Law of Adultery Under IPC - A Critical Analysis
Law is an instrument that governs all aspects of human life. Sexual relations between individuals are also covered by the same. The Indian Penal Code (hereinafter, ‘the IPC’) lays down various provisions for the same. One such law is the law of adultery. The provision punishes a person for having sexual relations with the wife of another man.
The cognizance of this offence is limited to adultery committed with a woman married to another man, and the male offender alone is liable to be punished. Thus, adultery is an offence committed by a third person against the husband in respect of his wife. It is not necessary that the adulterer should know whose wife the woman is, provided he knew she was married.Anekaiwife is a wife within the meaning of this provision.
The provision requires the following essentials:
1.Sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be wife of another man.
2.Such sexual intercourse must be without consent or connivance of the husband.
3.Such sexual intercourse must not amount to rape.
Constitutional validity of Section 497 IPC
In Sowmithri Vishnu v.Union of India, the Apex Court observed:
“...No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery as defined in section 497 is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of law.....Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. It only makes a specific kind of extramarital relationship an offence, the relationship between a man and a married woman the man alone being the offender.” The Court further observed: “We hope this is not too right but an under inclusive definition is not necessarily discriminatory...The law, as it is, does not offend either Article 14 of Article 15 of the Constitution”.
Complaint is necessary
No Court shall take cognizance of the offence under section 497 upon a compliant made by husband of the woman, or, in his absence, made with the leave of the Court by some person who had care of such woman on his behalf at the time when such offence was committed. Likewise, if the husband is a minor (below the age of 18), or is an idiot or a lunatic or is due to sickness unable to make a complaint, some other person can do so on his behalf.
Adultery is not a minor offence
Section 497 is not a minor offence in comparison to offences under Section 366A or 376 of the IPC. Hence, conviction of the appellant without framing a charge for an offence under Section 497 of the IPC is erroneous.
Critical analysis of the law of adultery
“Any fool can make a rule, and any fool will mind it”, said Henry David Thoreau.After all, law is another creation of one man to pull strings of many men and thus can never be ideal. Flawlessness being a mirage in any human creation, even law has succumbed to cracks and crevices.
As per Indian law, adultery is still considered the offence of marital property and treats Aboriginal women as patients, not those who initiated the crime of adultery and hence not punishable as accessories. Thus, the very first criticism of the law is that it is gender bias.
Marriage is considered a holy alliance and thus marriage vows are intended for both spouses to carry out their responsibilities and thereby remain faithful to each other. Thus adultery is the consequence of the collapse of faith and conscience in a relationship. Hence, not inflicting punishment on the woman is a serious jolt to the already tarnished faith of the husband in his spouse. It is more vague a law than rape as in case of rape it is forceful sexual intercourse which is punishable but herein consensual sex with the wife of another man is punishable.
The provision under the IPC is so framed that a husband cannot prosecute the wife for broken the sanctity of the matrimonial home by committing adultery with another man but he can prosecute that another man with whom his wife committed the offence. “Thus the law permits neither the husband of the offering wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. ”Also, the law doesn’t provide remedy to a woman whose husband has committed adultery with another woman, which is also violation of the gender neutrality clause provided in the Indian Constitution. Amendments to the law were recommended by the 42ndLaw Commission Report and the Malimath Committee Report of 2003but the law remained unchanged.
The very first landmark judgment regarding the constitutional validity of the law of adultery was held in the case of Yusuf Abdul Azizv. The State of Bombay and Husseinbhoy Laljee. Herein, Section 497 was challenged to be ultra vires the Article 14 and 15 of the Indian Constitution. The Apex court held that Article 14 is a general provision and should be read in concert with other provisions set as exception to the fundamental rights. It was held that the relevant provisions read together validate the provision under the IPC.
In V. Revathiv.Union of India, the constitutional validity of clauses 1 and 2 of Section 198of the Code of Criminal Procedure, 1973that it just permits the spouse of the adulteress to sue the miscreant however does not allow the wife of the adulterer to do so. The court held 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 wrongdoer in the eye of law.
The provision is gender bias mainly because it does not allow the wife to prosecute the woman with whom her husband engaged into an adulterous relation though it allows the husband to prosecute the man who committed adultery with his wife. The law has considered woman to be a victim and not an author of the crime. The court misses out on the point that the wife has no relief under criminal law though the same provision is given to the husband, and in case where woman is unmarried the woman cannot be prosecute altogether. This is a clear violation of the principle of natural justice.
This law considers only men as offenders on the ground that the women are physically or socially incapable of committing such an offence. Hence, wherein both the sexes are not equal footing while the offence is committed, such kind of provision is discriminatory and arbitrarily protects women. Article 15(3) of the Constitution gives the Parliament the power to make special laws for women but the provision nowhere says that such laws made must be inherently bias against men. It cannot be implied either because had it been so the entire purpose of the equality clause under the Constitution would be refuted. Hence, the provision is nothing but a violation of the equality clause under the Indian Constitution.
Polygamy and adultery: In all cultures and religions barring Muslims, polygamy has ceased to exist and moreover become illegal. In the present scenario, a person with two wives can not only be prosecuted for bigamy, but his second marriage also becomes void ab initio. Unlike earlier, when it was necessary to prove husband’s adulterous relationship to get divorce, now even a single case of sexual intercourse with a person other than the spouse allows other spouse to divorce. Lifestyle of people is changing and their ethics and morals are changing with time. Hence, there is a need to widely interpret the statute.
Presently, wives are not denied of their spouse’s adoration and consideration and mates can scarcely keep up any extramarital relations without inviting any legal consequences. The meaning of infidelity in common law is more extensive in degree than in criminal law. The new laws passed after the law of adultery came into existence, have gotten into operation as well as given sort of a level playing field for both the spouses. These components in concert have made the incumbent provision look redundant.
Another absurd but debatable angle is that by the mere fact that marriages are to be mandatory registered now, marriages must now be seen as a contract wherein the parties to the contract (herein, the spouses) must be free to decide the terms of the contract. Hence, a clause allowing the spouse to get into extra-marital relations in the marriage contract is an absurd but a plausible option. This again nullifies the penal provision which will be applicable anyway. Hence, this is also a criticism. Most of the western countries have decriminalised adultery. In most parts of the EU, including Italy, England and Austria, adultery is not considered a criminal offence. Moreover, the EU has denounced capital punishment for adultery now and then. It had likewise reprimanded Turkey’s presentation for adultery; it is a reasonable evidence of the stand taken by the EU of considering infidelity as a non-criminal offence. In the US, law of adultery fluctuated from one State to another but after the decision in Lawrencev. Texas delivered by the Honourable Supreme Court the validity of the adultery law is under debate. It is not an offence in many EU nations including Belgium, Finland, Austria, Sweden, the Netherlands, and even Britain.
The Honourable Supreme Court of India has already said that the philosophy behind this law is that social good is promoted that husband and wife are allowed to “make up” or “break up” the matrimonial relation rather than prosecuting and dragging each other to a criminal court. They can live together by forgiving each other and starting anew or get separated from each other by divorce or judicial separation. Moreover, law is made for betterment of children who can be saved from the trauma of seeing one of the parents being jailed.
The adultery law under the IPC is a vague law on various counts ranging from being gender bias to being in conflict with other laws prevalent. There is no reason why the law only punishes the man with whom the married woman is in an adulterous relation with and not the woman herself. Also, the law fails on the account that it doesn’t take into consideration the fact that many personal laws allow polygamy and hence, herein is a conflict between personal laws and the secular laws. Moreover, adulterous relationships are not considered a criminal offence in many countries which warrants a penal sanction and hence a chance of reformation must be given which lacks in the present law. Hence, at the outset it can be concluded that this law needs serious amendments to make it more effective and progressive.
# The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
# Id.,s. 497.
# 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 be punishable as an abettor.
# Madhub Chunder Giri, (1873) 21 W.R. (Cr.) 13 (India).
# A.I.R.1988 S.C. 835 (India).
# The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India).
# Singana Naga Nooka Chakrarao v. State of A.P., 2007 Cr.L.J. 3466 (India).
# H. D. Thoreau,Journal of Henry David Thoreau, Gibbs Smith, Boston: Houghton Mifflin (1906).
# K. I. Vibhute,“Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective, (2001) 6 SCC (Jour) 16,http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=941.
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
[(4) Nothing in this article or in clause (2) of article shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes.]
[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
# LAW COMMISSION OF INDIA 42ndREPORT.
# MALIMATH COMMITTEE REPORT ON THE CRIMINAL JUSTICE SYSTEM, 2003.
# A.I.R. 1954 S.C. 321.
# A.I.R. 1988 S.C. 835.
# 198. Prosecution for offences against marriage.—(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
(c) where the person aggrieved by an offence punishable under1[section 494 or section 495] of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father's or mother's brother or sister2[, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].
(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under3[eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
# SUBASHC. KASHYAP,CONSTITUTIONALLAWOFINDIA481 (Universal Law Publications 2008).
# 539 U.S. 558 (2003).
# Amartya Bag,Adultery and the Indian Penal Code: Analysing the Gender Neutrality of the Law, (Dec. 16, 2017, 19:06 PM), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1627649.