Adultery- the need for change in IPC
In the state of nature...all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law. - Charles de Montesquieu
‘Marriages are made in heaven’. Over centuries this has been believed and marriage has always been considered as the building block of the society and its sanctity has been accepted and respected in all societies and across cultures.
But these days due to unrealistic expectations about marriage, curiosity, lost sense of fun and excitement in the marriage, addiction to physical intimacy, inability to accommodate a partner’s needs, interests or expectations, inability to communicate one’s own interests, needs or desires, boredom with the marriage, work, lack of verbal skills or motivation to solve relationship problems together, people seem to drift away from their marriage and start searching for a new partner in whom they find happiness and satisfaction.
This has been seen more so in the urban areas as compared to the rural areas probably because of the modern lifestyle in urban areas. This emerging trend is wrong and will only devastate the institution of marriage.
Though the law in India makes a thorough attempt to preserve the sanctity of marriage but there are lot of lacunas and loopholes. Infact law needs to change with the changing needs of the society. Codes and laws formulated in the nineteenth century have to be amended with time. They need to be introspected and revised if the need be. Otherwise, it will lead to a stagnant society, which will not develop and broaden its outlook.
One such provision of IPC which needs deliberation is Section 497, Indian Penal Code, refers to adultery. Adultery in this section has been defined as –
“Whoever has sexual intercourse with a person who is and whom he knows or has a reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to 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 a case, wife shall not be punishable as an abettor.”
Originally the section did not find a place in the first draft of Penal code prepared by Macaulay. His reasons for not including it were as follows :
“We considered whether it would be advisable to provide a punishment for adultery, and in order to enable ourselves to come to a right conclusion on this subject we collected facts and opinions from all the three Presidencies.
The following positions we consider fully established: first, that all the existing laws for the punishment of adultery are altogether inefficacious for the purpose of preventing injured husbands of the higher classes from taking the law into their own hands; secondly; that scarcely any native of higher classes ever has recourse to the courts of law in a case of adultery for redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in case of adultery to the Courts of law are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider wives as useful members of their small households, that they generally complain not of the wound given to their affections, not of the stain on their honor , but of the loss of a menial whom they cannot easily replace, and that generally their principal object is that the women may be sent back.1
These things being established, it seems to us that no advantage is to be expected from providing a punishment for adultery. We think it best to treat adultery merely as a civil injury”2
The Law Commissioners in their report on the draft Penal Code took a different view and said “while we think that the offence of adultery ought not to be omitted from the code, we would limit its cognizance to adultery committed with a married women, and considering that there is much weight in the last remark in note Q, regarding the condition of the women, in this country, in deference to it, we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trail together, and empower the Court in the event of their conviction to pronounce a decree of divorce against the guilty woman, if the husband uses for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine.”3
The latter recommendation was not accepted, and in 1860, section 497 was enacted in its present form.
Clause 199 of the Indian Penal Code Amendment Bill, 1976 read Section 497 as:
“Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband as the case may be, of another person, without the consent or connivance of that other person, such as sexual intercourse by the man 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.”4
Though, the section still remains unchanged.
The cognizance of this offence is limited to adultery committed with a married woman, and the male offender alone has been made liable to punishment. Thus, under the code, adultery is an offence committed by a third person against a husband in respect of his wife. It is not committed by a married man who has sexual intercourse with an unmarried woman, whose husband consents to it.
Now, the questions of law that arise here are:
Why has the code brought only the men in its ambit? Why have women received this perquisite of not being brought under the ambit the code?
Is the section in this code not violative of Article 14 (which guarantees equality to all before the law) and Article 15 (that the state shall not discriminate on the basis of sex)?
Why should adultery be a criminal wrong? Should it not be a civil wrong?
Why should a man be guilty of adultery only when he has a sexual intercourse with a married woman? Does having an intercourse with an unmarried woman make him less guilty of breaching his wife’s trust?
Article 14 of the constitution guarantees equality to all before the law or equal protection of the laws within the territory of India.
Thus, both men and women involved in the commission of adultery should have an equal standing before the law, as both have been equally involved.
Therefore, the section stands in violation of the fundamental right enshrined in part III of the Constitution.
Though the article is circumscribed by the clause which states that “the restriction imposed by reason of a statute, however, can be upheld in the event it can held that the person to whom the same applies, forms a separate and distinct class and such classification is reasonable one based on intelligible differentia having nexus with the object sought to be achieved.”
The prompt question is then how can we call the section violative of Article 14 if a piece of legislation, in this case being Indian Penal Code, can be upheld in which the section expressly provides for only the man to be held guilty and henceforth be punished for it.
It is here that the doctrine of reasonability steps in. Is the section 497 reasonable enough?
A code or statute so enacted must have a sound reason backing it. A statute or a law made should be in coherence with some logic. A statute can not be imposed on people in the absence of logic.
Where the equality enshrined in Article 14 is of wide import, it shouldn’t be, very conveniently restricted by the reason of a statute.
In Sowmithri Vishnu v. Union of India5, it was contended that Section 497 was violative of article 14 of the constitution as it unjustifiably denies to women the right which is given to men as it:
i) conferred upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the women with whom her husband has committed adultery.
ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and
iii) does not take in its ambit the cases husband has sexual relations with unmarried women, with the result that the husbands have a free license under the law to have extramarital relationship with unmarried women.
The petitioner had also argued that the right to life includes the right to reputation and therefore if the outcome of a trial is likely to affect the reputation of a person adversely, he or she ought to be entitled appear and to be heard in that trial and since s. 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is bad as violating Art. 21 of the Constitution.
The Supreme Court rejected these arguments and held that section 497 does not offend either article 14 or article 15 of the constitution. The court observed –
“Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried ladies. It only makes a specific kind of extramarital relationship between a man and a married woman the man alone being the offender. An unfaithful husband risks, or perhaps, invites a civil action by the wife for separation.”6
Supreme Court further observed – “We hope this is not too right but an underinclusive definition is not necessarily discriminatory. The alleged transformation in feminine attitude, for good or bad, may justly engage the attention of law makers when reform of penal law is undertaken. They may enlarge the definition of ‘adultery’ to keep up the pace with the moving times. But until then law must remain as it is. The law, as it is, does not offend either article 14 or article 15 of the constitution.”7
Regarding the second ground for Section 497 to be unconstitutional, namely, that it violates Article 21 of the Constitution, the court held – “We have no doubt that if the wife makes an application in the trial Court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the Court. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in section 497 cannot render that section unconstitutional as violating Article 21.”8
In V. Revathi v. Union of India9, the constitutional validity of Section 198 Cr.P.C. had been called into question by a wife. The petitioner wife contended that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband. The petitioner asserted that in so far as and to the extent Section 198(2) of the Code of Criminal Procedure operates as a fetter on the wife in prosecuting her adulterer husband, the relevant provisions is unconstitutional on the ground of obnoxious discrimination.
Upholding the constitutionality of section 497 IPC and section 198(2) CrPC, which the court said go hand in hand and constitute a legislative packet to deal with an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit, the apex Court held :
“The community punishes the 'outsider' who breaks into the matrimonial home and occasions 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. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in 'favour' of the woman rather than 'against' her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband.”10
The section also appears to be violative of article 15 of Constitution.
According to Article 15 of the Constitution –
“The state shall not discriminate against any citizen on grounds only of religion, race caste, sex, place of birth or any of them.”
Then why is state itself not encouraging gender bias? Why is it discriminating among its subjects?
Though the section also mentions that the shall not be prevented from making any kind of special provision for women in article 15(3), the fact question here is that what did the framers of the Constitution have in mind? Were they only referring to those provisions which shall uplift the status of a woman in society and improve her condition or promote reservations which will strengthen her in a male dominated society? Or did they mean to device a provision for getting away from being punished.
The authors of the code observe –
“The condition of the women of this country is unhappily, very different from that of the women in England and France, they are neglected for other wives while still young. We aren’t so visionary as to think of attacking, by law, an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain, operation of education and of time.”11
The time has now come for a reform in this section as the constitution drafters definitely didn’t have a women’s escape from punitive measures in mind.
In Yusuf Abdul Aziz v. State of Bombay12, it was contended whether Section 497, Indian Penal Code, ultra vires the constitution.
The court said that the appellant overlooked article 15(3) of the constitution which is a special provision for women.
It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a license to commit and abet crimes.
The court observed – “We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount, to a license to commit the offence of which punishment has been prohibited. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discriminate in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in section 497 of the Indian Penal Code.”13
Another question of law is that why is adultery a criminal wrong? Why shouldn’t it be a civil wrong?
Before the Marriage Laws (Amendment) Act, 1976, came into force, “living in adultery was a ground of divorce. On the other hand, a petitioner could obtain a decree of judicial separation, if he could show that his spouse, after the solemnization of the marriage, had sexual intercourse with any person other than his spouse.
Now, adultery simpliciter has been made ground of divorce as well as of judicial separation. The present clause has been worded thus- : “has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”14
It is a moral wrong and should be civil wrong and hence should be governed by provisions of Civil law. The punitive action should be of nature which punishes the soul and conscience of the guilty. Attraction towards other women because of an unexciting marriage is common. The fear of corporal punishment has not yet been instilled in the minds of the people because still adultery is a common scenario in many metros and even villages.
Adultery isn’t such a grave crime for which on gets a sentence of 5 years(maximum). As long as it serves as a basis of getting a divorce, makes a man feel morally guilty, hurts his conscience, the punishment has been given, divorce will serve as the punishment.
Imprisonment may further destroy his social and family life and may bring defamation along. It also scars the minds of the children as they may not even understand why the father has been imprisoned.
The next fact in question is that why is adultery not said to be committed when act of consensual sex is done with an unmarried women or a widow?
Are the consequences of such an act different? Will the fact that he has not had a sexual intercourse with a married woman make him less morally guilty? Has he not done injustice to his wife and family? Will this not amount to breach of trust or will the wife accept it calmly? Will she forgive him?
In 2006, National Commission for Women turned down proposals for amending Section 497. The commission does not think that by merely prescribing punishment for women by amending Section 497, marriage can be protected or saved.
In its recommendations forwarded to the Government, which asked it to review Section 497, the NCW stated that considering the relatively socially unempowered position of women, no amendments have been suggested.15
Is the law not encouraging adultery in the minds of women by this defect in the section? It’s not necessary that the woman is always a victim of such crime and not the author of it. A female too may have an urge to step outside her holy matrimony; otherwise an act of non consensual sex shall amount to rape.
The time has now come when all these questions must be answered. Vague and illogical laws shouldn’t find a place in society. It will make the subjects distant from the rulers and create instability in the legal system.
1. Reports of the Law Commission of India, Universal Law Publishing Co., Vol.5, 42nd report-India Penal Code, pg. 42.288.
2. id at 42.289
4. Reports of the Law Commission of India, Universal Law Publishing Co. Volume 13,156th report-Indian Penal Code, pg. 156.75
5. 1985( 1 )Suppl. SCR 741
6. supra note 5 at pg. 746
7. supra fn at 747
8. id at 748
9. 1988( 3 )SCR 73
10. id at 78
11. Ratanlal and Dhirajlal, Indian Penal Code, 30th edn, pg 913
12. 1954 SCR 930
13. id at 932
14. Paras Diwan, Modern Hindu Law, 18th edition, pg 157
15. http://www.hindu.com/2006/12/26/stories/2006122603270900.htm viewed as on 7.04.2010 at 13:55
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