In this article, Astha Mishra discusses Biases of Adultery laws in India.

INTRODUCTION

“Infants have their infancy; adults, adultery.”-David Philip Barash

The law of the land as laid in the Indian Constitution envisages equality before the law and equal protection of the law for its entire citizen that includes both the sexes. Yet the archaic law on adultery as laid in Section 497 is one of the six sections in chapter XX of the IPC, entitled “Of Offences Relating to Marriage” does not adhere to this one fundamental rule.

Under Section 497 of the Indian Penal Code,

“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.”

Adultery is a term that describes any form of mixing of impurity. In other words, if Simranjeet is married to Kuljeet, and Simranjeet has an affair with Rajdeep, then Kuljeet can bring charges against Rajdeep, but Simranjeet will not be charged with the same offence. Although adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law in its current form criminalizes only one form of adultery.

It is illegal only if a man has sexual intercourse with a woman who is married, and he does not have the consent of the husband of the woman for the sexual activity. The women herself is denied by any agency, and this includes the wife of the adulterer, who can take no action against her husband.

When taken literally, the words of this law state that women are not to be charged with adultery, even when they are willing and equal participants in the act – hence it has been the subject of various debates, with some contesting that it seems to be ‘protecting’ women, and is, therefore, unfair to men. Although, Adultery is a solid ground for divorce under every personal law. Therefore, a husband can seek a divorce from an adulterous wife.

THE INHERENT BIASES

Since time immemorial women have been subjected to the males, as referred in Manusmriti a woman is subjected to her father than to her husband and later in life to his son, thus making her an object under the control of the males. This patriarchal character is still well embedded in our society even in the modern days.

The charges of adultery can be brought only during the subsistence of a legal marriage. The law while criminalizing adultery as a penal offence was not concerned with the ethical, moral or with the sanctity of the institution of marriage rather at the time when it was criminalized in 1860 by the British it was done under the pretext that women were the property of the husband and the husband had complete right to control that property in the ways that best suit their interests. Now examining the reasons behind why the institution of marriage came up in the society, it came into existence as a means to secure a man’s property even after his death, men wanting to retain it( their material property) throughout there lifetime and beyond. It was only possible if they had a check system on the purity of their bloodline and hence ensuring that their property was inherited by the right person.

Further criminal intercourse with married women would lead to adulterate the issues of the children born out of such relationships, thereby burdening the woman’s husband to support and provide for ‘another man’s children’. Hence to maintain the chain of inheritance the purity of the bloodline was necessary and to accomplish that the offence of adultery was criminalized.

Further the framer of the provision looking at the social situation prevailing at that time in the Indian society where women were already on the weaker subjugated side cogitated of not including it as a penal offence.

The Law Commissioners in their Second Report on the Draft Penal Code, however, took a different view, Macaulay view had been that-

“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;

Firstly, that all the existing laws for punishment were at that time inefficient from preventing the husband who usually belongs to the elite class from taking the law into their hands and propounding the judgment.

Secondly, that in a very few instances a person of the high caste and class would resort to the law for bringing the charge on the grounds of adultery in order to protect his honor lastly the husband who have recourse in case of adultery for redress to the court 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 merely as a loss of a menial whom they cannot easily replace, and that generally their principal object is that the women may be sent back. These things being so there is no purpose that the act provides and hence it would be best to include it under the civil offence.”[1] Further, Macaulay was convinced that since polygamy was an everyday affair at that time, the wife was socially conditioned to accept her husband’s adulterous relationship. She neither felt humiliated nor was it a culture shock for her.

Disfavouring the Macaulian perception of adultery but placing heavy reliance upon his remarks on the status of women in India, they concluded:

“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 woman, 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.”[2]

THE FLAWED REASONING

This was the very idea of including the offence of adultery under the penal code, thus leading to the following flaws and loopholes in the law in its applicability with reference to the present times.

1. The law makes it an offence only with regards to the other men who is an outsider in the marriage and the husband can bring the charges against him in the court of law but the wife who is also an active and equal accomplice in the offence is not penalized. Moreover, this provision only punishes a man, therefore, assuming that a woman is incapable of thinking and taking responsibility for her own actions. Another point of this provision that may be worth pointing out is that in cases where a married man indulges in sexual intercourse with an unmarried woman, the man cannot be charged with adultery although his wife and the unmarried woman are helpless victims of his act.

This is essentially saying that if a man’s property is defined by another, the man can punish the offender – the woman here is reduced to mere property. This was reinforced in the case of Sowmithri Vishnu v. Union of India[3] – where Sowmithri, whose lover was prosecuted for adultery, contended that the law was gender biased. Despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought and therefore has no agency.

2. Sexual intercourse with a prostitute, unmarried woman or a widow would not fall within this section and hence the husband who is committing infidelity and adultery cannot be charged under the offence since adultery can be committed only with another’s wife thus indicating that a women who is unmarried, prostitute or widow is no one’s property.
3. The charge of adultery can be brought only by the husband and not by the wife.
4. The consent does not have any part in the offence – This also implies that the wife who had consented to an adulterous relationship does not have the freedom to come out of her marriage and make a new life with her new partner even if she is oppressed in her present one. In other words, this suggests that she is brought back to the husband she wants to leave but fails to because the legal statutes, by simply ignoring her will because she is a woman, forces her to stay in a marriage she may not want to remain in.
5. Adultery committed by an Indian woman, across boundaries of language, culture, education and economic status, may often be more a question of seeking security and self-esteem than love or sex beyond the parameters of marriage. It might perhaps be a search for confidence and self-assurance which a boring marriage to an indifferent spouse has destroyed.[4] If the women is below 16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute rape.
6. Section 497 is indeed not to protect the rights of the women.
   • No wife can bring the charge against her husband and his lover. But at the same, the husband can bring the charge against his wife’s lover.[5]
   • The court regarded it as a “legislative packet”[6] designed to “deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit… It does not arm the two spouses to hit each other with the weapon of criminal law.”[7] Ultimately, the Court concludes that “even-handed justice” was meted out to both parties.[8]
   • If the husband has sexual intercourse with the wife of some other man, with that man’s consent in that case to the charge of adultery cannot be brought.

Lastly, the section does not even provide any provision or relief which enables the court to hear the women against whom the husband brings charges of having indulged in an extramarital affair. Hence the section was enacted basically for the protection of the rights of the husband. The point is whether intercourse with an unmarried, prostitute and widow makes less of the offence of adultery and hence less guilty of breaching the trust of the wife.

In the present scenario is it reasonable to include adultery as a criminal offence.

The code provides punishment of 5 years imprisonment to the lover of the wife. The fact that the two individuals who are adults with their consents who have indulged in a private activity of intercourse should be penalized.

Crime as has been definedas, A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.[9]

As J.S. Mills propounded under the harm principle that any conduct on the part of any individual that hampers threatens the rights of the others in the society should be under state sanction and control. Here the act of the husband or the wife of adultery though leads to the breach of trust of the marriage, the sanctity is dissolved and such an act is not morally permissible in any society yet is not of such a nature that a penal punishment of 5 years is required. Further, the argument that the law leads to deterrence and hence preserve the institution of marriage holds no more good a ground to allow this callous provision to sustain in the present times. One cannot in the present times force two individuals who are adults to live under one roof be happily married when the essence of the marriage is lost.

The last resort principle[10] provides the resort of filing a case for divorce to both husband and wife on the grounds of adultery and since the civil remedy is present, of dissolving the marriage the criminal remedy is not necessary.

CONCLUSION

The 42^nd Law Commission report recommended to include the women under the purview of the law making it gender neutral.[11] In 2003, the Committee on Reforms of the Criminal Justice System [Malimath Committee] published its Report.[12] It maintained support for the Law Commission proposals to not repeal the offence, but to equate liability for the sexes,[13] for it observed: the object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband)”.[14] A decade has passed since this Report, but there has been no activity in the Legislature to incorporate its proposals.

Hence the legislators need to decriminalize the section as adultery is no threat to the society. Thus respecting individual’s rights to privacy, equality and right to live with dignity.

Just recently, Justice SN Dhingra of Delhi High Court said :

“ We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. Does this concept of equality not apply in case of adultery also? Are women a child, baby, an insane or suffers from some other infirmity that anyone can easily take her for a ride? Even if she is highly educated then also she is granted blank cheque of having free sex and not be held liable and face punishment for the same! This is most despicable, to say the least. A crime is a crime.If women can be punished for murder, theft and other offences then why not for adultery also? Time has come when this gross injustice perpetrated on men alone is rectified suitably and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.”

References

[1] Macaulay’s Draft Penal Code (1837), Notes, Note Q, pp. 90-93, cited from, Law Commission of India, Forty-second Report: Indian Penal Code (Government of India, 1971), para 20.13.

[2]Second Report on the Draft Indian Penal Code (1847), pp. 134-35, cited from, Law Commission of India, Forty-

second Report: Indian Penal Code, id., p. 365.

[3] Sowmithri Vishnu v. Union of India, (1985) Supp. SCC 137.

[4] Chatterji, A Shoma, The price of adultery, the tribune, Saturday, January 20, 2007.

[5] V. Revathi v. Union of India, (1988) 2 SCC 72.

[6] V Revathi, at para 2-3.

[7] V Revathi, at para 5.

[8] V Revathi, at para 5.

[9] http://legal-dictionary.thefreedictionary.com/Criminal+Law.

[10] Douglas Husak, The Criminal Law as Last Resort, 24(2) OXFORD JOURNAL OF LEGAL STUDIES 207 (2004).

[11] LAW COMMISSION OF INDIA, 41ST REPORT: CODE OF CRIMINAL PROCEDURE, 1898 (1969).

[12] REPORT OF THE COMMITTEE ON REFORMS OF CRIMINAL JUSTICE SYSTEM (2003).

[13] Id.

[14] Id.