THE ROAD NOT TAKEN: MAKING ADULTERY GENDER-NEUTRAL
Author: Veddant Majumdar
Amity Law School, Delhi
ISSN: 2581-8465
ABSTRACT
Section 497 of The Indian Penal Code defining adultery and prescribing punishment for the same, has been criticized for being discriminatory towards women by treating them as husband’s possession. The said section is also discriminatory towards men by not punishing the women indulging in an adulterous act. In an episode of adultery, only the man participating in it would be held guilty and the woman participating in the said act of adultery would not be punished as an abettor. The law of adultery being oppressive towards women, treating them as chattel as men, has been struck down as unconstitutional by a five-judge bench of the Hon’ble Supreme Court of India in the case of Joseph Shine v. Union of India. However, it is pertinent to mention that the decriminalization of adultery is a tribute to the right to liberty, but also a threat to the social institution of marriage. This decision, primarily premised upon the intention of upliftment of women, is acting contrary to its cause. The penalization of adultery leads to the creation of deterrence, and in the absence of it in the present scenario, women have become mute spectators of their husband’s acts of infidelity. Considering the patriarchal setting of the Indian society, divorce as a civil remedy to adulterous acts is not a sound option. Women, quite sadly, are still dependent on their husbands to make ends meet. Therefore, the most appropriate solution to this problem is criminalizing adultery with a gender-neutral approach. It would ensure equality to men and women alike and would also create deterrence against adulterous acts, thereby strengthening the social institution of marriage and stabilizing the society. This paper analyses the shortcomings of decriminalization of adultery and provides a prospective solution by making the law of adultery in India, gender-neutral.
INTRODUCTION
Recently, a five-judge constitutional bench of the Hon’ble Supreme Court of India delivered a judgment decriminalizing adultery. The intent behind the same was noble and was to liberate women of the identity of being a man’s possession. The Hon’ble Supreme Court is to be applauded for its courageous take on such a volatile issue, however, the flipside of this judgment is too important to let it slip into oblivion.
This judgment ensures the individuality of a woman in wedlock and rightly so, but this would grant leeway to the acts of infidelity, thereby weakening the institution of marriage. Clean consciences of all people in marriages is a utopian concept and therefore, ensuring the absence of infidelity by providing a deterrent against it by criminalizing such acts is imperative. The law of adultery contained in section 497 of The Indian Penal Code is violative of equality on two grounds, namely:
- A married woman indulging in an adulterous act is not punished as an abettor.
- A husband has the right to consent for his wife to have sexual intercourse with a person outside the wedlock.
Thus, the law of adultery contained in The Indian Penal Code is biased towards both: men and women, in different respects. The opposite solution to remedy these flaws would be to make the law of adultery gender-neutral. The Indian Penal Code Amendment Bill, 2017, introduced in The Lok Sabha by BJP MP Jagdambika Pal, rooted for an ideal solution by making section 497 of The Indian Penal Code gender-neutral. The following was the proposed language of the amended section:
497.[1] Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be spouse of another person, 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.”.
The substitution of the current section has been repealed by the Hon’ble Supreme Court’s judgment in the case of [2]Joseph Shine Vs. Union of India, by the above mentioned proposed amendment to section 497 of The Indian Penal Code, would serve the dual purpose of:
- Making the law of adultery gender-neutral in all respects.
- Acting as a deterrent against acts of infidelity in a marriage, thereby ascertaining the protection of the social institution of marriage and resulting in the stability of the society.
HISTORY
The law of adultery in India has always been a subject of contentious views. The landmark judgments which have laid down the journey of the law of adultery are discussed below ina chronological manner, to trace its development.
- [3]In 1954, The Hon’ble Supreme Court in the case of Yusuf Abdul Aziz v. State of Bombay, observed that section 497 of the Indian Penal Code is not ultra vires of Articles 14, 15 and 21 of the Constitution. The apex court held that it is only the man who is liable for adultery and not the wife with whom the adultery is committed. The wife is saved from the purview of the section and is not punished as an abettor. It was held that ‘sex’ is a reasonable and sound classification accepted by the constitution, which provides that the State can make special provisions for women and children vide Article 15(3) of the Constitution.
- [4]Then, in 1985, the Hon’ble Supreme Court of India, in Sowmithri Vishnu v. Union of India held that section 497 of the Indian Penal Code cannot be said to be violative of Article 14 on the ground that it makes an irrational classification between men and women. The Apex Court opined that a provision for hearing the wife is not contained in section 497 of the IPC, but it does not make the section unconstitutional as violating Article 21 of the Constitution. It is true that section 497 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.
- [5]In a recent judgment, the Supreme Court in the case of Joseph Shine v. Union of India ruled that adultery is not a criminal offence, thus, striking down a colonial-era law. Section 497 of the Indian Penal Code stated that adultery is defined as a person having sex with a man’s wife without taking prior consent from the husband. The law exclusively applies to men, women can neither be charged with adultery nor can they be the complainant. This ousted the wife’s position in an adulterous act; therefore, the wife’s consent played no role in the law. It didn’t look at women as an agency of their own, but merely as the husband’s possession
In 2017, Joseph Shine filed a petition challenging the aforementioned section. A three-judge bench, headed by the then Chief Justice of India, Dipak Misra, had referred the petition to a five-judge Constitution Bench which opined that the law does seem to be archaic and unjust. In four separate yet concurring judgments, the court struck down the law and declared that the husband is not the master of his wife, thereby repealing section 497 of the Indian Penal Code.
UNCONSTITUTIONALITY OF SECTION 497
The Hon’ble Supreme Court decriminalized adultery and repealed section 497 of the Indian Penal Code on the pretext of it being patently biased against women, treating women as the chattel of men, and thereby denying them the right to equality granted by the Constitution of India. [6]The Judgement delivered in Joseph Shine v. Union of India, was to protect the rights of women, as Justice D.Y Chandrachud pointed out, and rightly so, that section 497 of The Indian Penal Code undermines the autonomy, agency, and identity of women in wedlock.
Thus, the five-judge bench of the Hon’ble Supreme Court, comprising of the then Chief Justice of India: Justice Dipak Misra, Justice AM Khanwilkar, Justice D.Y Chandrachud, Justice R.F Nariman and Justice Indu Malhotra unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.
Articles 14 and 15 of the Constitution state the right of equality, with everyone being equal before the law irrespective of race, religion, caste, sex, and place of birth. Section 497 is prima facie discriminatory towards women, with the adulterer requiring the consent or connivance of the husband of the wife who is engaging in an adulterous act. If the husband so connives or consents, the said act would not be criminal anymore. However, if the husband is involved in sexual relations out of the course of the wedlock, with an unmarried woman, the wife’s connivance or consent is not sought for such acts of the husband. Such acts of the husband will not be considered criminal, irrespective of the wife’s consent or connivance in this regard.
Section 497 also stands to be discriminatory towards men in a different respect. The married woman who indulges in an adulterous act without the consent of connivance of her husband is not punished as an abettor and only the man with whom he said the adulterous act is committed, is held criminally liable.
Article 21 of the Constitution states the right to life and personal liberty. Section 497 of the Indian Penal Code deprives women of [7]the right to live with dignity’, which is an essential part of the right to life and personal liberty, as held by the Hon’ble Supreme Court in the case of Francis Coralie v. The administrator, Union Territory of Delhi and Ors.
Section 497 deprives married women of this right to live with dignity; when the husband of the wife has the right to consent to her sexual acts outside the purview of the marriage. This unjust provision deprives the married woman of autonomy over her own sexuality, which is demeaning to her identity and thus, violative of the right to live with dignity.
Therefore, section 497 of the Indian Penal Code has been rightly struck down as unconstitutional, but to protect the institution of marriage and to ensure stability in the society, making the law of adultery gender-neutral; while adultery still remains a criminal offence, working as a deterrent to prospective adulterers, is the right approach in all respects.
ONLY CIVIL REMEDY AGAINST ADULTERY NOW?
The judgment decriminalizing adultery also stated that adultery will be treated as a civil wrong as a ground for dissolution of marriages, but not as a criminal offence anymore.
It is a fundamental principle of criminal jurisprudence that the acts affecting the society and social institutions adversely, are included within the ambit of crime and are, therefore, criminally punishable. Marriages are affected adversely by adulterous acts of the participating parties and marriage being a social institution, criminalizing adultery is a lawfully sound course of action.
The Hon’ble Supreme Court itself has acknowledged that marriage is a social institution in the case of [8]Indra Sarma v. V.K.V Sarma., The Hon’ble court stated in paragraph 24 of the judgment:
Marriage and the family are social institutions of vital importance. The institutions of marriage and the family are important social institutions that provide for the security, support, and companionship of members of our society and bear an indispensable role in the nurturing of children.
The apex court again reiterated its stance on marriage is a social institution in the case of [9]SmrutiPahariya v. Sanjay Pahariya, wherein it stated in paragraph 21 of the judgment that
Marriage is an institution of enormous social relevance.
Time and again it has been brought to notice by the Hon’ble Supreme Court that marriage is a social institution, and a result of which, acts such as adultery; which adversely affect this social institution, are to be criminalized in coherence with the principles of criminal jurisprudence. It is, therefore, respectfully submitted that the five-judge bench of the Hon’ble Supreme Court which decriminalized adultery, overlooked the social character of the institution of marriage; which makes it permissible to criminalize adulterous acts which adversely affect this social institution of marriage. Hence, only a civil recourse being available against adulterous acts is a flawed opinion and against the tenets of criminal jurisprudence.
IMPACT OF DECRIMINALISING ADULTERY
[10]While the judgment decriminalizing adultery is bound to have a deep impact on marriages in India, the flipside of it cannot be overlooked. In a country witnessing upheaval in divorce rates and cases of marital infidelity, the decriminalization of adultery will significantly endanger the social institution of marriage. Not only does it give a leeway to the risk of fostering extra-marital affairs, divorce being left as the only recourse against adultery will patronage the break-up of marriages, but little children of the said marriages would be left in the lurch too.
[11]The Delhi Commission for Women (DCW), in a press release, has expressed its opposition and disbelief over the Supreme Court verdict that decriminalized adultery.DCW Chief, Swati Maliwal, in the statement, expressed that an open license to have illegitimate relationships has been given to the married citizens of the country. She said that the law against adultery should have been made gender-neutral by criminalizing the adulterous relationships by women as well men by the apex court. Decriminalizing the acts of adultery itself is adding to the woes of women, instead of providing a solution. The press release revealed that thousands of complaints are addressed to the DCW from women, husbands of whom participate in extramarital relationships and thereafter abandon them. These women, along with their children are rendered with no support whatsoever from their husbands and struggle to actuate the most appropriate legal recourse available.
In the patriarchal setting of our country, decriminalizing the act of adultery would only add to the pain of such aggrieved women. The judgment delivered by the Hon’ble Supreme Court of India was to safeguard the interests of women and their identity in a marital tie, but ironically it added fuel to fire as far as the situation of women seeking recourse to adulterous acts of their respective husbands is concerned. The penal law which acted as a deterrent against adulterous acts is now a relic of the past!
CONCLUSION
Section 497 of the Indian Penal Code is no doubt, ex- facie unjust towards both: men and women in different respects. The law of adultery contained in section 497 of The Indian Penal Code is violative of equality on two grounds, namely:
- A married woman indulging in an adulterous act is not punished as an abettor.
- A husband has the right to consent for his wife to have sexual intercourse with a person outside the wedlock.
Moreover, it is also infringing upon the right to live with the dignity of a woman, as it seeks the consent or connivance of the husband of such a wife, for her to have sexual intercourse out of the wedlock. Having obtained this consent or connivance of the husband, he said of sexual intercourse is not considered an adulterous act anymore. This implies that the sexual autonomy of the wife vests with her husband, which is violative of her right to dignity. It denies to grant the wife an identity of her own and treats her like her husband’s possession. This section is fallacious, but doing away the criminality of adultery is not the solution. It would only weaken the institution of marriage and encourage acts of infidelity in the absence of a deterrent. Making the penal law of adultery gender-neutralize, therefore, the most appropriate option and would go a long way in catering to the dual objective of:
- Preserving the social institution of marriage and stabilizing the society; and
- Ensuring equality and dignity of the parties in wedlock, while creating a deterrent against adulterous acts.
[1]The Indian Penal Code (Amendment) Bill, 2017, S.497
[2]Joseph Shine v. Union of India; AIR 2018 SC 4898
[3]K.D Gaur, Textbook on Indian Penal Code, page no. 1053, (sixth edition)
[4]K.D Gaur, Textbook on Indian Penal Code, page no. 1055, (sixth edition)
[5]Jyotsna Raman, Adultery no longer a criminal offence in India: 5 things the judgment said,thenewsminute.com, (25th June, 2019, 2:00 pm), https://www.thenewsminute.com/article/adultery-no-longer-criminal-offence-india-5-things-judgement-said-89067
[6]Supra Note. 2
[7] Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Ors; AIR1981SC746
[8]Indra Sarma v. V.K.V Sarma; AIR 2014 SC 309
[9]SmrutiPahariya v. Sanjay Pahariya; AIR 2009 SC 2840
[10]AbhaSingh,Decriminalisation Of Adultery – A Setback To The Institution Of Marriage In India, outlookindia.com (1st July, 2019, 9: 00 am) , https://www.outlookindia.com/website/story/decriminalisation-of-adultery-a-setback-to-the-institution-of-marriage-in-india/317282
[11] Mirror Now Digital, Adultery law abolished: DCW disappointed with SC judgement, invites those in favour to interact with victims, (4th July, 2019, 4:00 pm), timesnownews.com, https://www.timesnownews.com/mirror-now/in-focus/article/adultery-law-section-497-abolished-by-sc-dcw-chief-swati-maliwal-disappointed-with-supreme-court-judgement-invites-those-in-favour-to-interact-with/290971