried women/men or to have such illicit relation even after the consent of the spouse. But, adultery, as it stands today in the Code, is, therefore, not a violation of the matrimonial home, but against the husband of the adulteress himself. It uses the same analogy that is used for the offence of trespass. For e.g. any person is not expected to enter the property of another man without his consent, in the same way, it is not expected from another man to have illicit sexual relation with someone’s wife without his consent. There is no doubt, therefore, that this Sec. treats a woman as a man’s chattel.

CHANGING SOCIAL CONDITIONS!

Polygamy in all religions are illegal, except Muslims, who are legally allowed four wives, which also has ceased to exist and has become illegal. Men now have only one wife, who has no rival for her husband’s love and affection. Today, not only can a person having two wives be accused of bigamy, but his second marriage is treated as void ab initio. In contrast to the past, when it was necessary to prove that the man ‘was living in adultery’; now, even a single instance of sexual intercourse with someone other than the spouse entitles the other spouse for prosecution.

Now, wives do not starve for their husband’s love and concern and also, hardly can any spouse have polygamy or extramarital relation without the imposition of any legal action. The definition of adultery in civil law is much broader as compared to that of criminal law. Like, ‘Living in Adultery’, as stated in Sec. 13 (1) (i) of the Hindu Marriage Act, 1955 [18] has a different and wider meaning than ‘Adultery’ under Sec. 497 of the Code. The personal laws that did not exist in its present form at the time of adoption of such law have not only enforced but also given some level of liberty to both the husband and the wife. Of course, these factors have made the object of the then Sec. 497 obsolete.

WHY WOMEN ARE NOT EVEN PUNISHED NOW?

For long now, it has been demanded that women should also be punished for adultery. But the object of the amendment to punish women for adultery is not clear. The two most evident reasons can be either the fact that, for which the women were exempted from the offence of adultery, as stated earlier, are no longer justified and valid, or to bring gender parity followed in the present law. In either case, the amendment would defeat the purpose.

It is true that the reasons which justified the exception of women from the offence of adultery are no longer valid, but still, would the consequences of amending the definition of adultery to impose penalizing provisions on women would immoral and unethical. Just because the men, are giving the women the attention they deserve from their husbands, does not mean women are at par with the men in every social aspect. We live in a society where, even an allegation of infidelity of woman is enough to make their lives a living hell, let aside the prosecution. For women under the penalties of adultery under Sec. 497, would become a haven for those husbands and in-laws who want to get rid of their wives and daughter in-law owing to women’s social status. Once a woman’s reputation is ruined, she will become an easy target of the abuse by other men. Legislators need to understand that what is not the same cannot be made same or equal by merely changing the definitions. Providing for such provisions may make a woman lose her reputation; and especially, in the Indian context, woman losing her reputation is like killing of the soul of a person, while keeping only the body. In no case should such provisions be provided for.

Thus, the change in the definition of adultery to penalize the women under the name of gender parity would only give the society a reason to defame women even more and would thereby increase the disparity of status between men and women. Thus, defeating the very purpose for which the amendment was demanded.

DECRIMINALIZED ADULTERY

In India, marriage is both a sacrament and a civil contract and the society has some definite views about the same. But still, it is not a standard contract. Further, the spouses are and should be at a liberty to choose their own terms of the contract. Therefore, whether they allow each other to have or maintain sexual relationships with third parties should be at the discretion of the parties to such contract 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 also, tacitly agreed that 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 the husband of wife with whom the adulterer commits the offence of adultery. The object of prosecution for adultery is more often to reach a settlement with the offender and rarely to send the offender to prison. In fact, this was the reason why the offence of adultery did not find space in the first draft of the IPC. The conditions are not much different even today. The existence of Sec. 497 has no obvious influence on the 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. In the United States, there some states where one will find adultery in the statutes. But in those states, offenders are rarely prosecuted.

CONCLUSION

True that the 42nd Report of the Law Commission shows that there can be two opinions on the desirability of retaining a provision like the one contained in Sec. 497 of the Code. [19] 

But ‘Adultery’ is more of a civil wrong rather a criminal offence. The object of making adultery punishable by law and limiting its scope to men alone was to discourage the men taking advantage of women starved of the love and affection from their husbands and also to discourage such men to have illicit sexual relations with other men’s wives. Also, to inflict punishment on those who interfere with the sacred relation of marriage [20] , the reason being that as adultery is an anti-social and illegal act, no peace loving citizen or person of good morals would like that it should be permitted to be indulged in. [21] Since men had the social sanction to have such relation and women starved for the love and affection from their husbands, women were treated as the victims of the crime rather than the author of the crime. When Sec. 497 was enacted, there were no codified personal or marital laws like today, they were unequal and inoperative.

Over the years, polygamy has become illegal while monogamy has become widespread. Today, the personal laws are equal, operative, effective and efficient. The definition of adultery in marital laws is much broader than that in the penal law. To have polygamy or extramarital relations without the fuss civil suit is almost impossible. Women have begun to establish their own identity in the society and are no longer treated as mere chattel of their husbands.

But there are no reasons to keep adultery as a criminal offence in the Code as our personal laws are sufficient to take care of adultery as a civil wrong.