This article has been written by Varnik Yadav, a second-year student from Gujarat National Law University, Gandhinagar. The author discusses the implication of section 497 of IPC on the women and the merits of decriminalizing “Adultery” as an offence.
Adultery – the word which is derived from French word “avoture”, which has derived its origin from a Latin verb “adulterium” which means “to corrupt” and in layman language means when the wife had consensual sex with a men rather than her husband and according to the law it is defined in section 497 of IPC.
Its history belongs to Hammurabi code 1750 B.C but the history of adultery in India became relevant from 1837 when the law commission was enacted in 1837 under the mentorship of Lord Macaulay, it was observed that it is a private offence which can be settled with compromise between both the parties and not a criminal offence but this was later trashed down by the later constituted law commission. Thereafter, it was enacted in 1860 and is a pre-constitutional law.
Adultery as an offence
A law that was made and enacted at a time when women didn’t have any rights of their own and were treated as the property of their husband. But thereafter in later years it was placed in as section 497 of IPC as a compoundable offence (which means the compromise between the parties and the charges can be dropped against the accused) , a non-cognizable( a person cannot be arrested without an arrest warrant) and a bailable offence under section 497 of Indian Penal Code ,1862 which defines “Adultery” as follows.
“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 a case, the wife shall [not] be punishable as an abettor. It is a type of compoundable offence which means that if a compromise has arrived between both the parties, then the charges can be dropped against each other. Section 198 of CrPC deals with the “person aggrieved”. Section 497 IPC and 198(2) CrPC deals a package to deal with the offence of adultery. But now it is struck down in the latest judgment on 27th September 2018 in case Joseph Shine vs Union of India in which it is decriminalized now. Honourable ex-chief justice Dipak Mishra passed the leading judgement.
Though, it continues to be a civil wrong and a ground on which divorce can be filed. The offence of adultery is deemed to be committed if all the following ingredients are fulfilled.
1) Sexual intercourse takes place between a woman and a man who is not her husband.
2) The man who is not her husband and involved in the intercourse know or has the reason to believe that she is married, i.e. wife of some other man.
3) Such sexual intercourse should be fully consensual so that it should not full under the category of rape.
4) Sexual intercourse must take place without the consent or knowledge of the husband.
The law which looks like a law against men but only at first blush as the offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section expressly provides “that the wife shall not be punishable even as an abettor because the thought of the law, obviously is that the spouse who is engaged with an unlawful association with another man is an unfortunate casualty and not the creator of the wrongdoing, but the reality is that it was always against the women protecting men for their romantic paternalism which stems from the assumption that women, like chattels, are the property of men”.
Consequences of the Law
Women were always on the disadvantaged side. Lord Keith declared that marriage in modern times is regarded as a partnership of equals and no longer one in which the wife must be the subservient chattel of the husband. In this contemporary world, this is something which needs to spread and understood to adapt to the upcoming changes in the society. Women have always faced the inequality in laws and this law too treats married women as being devoid of agency and chattel to their husbands. This law is also a legislative package of flaws working against women which have been stated as follows.
1. It recognizes husband’s rights over that woman’s body more than her own – according to this provision if the husband is pimping out the wife to other men then there can be no charges against the husband. No case of adultery can lie if the man has the knowledge about the intercourse between his wife and the guy she is having intercourse with. In some sense, it is also like endorsing martial rape, but the only difference is that the person raping the women is not her husband but some other man who has been granted the permission by her husband.
But this needs to be remembered that he is the husband, not the owner of her body. A person does not handovers his or her total rights to his/her companion and throughout their lives, even though they are married. And in this modern world on one hand where we are criminalizing sex between two people even before they attain the age of 18 as a crime and on the other hand there is the law where we are giving the husband a right over her property and promoting some kind of guilt-free pass for martial rapes. Thus, this is a law which challenges the sanctity of marriage, one of the purest bonds of society.
2. A married woman does not have the same recourse to apprehend her husband if he commits adultery with an unmarried or widowed woman or a prostitute. In this sense section, 497 is a flagrant instance of gender discrimination ‘legislative despotism’ and ‘male chauvinism’. The flawed part of law can be understood through this simple example, suppose that A(a male) has an intercourse with B’s wife so B now has the right that he can sue A for adultery but A’s wife has no right and she cannot sue A as well as B’s wife for adultery which is against article 14 as it doesn’t provide the equal right to women just like it provides the right to sue to man.
It violates article 15 as it discriminates between male and female rights by giving the upper hand to male. It also violates article 21 of the Indian Constitution by creating invidious distinctions based on gender stereotypes, and it creates and causes harm to the woman’s dignity and social image in society. And it also violates the woman’s right to privacy, first by taking away her right to choose her sexual partner as it is a reflection of choices one makes.
By stopping this consensual type of relationship and criminalizing it, this law is interfering in her privacy and violating it. And any law which goes against article 14, 15 and 21 which includes right to privacy as a fundamental right, and thus if any act that goes against and infringes the fundamental right of an individual faces frown of the constitution just like the fate of this law has been as it got decriminalized by the Supreme Court.
3. Also during the period of divorce when the wife no longer cohabits with her husband and have obtained a decree for judicial separation, preparatory to a divorce being granted. If during this period if she has sex with a man other than her husband, then it will be treated as an offence.
4. The language of the law gives us an understanding as if the man has given his wife the permission to have sexual intercourse outside their marriage believing that she is her property and the sanity of the marriage won’t get destroyed as the phrase in section 497 of IPC clearly states “that the consent or connivance of that man”, which is absolutely false. The phrase that the consent or connivance of that man means that it is an offence only when the husband’s consent hasn’t been obtained and the thing that needs to be questioned is that why it doesn’t provide the wife with this equal right to decide.
5. To extent of the supposition of the court that ”the law licenses neither the spouse of the culpable wife to indict his significant other nor does the law allow the wife to arraign the culpable husband for being backstabbing to her” is concerned then why the assent of the husband and not of the wife is given importance in determining the offence.
6. A man can come and invoke this criminal section of the Indian Penal Code to ensure that her wife is loyal to her and to the marriage but no such right to protect her marriage is granted to the wife and basically tells us a story that the sexual life of the woman is controlled by her husband after marriage but wife can have no control over her husband and protect her marriage, and the law has no sections to do the same.
The above points help us to find out how discriminatory this law is against wife. It is not wrong to say that men do have a certain right over her wife after the marriage that is conjugal rights, but it doesn’t mean that he has got some ownership rights over his wife’s life, deciding her sexual future and moulding it the way he wants. Where he has the power that he can, he can even give rape the name of consensual sex by just giving permission the other person to have sex with her wife.
This law has been treated discriminatorily in many countries and accordingly International trends also point in this direction that many countries like Germany, Brazil and Japan(countries which have developed and understood that for the development of countries it is important to pass on equal rights to men and women both ) have struck down this law but some countries like Pakistan, Afghanistan and Iran (countries that are still running as patriarchy society and male importance is above all and run by Islamic law) has retained this law as are still in the opinion that it is a crime and then there are some countries which have retained this law that is they have decriminalized it but yet have it just for the purpose that it can be used as a ground for divorce as India has retained it.
With the flaws and understanding of this section, it is right to dispose off the criminal part of the law, as when both male and female have the right to make choices independently for sexual partner and that too consensual relationship so they must not be held responsible for their independent choices and be treated as criminals because something is done with consensus between two adults cannot fall under bracket of crime. The correct course has been taken which is done by dispensing with this archaic provision altogether and decriminalizing, but some law scholars say that it should be retained as a ground of divorce although, it is a consensual relationship. Still, it is hurting the fidelity and sanctity of marriage and the aggrieved person. Some legal philosophers even say that the main purpose of the marriage is that both the partners shall remain loyal and Fidel to each other and if the offence of adultery is committed by any partner then the whole concept of marriage stands frustrated.
Therefore, the person who has been cheated upon should have this as the base to take divorce from that person. And it is true that this section serves no real purpose in the criminal statute. A law which has always been hurting the fundamental rights of the wife that is article 14, article 15(1), article 21 and also which has disturbed the sanctity of the most significant bond, has been rightly struck down in the judgement. Thus, Justice has been served on the women by quashing down section 497 of the Indian Penal Code.