Consentia on Law - VOl - II

A Study of Adultery : Analyzing the Gender Neutrality of the Law

CHAPTER I

INTRODUCTION

The term “adultery” has its origin in the Latin term adulterium. Adultery according to the law is the consensual sexual intercourse between a married woman and an individual who is not her spouse or between a married man and a woman who is not his wife. “Although, adultery is not regarded as a crime according to legal jurisdiction but still it is considered as a matrimonial offence and a wrongdoing by almost all the religions. The ancient religions like Hinduism, Islam and Christianity condemn adultery and treat it as a moral and social sin. Adultery is considered to be an invasion to the right of the husband over his married wife.”[1] When we read the provision of IPC, the section 497 implied that the law of adultery is not in a way applied on a woman and it explicitly provided that the woman cannot be held for abetment of the offence of the adultery. The object of the law is to inflict punishment on those who interferes with the sacred relation of matrimonial home, and the law making body too considers it to be an offence one who interferes in the sacred matrimonial home. However, the framers of the Code did not include adultery as a crime; it was only after the recommendation of the Second Law Commission it was added to the Code.[2]

The punishment for adultery varies from country to country and from region to region. In South Asia, infidelity attracted aggressive treatments such as the death penalty. In countries such as Iran and Saudi Arabia, as punishment for adultery is stoning to death. There are strict laws similar in almost all Muslim countries and in most of them, the punishment for adultery is death by stoning. However, this method of punishment made headlines in the recent past, there had been protests around the world against the death sentences.

The Indian Penal Code describes adultery a punishable crime and punishment and punishment is prescribed for adultery. The Hindu Marriage Act clearly prohibits polygamous marriages and punishment for those who defy the law. A person who commits adultery is punished with imprisonment up to five years or a fine, or both. In the books of Indian law, adultery is still considered the offense of marital property and treats Aboriginal women as patients, not those who initiated the crime of adultery and therefore not punishable as accessories.

Marriage is considered a holy relationship and marriage vows are intended for both spouses to carry out their basic responsibilities and remain faithful to each other. Adultery is more of a social and civil offense and depicts a more arbitrary and infidelity of trust not only the spouse but the whole family. Adultery is a consequence of the collapse of faith and conscience in a relationship and requires corrective action rather than penalize. The sanctions imposed by the laws can bring relief to the injured party for a short time, but destroys the sanctity of marriage and family life in the long term ruins.

As it says, the offense is committed only by men who have sex with the wife of another man without his consent and women cannot be punished, even as an accomplice, as it is commonly accepted that the man who is the instigator/abettor and not the woman. In this paper work, the redundancy of the adultery law in India, in the light of the matrimonial and personal laws  and changing social conditions that is suggestive of amending the law in this context as otherwise this would lead to interfering with the most sacred system. Why the code only brought men in its ambit? Why do women have received this bonus that they will not be under the scope of this code? Why would a man guilty of adultery when he has sex with a married woman? Having sex with an unmarried woman would make him less guilty of violating the trust of his wife? These are the questions, this research intends to answer. This project aims to find answers to these questions and analysis of gender neutrality of the law on adultery.

CHAPTER II

SECTION 497 OF IPC AND ITS SCOPE

Adultery according to Indian Penal Code – Whoever has sexual intercourse with a person who is an 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 both. In such case the wife shall not be punished as abettor”[3]. Section 497 of the Indian Penal Code is so framed that a husband cannot prosecute the wife for broken the sanctity of the matrimonial tie by committing adultery with another man but he can prosecute that another man with whom his wife committed the adultery. “Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her.”[4]

“The essential ingredients of the section are;

  1. i) there must be sexual intercourse with the consent of the wife and the penetration must be sufficient to constitute sexual intercourse necessary to the offence;
  2. ii) knowledge and reasonable belief that the woman is married to another man and that marriage should be lawful; and

iii) the husband who has complained of the adultery had not consented or connived the act.”[5]

Adultery is a criminal offence under the IPC, which penalizes the man involved sectionin the act without penalizing women. One of the essential ingredients of the section, which states that the absence of consent or the husband’s complicity is required to establish a prima facie reveals that the article is not gender neutral.

 The very gender neutrality of the section has been debated many times; the constitutional validity of the section has been challenged in the court on the grounds that it violates the fundamental rights of a man under Article 14 of the Indian Constitution which states that “The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India”[6] and that this Section does not come under the purview of the saving clause under Article 15 (3) of the Indian Constitution. Equally the Section doesn’t provide any remedy to a woman whose husband has committed adultery with another woman, which is also a violation of the gender neutrality clause provided in the Constitution of India. It has been recommended by the 42nd Law Commission of India reports[7] and 2003 Malimath Committee Reports for amendment, but the law stands still date. In this context, the project tries to analyse whether the section is actually violative of Indian Constitution, or is there a need to neutralise the section or to make adultery a civil wrong rather than a criminal offence or not to make adultery any offence at all.

CHAPTER III

SUPREME COURT STANDING ON ADULTERY

In this chapter, we mainly focused on three cases which are Yusuf Abdul Aziz v The State of Bombay and Husseinbhoy Laljee, Sowmithri Vishnu v Union of India, V. Revathi v Union of India. These cases will discuss about supreme court standing on adultery.

The first important discussion regarding the constitutional validity of the section was held in the case of Yusuf Abdul Aziz v The State of Bombay and Husseinbhoy Laljee[8]. In this case, Section 497 of the Indian Penal Code was challenged to be ultra vires the Article 14 and 15 of the Constitution of India. The Supreme Court held that Article 14 a general provision and should be read in accordance with the other provisions that are exception to fundamental rights which is set out. Sex was awarded his and Article 15 (3) provides for exceptions for women and children. The petitioners argue that this clause is only for the benefit of women and not to permitting them to commit the crime or abetting crime. However, the Court ruled that they cannot see any restrictions as such; they agree or do the equivalent of a license to commit the crime for which the punishment was banned section. Finally, the Court held that Article 14 and 15, when “read together validate the contested in Article 497 of the Indian Penal Code clause”.

In the case of Sowmithri Vishnu v Union of India,[9]  the Supreme Court held that the Section 497 is not violative of the Article 14 or Article 15 of the Indian Constitution on the grounds that:

(1) Section 497 gives the husband the right to prosecute the adulterer, but does not confer any right to prosecute the woman with whom her husband has committed adultery. The Supreme Court held that it is a policy of the law, the offence of adultery when restrictive to men is not at all violative of any article under constitution of India

 (2) Section 497 does not confer any right on the wife to sue the husband who had committed adultery with another woman. The court said the law is that women who are involved in a sexual relationship outside of marriage is not the instigator of the crime, but is a victim and the legislature considered as a crime against the sanctity of the matrimonial home, and generally considered crime it is committed by a man. The process of law and the definition itself speaks of who has the right to prosecute whom.

(3) Section 497 does not take into the cases where the husband has sex with an unmarried woman, which means that husband has a license to have extramarital affairs with single women. The Court held that the law does not give freedom to men to have illicit relations with unmarried women, there is this particular kind of extra marital relation that is considered nowadays which can be commonly seen today. The husband may be booked for civil proceedings by the wife for separation. It is for legislature to draft reform of criminal law in respect to the requirement of modern times  and which in turn would not offend article 14 or 15 of the Constitution of India.

In the case of V. Revathi v Union of India,[10] the constitutional validity of S. 198(1) read with S.

198(2) of Criminal Procedure Code, 1973 that it just permits the spouse of the adulteress to sue the miscreant however does not allow the wife of the adulterer to do as such. The court said that the law does not permit both of the companions to indict one another under criminal law; a spouse is not allowed on the grounds that the wife is not treated a wrongdoer in the eye of law. The wife is not allowed as Section 198(1) read with Section 198(2) does not allow her to do as such. Also there is “reverse discrimination” for ladies and there is no discrimination against women so far as she is not permitted to sue her own spouse.

Criticism of Law and Supreme Court Judgment

The Section 497 of the Indian Penal Code which deals with adultery is gender biased mainly on the grounds that it does not allow the wife to prosecute the woman with whom her husband has adultered though it allows the husband to prosecute the man who has adultery with his wife. The law has considered woman to be a victim not as author of the crime.[11]

The contention of the Honourable Court is that the community punishes the “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 and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law.” However, the Court misses out the point that the wife has no relief in Criminal law though the same provision is given to the husband, and in a case where the woman is unmarried the woman cannot be prosecuted altogether. This can be seen as a violation of natural justice which is fundamental to our Constitution. [12]Article 14 read with 16(1) accords right to equality or an equal treatment consistent with the principles of natural justice.

The framers of the Constitution believed that in the middle of the twentieth century no one would discriminate on the ground of sex.26 However, it is clearly seen that the legislature is clearly making discrimination on the grounds of sex on the pretext of giving “protective discrimination” to the women. The special treatment given to the women under cl. 3 of Article 15 should be restricted to such cases which must be related to some features or disability which are so peculiar that it differentiate women from men as a class.

The Court said that an argument like making both man and woman held liable for adultery is not permissible as this is a policy of law.[13] The underlying law at the present situation, considers only men as offender, as a class; the women are not physically or socially such situated that they are incapable of committing the offence of adultery. Further, both the sexes are on an equal footing in committing the offence of adultery, this kind of legislation are discriminatory and arbitrarily protecting the women. The Section 497 of the Indian Penal Code is nothing but violative of the equality clause under Indian Constitution.

CHAPTER IV

CHANGING SOCIAL CONDITIONS

Polygamy in all religions and cultures generally except from Muslims, has stopped to exist and moreover become illegal to do such an act. now there is monogamy that is prevalent in the form of marriage. Today, not only a person who has two women can be prosecuted for bigamy, but his second marriage is void ab initio. Unlike before, when it was necessary to prove that the husband “living in adultery” to get a divorce, even a single case of sexual intercourse with a person other than the spouse allows other spouse to divorce. In today’s world  the lifestyle of masses changes drastically. What they earlier prefer to do, is what they are not at all interested today. The ethics and moral standard of people also changes with the time. So there is need to widely interpret the statute. As the law is for the people and not the people for law.

Presently, wives are not denied of their spouse’s adoration and consideration and mates can scarcely keep up any polygamous or extramarital relations without inviting any legal consequences. Indeed the meaning of infidelity in common law is much more extensive in degree than in criminal law. The individual laws, which did not exist in the present configuration the time this law was passed, have gotten to be operational as well as given sort of a level playing field for both, the spouse and the wife. Commonly, these components have made the then question of Section 497 out of date.

History has proven time and again that the reasons which justified for the exemption of women for the offence of adultery in the most recent century are no more valid today, the results of revising the meaning of adultery to make women culpable would be horrific. Though we the people of India has  undergone many changes but there are still may instances where the violence, atrocities against women can be seen in day to day life,  still in many societies and culture the condition of women is unimaginable, thus the women are not being dealt with equality  in every society. We live in a society where a long way from indictment, even a single charge women character is sufficient to procure devastation in her life. In this event that women are made culpable for adultery  Section 497 would get to be asylum for all spouses and in-laws needing to dispose of their wives and daughter- in-laws at the expense the women’s societal position. When a women’s notoriety is demolished she will turn into a simple prey for ill-use by other men. The Legislature must comprehend and try to understand that what is not equal cannot be treated at par with others by mere changing the definition of law. Making a procurement which makes a women lose her notoriety in Indian culture is similar to slaughtering the spirit of the individual while keeping just the body alive. In any conditions such law should be promoted. In this way, changing the meaning of adultery to make women culpable under the name of gender parity will just give society a ground to malign women and build the divergence of status further crushing the very motivation behind the proposed revision.[14]

CHAPTER V

DECRIMINALIZATING ADULTERY

Marriage is considered as sacrament (ceremony) and a common contract, both and the society has particular thoughts about the same. Yet, it is not a standard form of contract. The mates are and ought to be at a freedom to fixed their own terms of the agreement. In this way, whether they permit one another to have or keep up sexual relations with outsiders ought to be at the sole discretion of the spouses only. The National Commission for women prescribes that adultery ought to be made simply a civil wrong and the Supreme Court impliedly concurs that spouse should not hit one another with the weapon of criminal law. Making procurements in Penal law to direct civil contracts and especially the agreement of marriage, which is private and individual, is outlandish.

Punishment to the individual who has committed adultery is not and can’t be a solution for a party of the adultery. The object of punishment for adultery to send the person behind jail is that to punish the person wo is interfering in the sacred institution and to reach the settlement with the offender to get monetary gain. Indeed this was the very motivation behind why the offense of adultery did not figure in the first draft. To this degree, the conditions are not considerably distinctive even today. The presence of Section 497 has no obvious influence on society. Recognizing this most of the western nations/countries have decriminalized adultery. In most parts of the European Union, including Austria, England, and Italy adultery is not thought to be a criminal offence any longer. The European Union (EU) has denounced capital punishment for adultery now and again. It had likewise reprimanded the Turkey’s presentation of punishment for infidelity(adultery); it is a reasonable evidence of the stand taken by EU of considering infidelity as a non-criminal offense. In United States of America the law of adultery fluctuates starting with one State then onto the next; however after the decision in Lawrence v. Texas  by U.S.  given by the Supreme Court the legitimacy of adultery law is under debate. It is not a wrong in many nations of the European Union, including Belgium, Finland, Austria, Sweden, the Netherlands, and even Britain from whom we have acquired a large portion of our laws.

In a survey made by the 42d Law Report Commission in 1972 on the question for the repeal of

the section 497, majority of the judges and lawyers wanted to retain the section and only a minority want it to be repealed. They also argued that India has not reached such a situation to make a radical change in the law. However, they have also revealed that there are only a few complaints related to criminal adultery, and only a few of them are sent for imprisonment as most of the accused in cases has been let free only with a fine.[15]

The National Women Commission, India wants that the rather than making provisions to

amend the laws to treat the women as criminal in the case of adultery they want that the section to be repealed and treat the offence as a civil wrong rather than a criminal offence even the Supreme Court of India has impliedly said that the man and woman should not strike each other with the weapon of criminal law. Even the 42d Law Commission Report suggested that the main objective of the law is not to put a person under imprisonment, the court generally comes in settlement with the offender in mercenary level.

The Supreme Court has already said that the philosophy behind this law is to that social good is

promoted that the husband and the wife is allowed to “make up” or “break up” the matrimonial

relation rather than prosecuting and dragging each other to the Criminal courts.They can live

together in the spirit of “forgive and forget” or get separated from each other by approaching a civil  court for divorce. Moreover, the law is made for the betterment of the children who can be saved from the trauma of seeing one of the parents being jailed.[16]

CHAPTER VI

CONCLUSION & SUGGESTIONS

The article concludes that there has been a huge change in the Indian society; women are no longer considered to be the chattel of her husband. The law as it stands today violates the Indian Constitution that includes equal justice for every citizen of India and would not discriminate on the grounds of sex. The “special provision” clause under Article 15 (3) for women cannot be extended so as to create arbitrary discretion for such discrimination by the legislature, as in the case of adultery. The section 497 of the IPC which deals with adultery needs to be declared unconstitutional. Suggestions from the various Law Reform Committees also give a hint that essentially this section should be amended, or should be repealed altogether. The policy makers should immediately repeal the current law on adultery based on the suggestions from the various committees to give just and equal justice to the citizens of India taking into consideration the injustice rendered in the process. Further, in the present situation the marriage is considered to be a civil contract between two consenting adults; the civil law gives a much wider definition of adultery, and is sufficient and effective. Taking into consideration that number of western and developed countries has decriminalized adultery or has made it a civil wrong, there is a need to decriminalize adultery in India as well. Looking into all these arguments, it is evident that adultery should not be criminal offence. This change should be done either through declaring it unconstitutional by the Constitutional courts of the country or repealing the debated section through legislative amendments immediately.

SUGGESSTIONS  FOR REFORM

The Fifth Law Commission in its 42d Law Reports suggested that Section 497 should not be removed from the penal code, but it recommended that both the man and the wife should be made guilty as there is no valid justification “for not treating the guilty pair alike” and also scaled down the maximum punishment from five years to two years as the existing punishment is “unreal and not call for in any circumstances”.[17] The recommended section is as follows:

497 – Adultery. – “If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”[18]

The Indian Penal Code (Amendment) Bill of 1978 provided for amendment of the section 497, however it was not passed by the legislature. Clause 199 of the draft bill provided for[19]

Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to believe to be the wife or husband as the case may be, of another person, such sexual intercourse not amounting to the offence of rape, commits 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.

 The draft bill differs from the suggestion of the 42d Law Commission Report in two ways; the draft provided for punishment of the adultator irrespective of the gender and has retained the maximum punishment for the offence up to five years.

The Committee on Reforms of Criminal Justice System headed by Justice V.S. Malimath in the year 2003 suggested that the section 497 of Indian Penal Code should be amended as to give effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery…” The Committee viewed that as the very objective of the section is to preserve the sacred relationship of marriage, adultery is abhorred by the society so there is no justification that the wife who has sexual relationship with a man is not treated equally. This suggestion if accepted would make a man and a woman be treated equal as an adulterer.

[1] Sameeksha chowla, Divorce Under The Hindu Marriage Act, 1955 : The Law Decodified, 12th august 2013, accessed at www.legaldesire.com  on 10/03/2014.

[2] Ratanlal & Dhirajlal, 2 Law of Crimes, pg 2710, 26th edi, new delhi: Bharat Law House, 2007.

[3] Universal publication, Bare Act of Indian Penal Code (amendment 2013).

[4] K.I. Vibhute, “Adultery” in the Indian Penal Code: Need for a Gender Equality Perspective, (2001)6 SCC (Jour) 16, accessed at URL: <http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=941> on  06/03/2014.

[5] S. C. Sarkar, Commentary On The Indian Penal Code, 259-275, 3rd edi, Vol IV, Allahabad : Dwivedi law agency.

[6] Bare act, constitution of India, article 15(3).

[7]Law Commission of India, Indian Penal Code Report number: 42 326-327 (1972),accessed  at http://lawcommissionofindia.nic.in/1-50/Report42.pdf  on 08/03/2014.

[8] AIR 1954 SC 321.

[9] AIR 1985 SC 1618.

[10]  AIR 1988 SC 835.

[11] Vishnu, Ibid at 14.

[12] Subhash C. Kashyap, Constitutional Law of India at 481, New Delhi : Universal Law 2008.

[13] Ibid 16.

[14] Varad Deore, Adultery:  A Provision Redundant in Penal Law in Changed Legal and Social Context, published on 23rd January 2009  accessed at URL: http://www.legalservicesindia.com/article/article/adultery-the-need-for-change-in-ipc-598-1.html   on 07/03/2014.

[15]Law Commission of India, Indian Penal Code Report number: 42 326-327 (1972),accessed  at http://lawcommissionofindia.nic.in/1-50/Report42.pdf  on 08/03/2014.

[16] Amartya Bag, Adultery and the Indian Penal Code: Analysing the Gender Neutrality of the Law, accessed at URL: <papers.ssrn.com/sol3/papers.cfm?abstract_id=1627649> on 02/03/14.

[17] Supra 19 (law commission)

[18] Ibid.

[19] Ibid.

Advertisements

1 thought on “A Study of Adultery : Analyzing the Gender Neutrality of the Law”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s