Page 45 - English Tehelka Issue 3&4

coLumn LEGAL

Adultery Law: SC looks occasions in 1954, 1985 and 1988,

upheld the constitutionality of
back to move forward Section 497 and ruled that adultery
was not cruelty within the meaning
of the Hindu Marriage Act. A bench
of Justices KS Radhakrishanan and
The top court is being wise in attempting to change laws with progressing PC Ghose held that “…the mere fact
in focus times, such as the archaic adultery law that treats a woman as her that the husband has developed
some intimacy with another, dur-
husband’s property
Ashok kumAr ing the subsistence of marriage,
and failed to discharge his marital
YAdAv he son appears set to undo Background obligations, as such it would not
what his father did exactly The petitioner’s counsel laid bare that amount to cruelty.”
thirty-two years ago. The the above provision was challenged
Managing Editor of father, then Chief Justice thrice in the apex court in 1954, 1985 Analysis of Section 497
Synergy Media. He is a of India Y.V. Chandrachud, and 1988. He drew attention to the 1985 Section 497 penalizes sexual in-
Civil Servant-turned- T authored a judgment reaf- case of Sowmithri Vishnu v/s Union of tercourse of a man with a married
Legal Consultant, firming that in cases of adultery only the India, in particular, wherein a four- woman without the consent of her
Political Analyst and man can be punished and the woman judge bench headed by then CJI Y.V. husband when such sexual inter-
a Columnist. He is would not be liable even as an abet- Chandrachud while upholding Section has taken a plunge to drop adul- adultery can be committed only course does not amount to rape. It
presently working on tor. Last month, however, apparently 497 said, “It is commonly accepted that tery as a criminal offence from the by a man which is not consistent clearly draws a distinction between
a book differing with his father, Justice D.Y. it is the man who is the seducer and not statute book. It would examine two with the present-day realities. The consent given by a married woman
Chandrachud, as part of a three-judge the woman. This position might have aspects of the penal provision. One, Report of the Malimath Committee without her husband’s consent and
bench of the Supreme Court, agreed to undergone some change over the years why does Section 497 treat the on Criminal Justice Reforms and the a consent given by an unmarried
re-examine the court-made law, dub- but it is for the legislature to consider man as the adulterer and the mar- 42nd Report of the Law Commis- woman. It does not penalize the
bing it as ‘archaic’. The court accordingly whether Section 497 should be amend- ried woman as a victim? Two, the sion of India recommended rede- sexual intercourse of a married
issued a notice to the Centre on a Public ed appropriately so as to take note of the offence ceases the moment it is fining Section 497 to make women man with an unmarried woman
Interest Litigation (PIL) challenging transformation which the society has established that the husband con- also punishable for adultery in or a widow or a divorcee or even a
the constitutionality of Section 497 IPC undergone.” nived or consented to the adulter- view of changing social milieu. The married woman when her husband
dealing with adultery, read with Section The legal definition of adultery var- ous act. Does it mean that a married Central Government accordingly consents to it. When the offence of
198(2) of the Cr.P.C. ies from country to country and from woman was the ‘property’ of her sought the views of all the 30 states adultery is committed, the husband
Section 497 IPC says, “Whoever has statute to statute. Though the modern husband? Further, only a husband in the country on the subject. But cannot prosecute his unfaithful
sexual intercourse with a person who trend is to decriminalize adultery, many or the person in whose care the this was not endorsed by the Indian wife but can prosecute only her
is and whom he knows or has reason to cultures have historically regarded husband has left his wife can file a Parliament. adulterer. What is interesting is that
believe to be the wife of another man, adultery as a crime. Jewish, Islamic, complaint under Section 497. The Section 497 expressly states that the
without the consent or connivance Christian and Hindu traditions are all petition also challenges the validity Adultery is not cruelty under unfaithful wife cannot be punished
of that man, such sexual intercourse unequivocal in their condemnation of of Section 198 (1) and (2) of the Cr.P.C. Hindu Marriage Act even as an abettor. The offence of
not amounting to the offence of rape, adultery. In most cultures, both the man which deem only the husband to The apex court had on three earlier adultery therefore is an offence
is guilty of the offence of adultery, and and the woman are equally punishable. be an aggrieved party in offences committed against the husband of
shall be punished with imprisonment of However, according to ancient Hindu against marriage like adultery. the woman.
either description for a term which may law, in ancient Greece and in Roman As per the The constitutionality of Section
extend to five years, or with fine, or with law, only the offending female spouse Right against discrimination existing law, 497 was challenged before the SC
both. In such case the wife shall not be could be killed and men were not heavi- Justice D.Y. Chandrachud para- under Article 14 of the Constitu-
punishable as an abettor.” ly punished. In India, as it stands, Section phrased the petitioner’s argu- adultery isn’t tion on the grounds that it makes
Section 198(2) Cr.P.C. says that “… no 497 makes only the man having sexual ments that the existing law invades an arbitrary discrimination based
person other than the husband of the intercourse with a woman without the gender-neutrality and it amounts a crime if the on sex in the cases of Yusuf Aziz,
woman shall be deemed to be aggrieved consent of her husband punishable to violation of women’s fundamen- woman’s husband Sowmithri Vishnu and V. Revathi.
by any offence punishable under Sec- while she cannot be punished even as tal right against discrimination In the case of Yusuf Aziz, the Court
tion 497 or Section 498 of the said Code: an abettor. guaranteed under Article 15 when gives his consent. ruled that the immunity granted
Provided that in the absence of the hus- law “assumes a patronising attitude It says women to women from being prosecuted
band, some person who had care of the Section 497 treats the married to women”. under section 497 was not discrimi-
woman on his behalf at the time when woman as a victim can only be natory but valid under Article 15
such offence was committed may, with Apparently irked by the Victorian Law Commission’s victims and never (3) of the Constitution. In the cases
the leave of the Court, make a complaint provisions treating a married woman recommendation of Sowmithri and V. Revathi, it was
on his behalf.” as her husband’s ‘subordinate’, the SC The petitioner’s counsel argued that abettors held that it is the policy of the law to

Tehelka / 28 february 2018 44 www.Tehelka.com Tehelka / 28 february 2018 45 www.Tehelka.com

44-46 Column-Ashok Yadav.indd 2-3 12/02/18 3:46 PM