India: Criminalization Of Adultery In India - Gender Bias Approach

Section 497, Indian Penal Code, 1860 [hereinafter referred as "the Act"] adumbrates that if an accused has sexual intercourse (not amounting to the offence of rape) with a person who is and whom he knows or has reason to believe to be the wife of another man shall be punishable for the offence of adultery if there isn't any consent or connivance of the husband. Further, it states that the wife (with whom the accused had the intercourse) shall not be punishable as an abettor. The following conclusions can be drawn from the bare perusal of the aforementioned section:

  1. That the accused (whether married or not) is punishable for imprisonment for 5 years or fine or both if he has sexual intercourse with a married woman [hereinafter referred as "the alleged act"].
  2. That if there is consent or connivance of the husband, then the said act will be outside the purview of Section 497.
  3. That for the alleged act to fall within the ambit of the aforementioned section, the same has to be consensual otherwise it will tantamount to rape. Thus, the section prescribes punishment for a consensual sexual activity.
  4. That in such case of "alleged act" only "man" is held as the accused and not the married woman with whom he had consensual sexual intercourse. Even though there is intentional aid (for the application of this section, consent has to be presumed on the part of wife), the wife has been statutorily exempted from any penal consequences and we cannot presume the common intent on the part of wife because she can't be prosecuted as an abettor.
  5. That the section makes the alleged act punishable only if the same is with the married woman. Thus, if an accused being a married man has sexual intercourse with an unmarried woman, although adultery, the same will be outside the purview of aforementioned section.
  6. That aforementioned offence being a non-cognizable one, the prosecution for the same cannot be initiated unless there is a complaint by the husband as he is the one who is deemed to be aggrieved and no one else. Further, in case the husband is not there then the person who had guardianship of the woman on his behalf, at the time when such an alleged act was committed, with the leave of the court, may make complaint on his behalf.17 Thus, in case a married man has sexual intercourse with a married woman then only the husband of married woman is deemed to be aggrieved and not the wife of married man (or the accused in this scenario,).

For the sake of reference, Section 497 of the Indian Penal Code is herein under:

497. Adultery.—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.

That in terms of the said section and the various judicial precedents, it is clear that as per Section 497 of the Indian Penal Code "wife" cannot be held responsible for the said criminal act. Furthermore, as per the well-established principles of law, wife is not even punished or held criminally liable for 'abetting' the offence which is in total contradiction to the concept of 'equality' which forms the fundamental cornerstone of the Indian Constitution.

Adultery is also a civil wrong and the same has been prescribed as the ground of divorce in matrimonial laws.18 Further, the scope and meaning of adultery in matrimonial laws is wider than the aforementioned Section.19

Constitutional vices in the section

There is no iota of doubt that abovementioned section is suffering from constitutional vices on the ground of gender discrimination and is tilted in favour of woman, as they have been granted complete immunity from prosecution. The constitutionality of the aforementioned section has been challenged before the Hon'ble Supreme Court of India20 and each time although noting certain flaws, the Hon'ble Court was pleased to adjudge the same as constitutional. Law Commission21 has also noticed the institutionalized discrimination imbibed in the section and suggested for its removal or alternatively making it gender neutral. That the Hon'ble Supreme Court, in various judgments22, has held the same as constitutional on the ground that it is a special provision for women23 and is also necessary to preserve the matrimony.24

It is submitted that the aforementioned section suffers from constitutional vices on the following grounds:

  1. That the object of the section is to punish for adultery as the same, is against the prevalent societal values. Yet only adultery with married woman is a punishable offence but not with the unmarried woman. Thus, ex facie, the classification into married and unmarried woman doesn't have any reasonable nexus with the object sought to achieve.
  2. That the section loses its enforceability if there is consent or connivance of husband. This results in degradation of the status of woman being a 'property' of man, as for having consensual sexual relations she needs consent of her husband which results in a conclusion that the man is owner of his wife and this 'absurd' conclusion which has direct implication of the bare wordings of the section is against the equality or gender justice principles enshrined in the Constitution.
  3. That the section 198(2), Code of Criminal Procedure, 1973, doesn't treat the wife of a married man committing the alleged act as a person aggrieved by that said act. It is submitted that there doesn't exist any intelligible differentia for such classification. It is a grave inconsistency that at one instance Section 497 is said to be constitutional on the ground that it is a special provision for woman under Article 15, while the right to prosecute one's own husband for adultery has not been recognised25.
  4. That consensual sex falls within the ambit of sexual privacy of an individual, hence, should not be penalised. The civil consequence of the section is already given in the form of divorce under personal laws. Such an interference by the state in extremely personal matter is wholly unwarranted and against the one's personal liberty.

At present, the constitutionality of the aforementioned sections has been challenged again before the Hon'ble Supreme Court vide a Public Interest Litigation.26 The Hon'ble Court in the aforementioned case directed the matter to be heard by a Constitutional Bench, inter alia, noting that:

"...we had noted that the provision seems quite archaic and especially, when there is a societal progress. Thus analyzed, we think it appropriate that the earlier judgments required to be reconsidered regard being had to the social progression, perceptual shift, gender equality and gender sensitivity. That apart, there has to be a different kind of focus on the affirmative right conferred on women under Article 15 of the Constitution." (Emphasis supplied)

Conclusion

As noted earlier, that, ex facie, the section 497 of the Act suffers from constitutional vices and gender inequality. The basic structure of our legal system is also based on the fundamental concept of 'equality' and in such a scenario, it is of utmost importance to achieve gender equality by addressing the challenges of both men and women. It is high time that offences under the Act be revisited and brought into consonance with the present day societal values. It is pertinent to state that in a country like India, wherein right to equality forms one of the basic tenets of the Indian Constitution, men and women should be treated at par and as such crime is supposed to be gender neutral and the protection for women envisaged in Article 15 does not and cannot reasonably be presumed to provide protection against the crime committed by her. The neighboring countries sharing common societal background and history have also considered 'adultery' as a gender-neutral crime.27 The wife is punishable as an abettor in Section 497 of Ranbir Penal Code, 1932(the act applicable in Jammu & Kashmir).

With the recognition of 'Right to privacy' as a fundamental right in particular, the acceptance of 'sexual privacy' of an individual, state control in consensual sex matters is highly undesirable and unwarranted. The argument for not punishing women so as to save the marriage loses its force, as the action of divorce is still maintainable against the wife under matrimonial laws. Thus, the whole scheme of the section is not in coherence with the object for which it was enacted and hence, stands on a very loose pedestal.

As rightly said by Hon'ble Justice SN Dhingra:

"We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. Does this concept of equality not apply in case of adultery also? Is a woman a child, baby, an insane or suffers from some other infirmity that anyone can easily take her for a ride? Even if she is highly educated then also she is granted blank cheque of having free sex and not be held liable and face punishment for the same. This is most despicable, to say the least. A crime is a crime. If women can be punished for murder, theft and other offences then why not for adultery also? Time has come when this gross injustice perpetrated on men alone is rectified suitably and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality."

Hence, the legislators need to decriminalize the section as adultery is no threat to the society. Further, steps need to be taken to amend the law to the extent that both men and women are treated at par with respect to the crime committed under Section 497 of the Indian Penal Code. Furthermore, there should be equal rights for men and women as laid in the Constitution of India which envisages equality before the law and equal protection of the law for all its citizens.

Footnotes

17 See, Section 198(2), Code of Criminal Procedure, 1973.

18 See, Section 13 (1), Hindu Marriage Act, 1955; Section 27(a), Special Marriage Act, 1954; Section 10(1)(i), Indian Divorce Act, 1869; Section 32(d), Parsi Marriage and Divorce Act, 1936.

19 Sowmithri Vishnu vs. Union of India and Another, (1985) Suppl.SCC 137.

20 Yusuf Abdul Aziz v. State of Bombay,1954 SCR 930; Sowmithri Vishnu v. Union of India and Another, (1985) Suppl. SCC 137 and V. Revathi v. Union of India and Others, (1988) 2 SCC 72; W. Kalyani v. State through Inspector of Police and Another,(2012) 1 SCC 358.

21 42nd Law commission reports in 1971 and Justice Malimath Committee on Reforms of Criminal Justice System, 2003.

22 Supra note 4.

23 Yusuf Abdul Aziz v. State of Bombay,1954 SCR 930

24 Sowmithri Vishnu v. Union of India and Another, (1985) Suppl. SCC 137

25 V. Revathi v. Union of India and Others, (1988) 2 SCC 72.

26 Joseph shine v. Union of India Writ Petition (Criminal) 194/2017.

27 K.D.Gaur, Indian Penal Code, 1860 845 (6th Ed.,2015).

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