Adultery: Who’s The Criminal Here?

Varun Pandit[1] & Devina Bhandari[2]

Topics Covered in this article

Abstract

“Marriage is a relation of two equals halves, who come together to make one whole, blessed by God”

Marriage is an institution, which symbolizes a relation between two equals, in which both partners are pillars of support to each other. However, the patriarchal mindset of our society has relegated not just married women, but womanhood to a subordinate status. It has even caused the barbaric practice of female genital mutilation to women, in some communities, who were then in their teens, to subdue their sexual desires and wants. Till recently, some of our laws perpetrated this patriarchal mindset, being archaic in nature and with no rationale what so ever. Section 497 of the Indian Penal Code was one such law, which impinged upon the right to dignity of women, and treated them as ‘possessions’ of men, thereby making it contradictory to Article 21 of the Constitution of India.

Strangely, Section 497 of IPC in its perception did not view a married man indulging in sexual intercourse with an unmarried woman, like infidelity. On the contrary, it viewed sexual intercourse in between a married man and a married woman as adulterous, if the said intercourse was without the consent of the husband of the married woman, with the adulterous woman, immune to prosecution by the law. This, however, was against the basic precept of gender neutrality too.

The Supreme Court in a welcome judgment, over turning its three previous rulings in the matter, declared Section 497 of the Indian Penal Code as unconstitutional. This was stated by none other than the CJI, Dipak Misra. Our research work will focus upon salient aspects of this landmark judgment and the much needed relief and sexual autonomy; it has accorded, not just to women but to men.

Introduction

The Indian Penal Code is the criminal code of India, which was drafted in 1860 under the Chairmanship of Lord Thomas Babington Macaulay. It came into force in British India in 1862 and was amended several times and supplemented by other criminal provisions. Section 497 of the Indian Penal Code, as we shall see hereinafter, failed to synergize with Constitution of India on account of Fundamental Right of both men and women. It caused the legal subordination of one sex with the other or in other words, subordinating a woman to a man or crowning the status of a husband as ‘The Lord Master’ and his wife a ‘Commodity’. Such a thought was abominable and conflicted with the core identity of a woman. Section 497 of the Indian Penal Code failed to recognize equality as the governing parameter.

Consequently, Section 198(2) of the Criminal Procedure Code was also struck down as a result. Notwithstanding, adultery will remain a ground for divorce, very rightly though.  The verdict of Supreme Court in striking down Section 497 of Indian Penal Code had categorically stated, that, “Any provision of law affecting individual dignity and equality of women, invites the wrath of constitution. It’s time to say that the husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong”[3].

Section 497 of the Indian Penal Code

Part III of the Indian Constitution enshrines the Fundamental Rights for citizens of India.  Fundamental Rights are the rights which are given to the citizens of India and the same cannot be tampered with/abrogated by any other law. Neither any other law can be enacted, which is against the spirit and the rights laid down in Part III of the Constitution. Article 14, which is contained in Part III of the Indian Constitution, pertains to “Equality before Law”. Article 14 states that “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”[4]. Similarly, Article 21 in the same part of the constitution pertains to “Protection of Life and Personal Liberty”. Article 21 says that “No person shall be deprived of his life or personal liberty, except according to procedure established by law[5]. A patriarchal society is a society, where men have more power over women and a male dominated power structure pervades throughout individual relationships and organized society[6]. In India’s patriarchal society, Article 14 and Article 21 of the Constitution are violated with impunity and because of such violations, women become the victims.

Also Read  Role of judiciary in maintaining rule of law

 Section 497 of Indian Penal Code of 1860 dealt with adultery. It treated a married woman as her husband’s subordinate rather than an equal. It treated a married woman as the property of a man. Thus, Section 497 of the Indian Penal Code was in perfect congruence with the patriarchal mindset of our society. Analyzing Section 497 of The Indian Penal Code it is said that,whoever has sexualintercourse with a person who is and whom he knows or has reason to believe to be wife of another man, without the consent or connivance of that man, 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 a case, the wife shall not be punishable as an abettor”[7]. So it tantamount to the fact that had the woman not been married, it was acceptable with the law and the man was within his rights to have had sexual intercourse with an unmarried woman. After all, the law herein had facilitated a woman to be used as a commodity. Furthermore, one could have asked, what if a single/married woman had sexual intercourse with a married man, without seeking the consent of his wife? Would the woman have been punished like a man for committing adultery?  The law was silent on this aspect. But our patriarchal society would perceive/perceives such a woman as one as ‘loose’, without morals and a single/married man having sexual intercourse with a married woman (with the consent of her husband) or with a single woman, as a ‘stud’, to be looked at with awe. Furthermore, as seen above, in an adulterous relationship, a woman was not blameworthy, despite her involvement, and the law granted her immunity. Why was it so? Why was it that under Section 497 of the Indian Penal Code, only the male was taken to be an abettor and married woman was not treated as an abettor, but only as a victim of adultery? Wasn’t it against the precepts of the much-debated gender equality and gross violation of Article 14 of the Indian Constitution?  It is pertinent to note that adultery as a crime has been abolished in all European countries, including England, which itself had enacted the law for our country, in a Victorian era.

Also Read  Competition Policy: Developing Countries Advantage

Therefore, this Victorian law not only supported the patriarchal mindset but was cogently anti- women, since a woman cannot complain against her adulterous husband, when he indulges in sexual intercourse with a married woman, with explicit permission/connivance with the other woman’s husband, and granted no such prerogative to a woman vice versa i.e. to indulge in a sexual relationship with a man after seeking consent of his wife. Therefore, in such cases a violation of Article 14 and Article 21 of the Indian Constitution was flagrant, therefore deeming Section 497 of the Indian Penal Code, unconstitutional by law. It is indeed commendable that the Supreme Court struck down the 158-year-old archaic Section 497 of the Indian Penal Code, sensing impropriety of the Section since it exempted a man from criminal prosecution, who had engaged in sexual intercourse with a married woman, even though with the consent/connivance of the married woman’s husband, and not sparing a thought for the married man’s wife. It was nothing but manifestation of arbitrariness of this Section, which was declared as unconstitutional by law and adultery today is no longer a criminal offence.

It is interesting to note that the story to strike down Section 497 of the Indian Penal Code started on October 2017, when Joseph Shine of Kerala had filed a Public Interest Litigation (PIL) under Article 32 of the Indian Constitution and challenged the constitution validity of the offence under Section 497 of the Indian Penal Code and Section 198(2) of Code Criminal Procedure, 1973. Therefore, on 27th July 2018, a five bench of a Supreme Court struck down Section 497 as it violated Articles 14 and 21 of the Indian Constitution.

Before striking down Section 497 of Indian Penal Code, the Supreme Court had overruled its three previous judgments regarding Section 497. The first judgment was delivered in 1951 in the Yusuf Aziz v State of Bombay[8] case, when the petitioner had filed a case challenging Section 497 of the Indian Penal Code and stated that Section 497 violates fundament rights guaranteed by Articles 14 and 21 of the Indian Constitution. In 1954, the Supreme Court had ruled that Section 497 is valid, stating that women escaping culpability under section 497 was constitutionally valid under Article 15(3) of the Indian Constitution. It also had stated that it observed men are seducers, unlike women. This arbitrary deduction of the Supreme Court regarding the character of men was misplaced and strange. In its second judgment, in the year 1985, in the Sowmithri Vishnu v Union of India[9] case, the Supreme Court reasoned that women could not be cast as an abettor under Section 497, in order to ensure that they could maintain the sanctity of marriage. The same reason was rendered by the court to deny the prosecution of husbands by affected women. In the same judgment, the Supreme Court had rejected the argument of bringing unmarried women in the purview of adultery law. The centre had citied the same judgment of 1985 in its 2018 affidavit to back Section 497 of Indian Penal Code. In 1988, the third judgment was passed by Supreme Court regarding adultery law in V Revathy v Union of India[10] case, wherein the Supreme Court held that women should not be prosecuted in adultery cases, to promote social good and giving second chance to couples to make up and keep the sanctity of marriage.

Also Read  When Ethnic Minorities Divorce in Multicultural Britain: A Survey of Legal Challenges with a Focus on the South Asian Experience

After deep introspection and keeping in pace with contemporary thought process, the Supreme Court, finally on 27th July 2018, through a five judge bench , which included Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra[11] ,held Section 497 of Indian Penal Code unconstitutional and struck it down. The judges had held that adultery law was archaical in nature, and had violated the right to equality and had deprived and destroyed women’s dignity. Chief Justice Dipak Misra and Justice A M Khanwilkar had noted that “Any provision of law affecting individual dignity and equality of women, invites the wrath of Constitution. It’s time to say that the husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong”. 

To synchronize with the judgment of Chief Justice Dipak Misra and Justice A M Khanwilkar, Justice R M Nariman gave a separate judgment wherein he stated that Section 497 is an antiquated law which has lost its logic. He noted that “Ancient notion of man being the perpetrator and woman being victim of adultery no longer holds good”[12].Supreme Court struck down Section 497 on the grounds that it was unconstitutional being violative of Articles 14, 15 and 21 of the Indian Constitution. Under Section 198(2) of Cr.P.C. which contained a procedure to be followed under Chapter XX of the Indian Penal Code, was also held unconstitutional, only to the extent, of its applicability to Section 497 of Indian Penal Code. Section 198(2) was also held unconstitutional as it was gender biased and only favored males.

It may be noted that although adultery is decriminalized, it being irrational and unconstitutional, it still remains a ground for divorce, and rightfully so. Furthermore, it was also rightfully clarified by the Court that if an act of adultery causes an act of suicide by an aggrieved spouse, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the Indian Penal Code.

Conclusion

Striking down of Section 497 of the Indian Penal Code by the Supreme Court on 27 July 2018, upturning its previous three previous judgments, was a watershed moment in the annals history of Indian judiciary. The Indian judiciary rightfully sensed the destruction of a women’s dignity, disrespect to her sexual autonomy and her subordinate status to her husband, perpetuated by Section 497 of the Indian Penal Code, and rightfully caused to strike it down. The Supreme Court judgment ibid, was indeed positive and feminist. Undoubtedly, Section 497 of the Indian Penal Code, which institutionalized gender discrimination and was nothing but just a codified rule of patriarchy. This Victorian perception has finally been laid to rest and its obituary was written.


[1] Student, B.B.A., LL.B. (H), Amity Law School, Amity University, Noida, UP

[2] Student, B.B.A., LL.B. (H), Amity Law School, Amity University, Noida, UP

[3] Mehal Jain, Husband is not the master of wife, Live law (27 Sept.2018, 11:08 AM) https://www.livelaw.in/husband-is-not-the-master-of-wife-sc-strikes-down-158-year-old-adultery-law-under-section-497-ipc/

[4] INDIAN CONST.art 14.

[5] INDIAN CONST.art 21.

[6] Linda Napikoski, Patriarchal Society According to Feminism, Thoughtco, (3 September 2018) https://www.thoughtco.com/patriarchal-society-feminism-definition-3528978

[7] The Indian Penal Code, 1860.

[8] Prabhash K Dutta,3 Past Supreme Court Judgments on Adultery Law (27 September 2018, 12:10 IST), https://www.indiatoday.in/india/story/adultery-law-section-497-3-past-supreme-court-judgments-1349993-2018-09-27

[9] Sowmithri Vishnu v. Union of India (1985) AIR 1618.

[10] V Revathy v. Union of India AIR 1988 SC 835.

[11] Joseph Shine v. Union of India (2009) 3 SCC 39.

[12] Supra note 3.