The son appears set to undo what his father did exactly thirty-two years ago. The father, then Chief Justice of India Y.V. Chandrachud, authored a judgment reaffirming that in cases of adultery only the man can be punished and the woman would not be liable even as an abettor. Last month, however, apparently differing with his father, Justice D.Y. Chandrachud, as part of a three-judge bench of the Supreme Court, agreed to re-examine the court-made law, dubbing it as ‘archaic’. The court accordingly issued a notice to the Centre on a Public Interest Litigation (PIL) challenging the constitutionality of Section 497 IPC dealing with adultery, read with Section 198(2) of the Cr.P.C.
Section 497 IPC says, “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.” Section 198(2) Cr.P.C. says that “… 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.”
Background
The petitioner’s counsel laid bare that the above provision was challenged thrice in the apex court in 1954, 1985 and 1988. He drew attention to the 1985 case of Sowmithri Vishnu v/s Union of India, in particular, wherein a four-judge bench headed by then CJI Y.V. Chandrachud while upholding Section 497 said, “It is commonly accepted that it is the man who is the seducer and not the woman. This position might have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the transformation which the society has undergone.”
The legal definition of adultery varies from country to country and from statute to statute. Though the modern trend is to decriminalize adultery, many cultures have historically regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery. In most cultures, both the man and the woman are equally punishable. However, according to ancient Hindu law, in ancient Greece and in Roman law, only the offending female spouse could be killed and men were not heavily punished. In India, as it stands, Section 497 makes only the man having sexual intercourse with a woman without the consent of her husband punishable while she cannot be punished even as an abettor.
Section 497 treats the married woman as a victim
Apparently irked by the Victorian provisions treating a married woman as her husband’s ‘subordinate’, the SC has taken a plunge to drop adultery as a criminal offence from the statute book. It would examine two aspects of the penal provision. One, why does Section 497 treat the man as the adulterer and the married woman as a victim? Two, the offence ceases the moment it is established that the husband connived or consented to the adulterous act. Does it mean that a married woman was the ‘property’ of her husband? Further, only a husband or the person in whose care the husband has left his wife can file a complaint under Section 497. The petition also challenges the validity of Section 198 (1) and (2) of the Cr.P.C. which deem only the husband to be an aggrieved party in offences against marriage like adultery.
Right against discrimination
Justice D.Y. Chandrachud paraphrased the petitioner’s arguments that the existing law invades gender-neutrality and it amounts to violation of women’s fundamental right against discrimination guaranteed under Article 15 when law “assumes a patronising attitude to women”.
Law Commission’s recommendation
The petitioner’s counsel argued that adultery can be committed only by a man which is not consistent with the present-day realities. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law Commission of India recommended redefining Section 497 to make women also punishable for adultery in view of changing social milieu. The Central Government accordingly sought the views of all the 30 states in the country on the subject. But this was not endorsed by the Indian Parliament.
Adultery is not cruelty under Hindu Marriage Act
The apex court had on three earlier occasions in 1954, 1985 and 1988, upheld the constitutionality of
Section 497 and ruled that adultery was not cruelty within the meaning of the Hindu Marriage Act. A bench of Justices KS Radhakrishanan and PC Ghose held that “…the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage, and failed to discharge his marital obligations, as such it would not amount to cruelty.”
Analysis of Section 497
Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. It clearly draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or a divorcee or even a married woman when her husband consents to it. When the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can prosecute only her adulterer. What is interesting is that Section 497 expressly states that the unfaithful wife cannot be punished even as an abettor. The offence of adultery therefore is an offence committed against the husband of the woman.
The constitutionality of Section 497 was challenged before the SC under Article 14 of the Constitution on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz, Sowmithri Vishnu and V. Revathi. In the case of Yusuf Aziz, the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution. In the cases of Sowmithri and V. Revathi, it was held that it is the policy of the law to not punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law and that adultery therefore was an offence against the matrimonial home.
It must be conceded that all these decisions had restricted their scope to the determination of constitutional validity of Section 497 as it stood on the statute book. These should not, however, be construed to assume whether Section 497 is required at all or not.
Adultery cannot be committed without a woman’s consent. Yet, the Section burdens the man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim. The Section, however, does not contemplate a situation where the same married woman has sexual intercourse with more than one person without her husband’s consent. It is highly plausible that even in such a situation the woman would be treated as the victim and not the person who provokes the offender. No doubt that the contours of the existing law need to be re-redrawn.
Why has the Supreme Court erred in the past?
Considering the limited question of constitutional validity before it, the ‘object’ of Section 497 was never agitated before the Supreme Court. The Court has, therefore, erred to the limited extent of holding adultery as an offence against the matrimonial home.
If adultery had been a matrimonial offence, the husband would neither have had the freedom to indulge in extramarital sexual relations with unmarried women nor would the consent of the husband of the woman make any difference. Adultery therefore is not an offence against the matrimonial home but against the husband himself. The way a person is not expected to enter the property of the other without his consent, no man is, likewise, expected to have sexual intercourse with someone’s wife without his consent. It uses the same analogy that is used for the offence of trespass.
Decriminalizing Adultery
Marriage is both sacrament and a civil contract. The spouses are and should be at liberty to choose their own terms of the contract. The National Commission for Women recommends that adultery should be made merely a civil wrong and the SC impliedly agrees that the husband and the wife should not strike each other with the weaponry of criminal law.
Many western countries have already decriminalised adultery.
It is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Sweden and even Britain from whom we have borrowed most of our laws. In the United States, in those states where adultery is still on the statute books, offenders are seldom prosecuted.
The object of making adultery an offence in India and restricting it to men alone was to deter men from taking advantage of women who were historically treated as the victims and not the authors of the crime. The definition of adultery in matrimonial laws is much wider in scope than the definition of adultery as a crime. Women have now begun to assert their own identity and are no more mere chattel. There is apparently no reason to retain adultery on the penal statute book since our personal laws are adequate to tackle adultery as a civil wrong. As it appears, the SC looks all set to look back to move forward in tune with the changing milieu worldwide.
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