JOIN USAfter nearly three decades, the Supreme Court is all set to revisit the Victorian-era provision of Section 497 of the Indian Penal Code. The constitutional validity of Section 497 of the IPC and Section 198(2) of the Criminal Procedure Code has been challenged in the matter of Joseph Shine vs Union of India.
While referring it to a constitutional bench, the apex court observed, "The time has come when society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When society progresses and rights are conferred, a new generation of thoughts spring, and that is why we are inclined to issue notice".
Adultery in India is a criminal offence as per Section 497, which says, "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". This provision punishes only the man who has committed the adultery, while the woman has complete immunity. Section 198 of CrPc postulates that a cognisance of the offence can be taken only on the basis of a complaint filed by the husband of the adulteress.
The apex court had its first opportunity to look at section 497 in Yusuf Abdul Aziz vs The State of Bombay and Husseinbhoy Laljee in 1954. It was held that Article 14 (Right to Equality before the law) is general and must be read with other provisions that set out the ambit of fundamental rights.
Sex (gender) is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides legislature powers in Article 15(3) to make special provisions for women and children. The two articles 14 and 15(3) read together validate the impugned clause in Section 497.
On the second occasion in 1985 in Sowmithri Vishnu vs Union of India, it was held that the offence of adultery as defined can only be committed by a man, and the wife shall not be punishable even as an abettor. It was also observed that society may have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately.
Lastly, in V Revathi vs Union of India (1988), the constitutional validity of Section 198 of the CrPC was challenged. It was argued that to deny the right of an aggrieved wife to prosecute her offending husband for the offence of adultery under Section 497 of IPC is to violate the Constitution by discriminating against her on the ground of her gender.
But the court held that under Section 497, only a husband can file a complaint under Section 198 of CrPC against an "outsider" who tries to break the sanctity of a matrimonial home. Section 497 does not allow the wife of an adulterer to prosecute either her offending husband or the woman with whom he committed adultery.
Section 497 has rightly been criticised as "gender biased", as only the husband (of an adulteress) is empowered to lodge a complaint against the "outsider", while the victim-wife (of the adulterer man) is rendered powerless for not being able to lodge a complaint against the adulteress. It has also been questioned as to why only the adulterer man is punished for a consensual sexual relationship, especially when society has undergone changes with time. The law as it stands treats the women as powerless and idle under the garb of being victims.
While referring Section 497 to the constitution bench, the apex court observed that if a husband gives consent to sexual intercourse between his wife and another man, then it nullifies the offence of adultery and turns women into commodity, which goes against the principle of gender justice and the constitutional mandate of right to equality. Section 497 clearly is gender-biased and discriminatory in nature and thereby violates Article 14 and 15 of the Constitution of India.
Decriminalise adultery
Another raging debate has been whether adultery should be decriminalised. Various committees have examined the offence of adultery but none of them vouched for decriminalising it. The 42nd report of the Law Commission recommended for lesser punishment, whereas the Justice Malimath Committee on Reform of Criminal Justice System recommended that both the man and woman indulging in adultery be punished equally.
The only exception to these views has been that of the National Commission for Women, which has taken the stance that the issue of adultery should be viewed as a breach of trust and treated as a civil wrong rather than as a criminal offence.
Many countries in the world, most notably in the European Union, have already decriminalised adultery. The Supreme Court has in fact observed in V Revathi vs Union of India that man and woman should not strike each other with the weapon of criminal law.
At this juncture, it is apt to recall the views expressed by Thomas Macaulay, the main architect of the Indian Penal code. Macaulay wanted adultery to be kept out of the purview of penal statute. He observed, "Those whose feelings of honour are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances, we think it best to treat adultery merely as a civil injury".
Considering developments in other developed and progressive countries as well as the fact that Indian society, too, has undergone changes, it is time to make adultery a civil wrong. Adultery law in India is a throwback to the times when women were considered a property of their husbands. As a nation and society, it's time to be adult about adultery.
(The writer is a lawyer practising in the Karnataka High Court)