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ABSTRACT

Marriage in India is often referred to as a sacred relation which is pure and cannot be messed with. The idea of adultery is based on this philosophy that the sanctity of marriage cannot beadulterated by a third party. Though the idea to an extent was interesting and was in place to protect the sanctity of marriage, but this law was flawed to its core.

Section 497 of IPC wasvague and patriarchal in its essence. The law has been in question for a very long time. But changing attitude of society towards marriage and the demand for gender neutral laws has pushed the Supreme Court of India to take a step in this regard and give a remarkable decision.

INTRODUCTION

The meaning of adultery differs from State to State, but it can be understood as ‘sex between a married person and somebody who is not his/her wife/ husband’.

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The Indian Constitution has been successful in various aspects to keep up to changing times but the Indian adultery law was still breathing the air of ancient times. The Indian law defined adultery in the most bizarre form. The Indian Penal Code(IPC) under Section 497 define adultery as,

“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 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”.

The recent times has seen a drastic change in the notion of marriage and privacy of individuals. The Supreme Court recently admitted a petition of to wipe out adultery from criminal statutes ie. Section 497 IPC and 198(2) CrPc.

PRIOR JUDICIAL OPINION

The loopholes in Section 497 were long seen by the legal minds and various petitions were filed to review these shortcomings in the law. It was challenged various times for its discriminative nature and inconsistent language.

Yusuf Abdul Aziz v The State of Bombay, the appellant, who was being sued for adultery, filed a petition, to determine the constitutional inconsistency between Article 14 of the Indian Constitution (Right to Equality) and Section 497 of IPC. The Supreme Court held that the appellant overlooked article 15(3) of the constitution which is a special provision for women.

Sowmithri Vishnu v. Union of India, it was contended that Section 497 was violative of article 14 of the constitution as it unjustifiably denies to women the right which is given to men as it:
i) conferred upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the women with whom her husband has committed adultery.
ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and
iii) does not take in its ambit the cases husband has sexual relations with unmarried women, with the result that the husbands have a free license under the law to have extramarital relationship with unmarried women.

Supreme Court further observed – “We hope this is not too right but an underinclusive definition is not necessarily discriminatory. The alleged transformation in feminine attitude, for good or bad, may justly engage the attention of law makers when reform of penal law is undertaken. They may enlarge the definition of ‘adultery’ to keep up the pace with the moving times. But until then law must remain as it is. The law, as it is, does not offend either article 14 or article 15 of the constitution.”

V. Revathi v. Union of India, the petitioner contended that the law creates a disability for a wife to file a case against the cheating husband or the woman her husband is cheating on her with. The apex court held: “The community punishes the ‘outsider’, who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses, subject to the rider that the erring ‘man’ alone can be punished. There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband.”

In the recent petition of Joseph Shine the petitioners also referred to the case of W. Kalyani v. State through Inspector of Police and Another, wherein a two-Judge Bench of this Court, after referring to the provision, observed that the provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.

WHERE DIDTHE DEARTH LIE

The adultery law was outdated and damaged entirely.  The judiciary itself was not able to recognize which party it is actually benefiting. Section 497 in its whole language wasambiguous and pared the notions of equality. The law making men alone prosecutable for adultery and always treating the women involved as victims appears prima facie “archaic” and even conducive to “subordination” of women. The intention that ‘woman is not to be considered as adulteress’ needs to change in the society as it is the need of the hour in sexual harassment laws also.

Adulteration refers to the mixing of an undesirable substance in an otherwise ‘pure’ element, hence the parallels drawn between the husband, whose bloodline has been ‘adulterated’ by the outsider, gives some idea to the origin of the law. The husband has been cheated of his right to a ‘pure’ bloodline, and under the above terms, he should receive some measure of protection under the law.

The Section was also violative of Article 14 and 15 of the Constitution. The gender discrimination aspect kicked in as S.497 of the IPC which makes it a criminal offence for a man to have a sexual relationship with a married woman, grants immunity to the woman involved. Here though the act is carried out with the consent of both the adults, yet only one of the parties is prosecutable while the women enjoy absolute immunity. Further, there also exists a disparity of the right even under S.198(2) of the CrPC which denied a wife the right to prosecute her adulterous husband, reserving this power only for the husband of the woman involved in the relationship. So, only the husband of the woman involved enjoyed the right to prosecute while the wife of the involved man had no alternative to take any action. In short, the law stated that only a man could file a case of adultery and that too against a man with whom his wife hadsupposedly slept with. So, in crux, a woman could neither file a case of adultery, nor could she be prosecuted on the ground of adultery. This shoved gender discrimination both ways, that is, it discriminates against men and women.

In 1971, the Fifth Law Commission recommended changes in the provision, including making the law gender-neutral and reducing the prison term from five to two years. Those recommendations were also ignored. In 2003, the Malimath Committee, constituted by the Union home ministry, declared that “there is no good reason for not meting out similar treatment to a wife who has sexual intercourse with a married man.” So, instead of confining itself to anyone who has sex with “the wife of another man”, the Malimath Committee said that Section 497 should penalise anyone who has sex with “the spouse of any other person”. 

More specifically, this law could be seen as a theft of a man’s wife. The woman’s own agency and rights were ignored. This was reinforced in the case of Sowmithri Vishnu v. Union of India – 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. Meaning, the law simmered down to nothing but the “bro code”, aproprietorship dispute between men.

This law was very restrictive in its nature as it only dealt with extra- marital relation between two married people but failed to consider the relation with unmarried people. Art.15 also stands violated as such penal provision not only created a categorization among the two sexes but in fact metes out unequal treatment amongst the males as well. There exists an inequality in the treatment being mete out depending upon the marital status of the woman.  If the intention is of adulteration in a sacred marriage, then, that can be done by any married or unmarried party. So, in what way is the law protecting the sanctity of marriage? And above all, this law was trying to protect the sacredness of marriage only from side of husband as the wife can neither sue the adulteress nor the unfaithful husband!

The part of the section where it says that ‘without the consent or connivance of the husband’ is derogatory to the women and the relation of husband and wife itself. This part of the section indirectly depicts the hypocrisy of the legislature and that the women have no right over their own body and mind as also reflected in the marital rape, abortion laws and also in prostitution. This depicts that if the husband consents, the wife can have an extra-marital relation with other man. So,this section was trying to do indirectly, what it cannot do directly i.e. ensuring its patriarchal roots. A close reading of the section implies that once the husband consents the whole fulcrum of the section dissolves. State really needed to be asked that in this situation, who was going to protect the sanctity of marriage!

The said provision is also contradictory to the celebratedjudgment of Justice K.S Puttaswamy (Retd.) v. Union of India & ors, since sexual privacy is an integral part of ‘right to privacy’. The right to engage in sexual intercourse is an intrinsic part of the right to privacy. Privacy has to invariably contain the right to bodily integrity, self-determination and sexual autonomy. By criminalising adultery, the state is in fact showing a paternalistic attitude by telling individuals how to lead their lives and what behavior to adopt. It carries moralistic undertones of imposing what living an ideal life means for the state. Also the State cannot govern how a marriage is to be conducted and needs to realize that no amount of deterrent effect can save a crumpling relationship.

Infact the irony is that the punishment provided under the adultery law i.e. Section 497 of IPC was imprisonment for a period of 5 years whereas in case of Cruelty by Husband or his relatives, the punishment is for 3 years. The law of Section 498A is directly for the protection of women in a marriage, and here the punishment is less. Whereas, in adultery where the wife party has no right to either prosecute the adulteress or her husband, the punishment is for 5 years. So, how is this law for the beneficial for the woman or marrige? Is cruelty not degrading the sanctity of marriage? Probably, the legislation was trying to satisfy male ego and decide who is the owner of the woman!

NEOTERIC APPROACH

In Joseph Shine v Union of India, again ignited the discussion on this controversial law. The petitioner challenged the law stating that this law is violative of Article 14, 15 and 21 and should be scrapped from the statues. The petition was heard by the five judge bench who analyzed this of this law. So far, the Supreme Court has opined that this law cannot be gender neutral. The bench consisted of CJI Dipak Misra, Justice R F Nariman, J.A M Khanwilkar,J. D Y Chandracud and J.Indu Malhotra. In the initial hearings of the petition the CJI said, “Gender neutrality cannot make adultery an offence as the act is consensual. It may have civil remedies like being a ground for divorce but it cannot be categorised as public wrong as none of the consenting married adults accused of adultery complain that any one of them has been abused. Making it gender neutral would result in gymnastics.”The CJI said,“Since adultery was a consensual act, why should it be a crime. It is like calling a person for dinner and then getting him booked for house trespass.” CJI Misra and Justice Chandrachud said: “Adultery may not be the cause for a broken marriage but a consequence thereof.  Many a time, a party to a marriage wants divorce after a marriage has broken down, but the case goes on for years in court. If the woman finds solace, love and affection in another man, should that man be booked for adultery by her estranged husband just because the marriage has not been annulled trough divorce?”

The Supreme Court decided this case on 27^th September and held that the Section 497 IPC and Section 198(2) of CrPc are unconstitutional and are scrapped from the constitution. This is a new beginning towards gender neutrality and has given a new direction to feminist jurisprudence. The court analyzed the Section in its widest form possible and correlated it with the present scenario. “Any provision of law affecting individual dignity and equality of women invites wrath of constitution. It’s time to say that husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong”, read out Chief Justice Misra from the judgment written for himself and Justice A M Khanwilkar. The judgment held Section 497 to be “manifestly arbitrary”. “Ancient notion of man being the perpetrator and woman being victim of adultery no longer holds good”, observed Justice Nariman. It treats women as chattel, and has chauvinistic undertones.

Referring to the offence of bigamy under section 494 of the IPC, Justice Chandrachud weighed in, “bigamy is gender neutral…if a woman engages in sexual intercourse in a second marriage while the first is subsisting, it is punishable…section 497 does not use same the yardstick as section 494 and this distinction makes the former unconstitutional…”. The Chief Justice Observed that the survival of a marriage should be left to the discretion of the husband and the wife, without any intrusion by the State.
The judgment since then is being celebrated by the lawyers and activists who had a long drawn battle to decriminalize this section. But the other sects of the society has taken the decision the other way and are saying that “One can have as many affairs as required”, but what is to be understood is that this is not what has been prescribed the decision. The decision has rather seen the section in the light of gender neutrality and the privacy of the adults in a marriage. What people need to understand is that adultery is already a ground for divorce and punishing the other party for the same seems revengeful and for satisfying the male ego. The punishment in civil laws is “a mode for enforcement and not for satisfaction”.

CONCLUSION

We should never forget that law is the flag bearer of change. The recent judgment of Section 377 depicts the evolution of change and calls for acceptance of divergent. Similarly, the law of adultery was flawed in its entirety. But making the law gender neutral was not the solution. As said in the judgment, Justice Nariman opined“there is no rationality in treating one party as the victim and the other as the accused for the same act…the only rationale behind the provision seems to be that marriage is an institution which has to be saved…marriage has been called an institution in all scriptures…it is built by two pillars and there has to be equal responsibility of both…to say that women are protected from the criminal ramifications of Adultery under Article 15(3) is not justified…Article 15(3) only applies to post-constitution laws…”, noted the Chief Justice. “An ancient provision is not protected under Article 15(3). It is for the Parliament to make (laws under Article 15(3)”,agreed Justice Nariman
The law needed to be scrapped from criminal statues as it was in no way protecting the sanctity of marriage.  The notions of society have been evolving over the years and so has the concept of marriage. Now the majority of youth is not concerned with the sacredness of marriage and is gradually taking the shape of contract. The concept of Dharma is of least importance now, even the rule of exogamy and endogamy is not so prevalent, and on other hand, divorce is more prevalent. So, it is necessary that the question of adultery be handled with grace as the criminal color to adultery hampers the reputation of the parties involved in the adulteress act.

The question is not whether infidelity is acceptable — it can cause bottomless hurt to the betrayed spouse, and is ample grounds for a divorce. The problem is that our law on adultery doesn’t treat it as a private wrong, to be remedied through civil procedures. It involves the state, and the full weight of patriarchal morality, in the affair.

The law should provide civil remedy for adultery as in case of fraud in a contract law. The parties that have been betrayed should be able to claim divorce and damages for their mental agony and fraud. Simply stating, the term adultery should be replaced by infidelity as it will entail extra marital affair with either married or unmarried or even with the person of same sex. What we need to understand that decriminalising adultery would in no way affect the sanctity of marriage as no one is gaining anything out of these proceedings other than revenge. It’s high time that society also does not put this amount of pressure on marriage as this pressure leads to mistreatment of the person involved in deviant activity in a marriage. As the society has learnt to accept the existence of divorcee women in society same way the adulteress pair should also be able to live with the societal acceptance. The State should stop its moral policing and give the right to the parties in a marriage to decide their private matter and not make it a matter of public importance.

BY HAMDA AKHTARUL ARFEEN