SECTION 497 OF IPC: DECRIMINALISATION OF ADULTERY
BY-TRIDIBESH DASGUPTA (HERITAGE LAW COLLEGE)
The Hon’ble Supreme Court of India gave a historic judgment in the case of Joseph Shine v. Union of India, wherein it decriminalized the British colonial-era provision that made Adultery a punishable offence under Section 497 of the Indian Penal Code, 1860. The decisions to criminalize or decriminalize adultery in India do not seem to be based on the established principles in the realm of criminal jurisprudence. It therefore leads to a variety of confusion and most discussion in this regard remains centred around personal opinions and conjectures. A bare reading of Section 497 of the Indian Penal Code, 1860 shows that it punishes the offence of adultery committed with a married woman “without the consent or connivance of her husband”. If an act of sexual intercourse takes place between a married man and an unmarried woman or with a widow or with a married woman whose husband consents to it, the offence shall not be deemed to have been committed. It is not required for the offender to have knowledge of whose wife the woman is, but he must know that she was a married woman.
The penal law on Adultery was against the interest of both the husband and the wife. Section 497 provided punishment for men committing adultery while a woman who was in pari delicto deemed to be innocent. It was also against the dignity of women since it regarded their husband as the master of his wife and objectified women as being the property of their husbands. This was ipso facto an unreasonable classification that was erroneously overlooked by the judiciary for many decades.
SECTION 149 OF THE INDIAN PENAL CODE: CRIMINALISED ADULTERY
The section under the scope of offence is limited to adultery committed with a married woman, and the male offender alone has been made liable to be punished with imprisonment, which may extend upto five years, or fine or with both. The willingness or consent of the woman is no excuse to the crime of adultery. Hence, adultery is an offence by a man committed against a husband in respect of his wife. Commission of the offence does not take place while a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow, or even with a married woman whose husband consents to it or with his connivance. Under section 497 of IPC, Adultery is limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. As mentioned earlier, the commission of the offence takes place only by a man who has sexual intercourse with the wife of another man and without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence, despite being a consenting party to the crime.
The proof of sexual intercourse is an essential element of the offence, however direct evidence is not often available and in most cases, it has to be inferred from the totality of circumstances. The woman must necessarily be a married woman and the absence of her husband’s consent or connivance to the sexual intercourse, or it will not be an offence of adultery and therefore, Section 497 of IPC will not be attracted. It is to be noted that the aggrieved party in the offence of adultery is the husband whose wife has consented to have sexual intercourse with some other person than her own husband. Under Section 198(1) of the Code of Criminal Procedure, 1908 it is provides that no person other than the husband of the woman shall be deemed to be aggrieved by an offence of adultery under section 497 or the Section 498 of IPC, provided that in the absence of the husband, some person who had care of the woman on behalf of the aggrieved husband, with leave of the court, make a complaint against the accused. However, the consenting woman (wife of the aggrieved husband) cannot be made an accused in the case as it has been stated in Section 497 of IPC that the woman who is a party to the offence of adultery will not be prosecuted as an abettor or a co- accused. The law considers the woman (wife of the aggrieved husband) as victim not as an author of the crime. However, under Section 497 of the Ranvir Penal Code, 1932 enforced in the State of Jammu and Kashmir (before abolition of Article 370 of the Indian Constitution) admits the participating woman in adultery is a co-accused along with the adulterer (person with whom she has sexual intercourse). As an abettor of the offence of adultery, she may also be prosecuted with imprisonment, which may extend to five years with or without fine. Gender discrimination is reflected by offence of adultery and provisions related to it. A large part of the offence hangs on the obnoxious idea that a woman is the property of the male. It is indicates that the section would not be attracted if the husband had sexual intercourse with an unmarried or divorced woman, let alone the fact that the wife could not prosecute the husband for the same. It is as if the husband has a free licence to commit adultery with an unmarried or divorced woman. These, in turn, raise many socio-moral objections.
LAW of ADULTERY IN OTHER COUNTRIES
The law of adultery does not have uniformity around the globe; it varies from country to country. It differs according to several factors, such as different religious norms, customs and attitude of the individuals. In different States of the United States, the law relating to criminal adultery reveal that three major formulations of adultery exist under state laws in the United States such as the common law view, the canon law, and the hybrid view. According to the common law view, the offence of adultery takes place only when the women is married and both husband and wife are held liable. Under the canon law view, offence of adultery is sexual intercourse of a married person with a person other than the offender’s husband or wife and only the married person is held guilty. According to the hybrid rule, followed in twenty states in the United States, if either spouse has sexual intercourse with a third part, both transgressors are guilty of offence of adultery. In the United Kingdom adultery is not a criminal offence. However, it is slightly punishable in some of the European countries such as France, a wife is guilty of adultery is punishable for a period ranging from three months to years’ imprisonment. However, it is at the discretion of the husband to put an end to her sentence by agreeing to take her back. The adulterer is punishable similarly. In Germany, if a marriage is dismissed because of adultery, the guilty spouse as well as the partner, is punishable with imprisonment for a term of not less than six months, but it has to be initiated by the aggrieved spouse by means of a petition through the prosecution. In Pakistan, the act or offence of adultery is viewed as an atrocious crime and both the man and woman are liable to punishment. However, in Malaysia, Singapore, Canada, Australia, Denmark, Hong-kong adultery is not an offence under the Penal Code. In Philippines, it is the married woman and not the husband is liable for adultery.
JUDICIARY’S EARLIER STAND ON CONSTITUTIONAL VALIDITY OF SECTION 497 OF IPC
In Yusuf Abdul Aziz v. State of Bombay,(1954) for the first time the law of adultery was challenged before the Supreme Court of India. The petitioner contented that the law violated the fundamental right of equality guaranteed by the Article 14 and 15 of the Constitution. It was observed by the Court that Section 497 of the Indian Penal Code is not ultra vires under Article 14, 15 and 21 of the Constitution on the ground that it is only the man, who is held accountable for adultery and not the wife with whom he has committed the offence of adultery. The wife is saved from the extent of the section and is not punished as an abetter. Further it was observed by the Court that sex is a reasonable and sound classification accepted under the constitution, which provides that State can make special provisions for women and children under Article 15(3) of the constitution.
In Sowmithri Vishnu v. Union of India, (1985) the court observed that the women’s consent in Section 497 of IPC is of no relevance. The provisions do not contravene any fundamental right the classification between man and woman made by law is not unfavourable. Further stated it is commonly accepted that it is the man who is the seducer and not the woman. The position might have undergone some change over the years, but it is at the discretion of the legislature to consider whether section 497 of IPC should be amended appropriately so as to take note of the transformation which society has undergone. Further it was observed by the court that the fact that a provision for hearing the wife is not contained in section 497 of IPC cannot make that section unconstitutional. True, section 497 of IPC does not contain a specific provision for hearing the married woman, but that does not justify the proposition that she is not entitled to be heard at the trial, if she makes an application to the court to that effect.
DECRIMINALISATION OF ADULTERY IN INDIA: JOSEPH SHINE v. UNION OF INDIA
In Joseph Shine v. Union of India, writ petition was filed under Article 32 of the Constitution of India challenging the validity of Section 497 IPC, 1860. It came before a constitutional court consisting of Dipak Misra CJI and RF Nariman, AH Khanwilkar. DY Chandrachud and Indu Malhotra JJ that struck down as unconstitutional a 158 year old section 497 IPC, 1860 that punished a married man for adultery if he had sexual relationship with married woman "without the consent or connivance of her husband", but said adultery could continue to be a ground for divorce rebutting the argument that section 497 IPC worked as a deterrent against spouse going astray. Of course adultery could continue to be ground for aggrieved spouse to seek divorce and if one of the uses commit suicide because of the unfaithful nature of hes/his partner, then the culprit could be proceeded again for his crime of abetting suicide under section 306 IPC, 1860, The Supreme Court tested section 497 on the touchstone of the constitutional provision dealing with right to equality guaranteed under Article 14 that guarantees against arbitration and discrimination, with Chandrachud and Malhotra JJ using privacy, individuals autonomy and precede choice as yardsticks of legality. The decision finally puts India at par with many European and Asians precede choice countries such as China, Japan, Australia and Brazil where adultery is not a criminal offence Misra J writing the judgment for himself and Khanwilkar said section 497 violated right to equality, discrimination on ground of sex and right to life under Articles 14, 15 and 21 of the Constitution here at it punishes only the married man, as woman could not be punished. There could not be husband's monopoly over wife, says Mishra CJI.
In Para 3 of the Joseph Shine v. Union of India, the Supreme Court clearly lays down that
1. The women cannot be considered as a property of men in the modern progressive jurisprudential parameters and expansive constitutional vision.
2. In the relationship between a husband and wife, it is improbable to allow a criminal offence to enter and make a third party culpable.
PATRIARCHAL MONARCY OVER WOMEN NOT ACCEPTABLE
In Para 36 of the Joseph Shine’s case the Apex Court declares that there cannot be a patriarchal monarchy over the daughter as well as husband’s monarchy over the wife. Male dominance is unacceptable in today’s scenario. The provisions as contained under section 497 of IPC indicate that women are treated as subordinate to men. It is further laid down that when there is consent of the man to develop relationship outside the wedlock then there is no offence. This provision treats the woman as a chattel. Moreover, it treats her as the property of man and women can act according to the wiliness of her master. It is a reflection of the social patriarchal dominance.
An analysis of Section 497 of IPC along with the various observations by the Supreme Court of India and High Courts, bring us to the conclusion that only a man can commit adultery. The married woman who is involved in the conduct is not punishable as the adultery. The married woman who is involved in the conduct is not punishable as the adulterer, because she is treated as a “victim”, because she has no entity and she is a non-person. The section negates the free will of the woman in adulterous conduct and does not concern itself with the intentions behind her act. Further, women whose lives are affected by the crime of adultery the aggrieved wives if the adulterer is married are not deemed to be necessary and interested parties in the trial or in its criminal consequences. This is because the woman is looked upon as an object, an inanimate property, whose rights are almost transferable. Property on its own has no legal existence. Moreover, if a married man has sexual intercourse with an unmarried woman it is no adultery because an unmarried woman does not belong to anybody as property and is not owned by anybody, not even her parents or brother because they hold her in trust and have no ownership rights to prosecute the person. man The makers of the law seemed to have thought that the sanctity of matrimonial home would be violated if either of the parties resorts to adultery. The law is thus blatantly biased against the woman. It has put the man in a privileged position by treating the relationship between husband and wife as one of the owner and owned, treating woman as a nonperson and an object, giving her the status of property. The Supreme Court has declared the 150 years old law on adultery as unconstitutional, which treats a husband as the master. The then Chief Justice of India declares, “The adultery law is arbitrary and it offends the dignity of a woman.” and gave a loud and clear message that male dominance is unacceptable in today’s scenario. Adultery might not be the cause of an unhappy marriage however; it could be the result of an unhappy marriage. Along with Section 497 of IPC, Section 198 of the Code of Criminal Procedure was also declared unconstitutional thereby.
2. Indian Penal Code, 1860
3. Yusuf Abdul Aziz v. State of Maharashtra, AIR 1954 SC 321:1954 SCR 930
4. Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618 : 1985 Supp SCC 137
5. Text Book on Indian Penal Code, KD Gaur
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