Decriminalisation of Adultery: A Step Towards Rights Based Social Relations

 

Dr. Surendra Kumar*

Assistant Professor, Law, Govt. J. Yoganandam Chhattisgarh College, Raipur, (C.G.).

 

ABSTRACT:

Whether adultery should be considered as an offence against public morality or left to the operation of the civil laws has been the subject of much discussion.Adultery as a crime can be constituted by even a single act of sexual intercourse of a married woman with a married man other than her husband, if it is by consent and does not come within the category of rape. The explanation seems simple but there are several issues debatable connected with it and the problem is much bigger than a sexual act. First of all the said law of adultery was enacted way back in 1860 during the British rule of India. What is most significant is that even at that time the law criminalizing adultery did not exist at all. The main person involved in drafting the said law himself was not in a favour of criminalizing the act.  However the law was still enacted and enforced taking into regard the unequal and pitiable position of woman in India at that time when they were considered as a property of man. The said provision has been challenged before the courts and criticized widely on several occasions but the Courts in India have let the provision stand in total disregard of the fact that the position of woman has drastically changed with time in the country and now woman are not only considered socially equal to men but even in some instances above them. Secondly the language of the Section 497 of IPC, 1860 or Section 198 (2) of Cr, P. C., 1973 and its applicability itself spells gender inequality and prejudice and seems to be against the fundamental rights guaranteed under the Constitution of India. Theprovision calls for prosecution of only the adulterer man and not the adulteress wife. All these factors definitely render the relevant provisions under Indian Penal Code and Criminal Procedure Code as unconstitutional discriminatory to men and women both and themselves promote gender inequality. It is significant and noteworthy that while in Britain itself the law on adultery has been abolished even as a tort way back in 1857, the law was also abolished in Japan in 1947, in South Korea in 2015 and by most of the countries except countries like Philippines, United States and Islamic States like Pakistan, Saudi Arabia and Iraq etc. Most of the European countries like Malta, Italy, France, Spain, Portugal, Greece, Switzerland, Turkey, Romania etc., and the earlier laws of adultery as a crime have been abolished long back. Even some states of US like West Virginia, Colorado and New Hampshire have abolished the law. Even the United Nations Entity for Gender Equality and the Empowerment of Women and the United Nations Working Group on Discrimination Against Women in Law and Practice have called for abolition of criminalization of adultery saying it leads to discrimination and violence against women. In some Islamic countries punishments like stoning and flogging have been assigned for adultery and many cases of honour killing have been noticed. The issue of adultery and the act is more or less a moral crime and an issue to be decided between the families themselves rather than making it public and thereby making the whole issue more complex to resolve between a husband and wife within their four walls.

 

 

 

INTRODUCTION:

Various kinds of crimes are committed in society and some of them are of a very heinous nature while the others may be of a minor kind. However, some crimes or acts are of such nature that tends to threaten the very culture, belief or basis of establishment of a civilized society. Adultery is one such latter nature of crime.

 

Contrary to the Western European culture, the institution of marriage from the ancient times in India is support to be based on a religions and sacred bonding between two people, performed before or making God a witness and taking vows of being with each other in good or bad times in loyalty till death. Adultery is one such act which imperils or violates this bonding between a man and woman and is rightly considered as immoral, dishonorable and unethical not only because it threatens the very institution of marriage but also because it adversely and negatively affect the family of the offender including his children, relatives, friends etc., as well as the families of both husband and wife.

 

While the act or crime of adultery is more of an immoral nature and is condemnable in itself, but one cannot neglect or overlook the fact that it is committed between two consenting adult parties, a man as well as a woman and yet if the said act is designated as a crime, the same must be attributed to both the adult consenting individuals rather than criminalizing it on the part of male only and putting and attributing entire blame on him.

 

The above theory may seem to be correct and appropriate on the face of it but the prevailing laws in India as well as in many other countries as well seem to have entirely other ideas. The topic thus in itself becomes debatable and controversial. As such there are varied views of the society on it as well as the law in India related to it making it today one of the most talked subject. The question is whether the responsibility to preserve the sacred institution of marriage is solely of a man and is he the only party to be blamed when the sacredness of marriage is violated.

 

MEANING AND LEGALITY OF ADULTERY:

The word ‘adultery’ derives its origin from the French word ‘avoutre’ which has evolved from the Latin verb ‘adulterium’ which means to corrupt. The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage was termed as adultery.¹

 

This definition of adultery emanated from the historical context of Victorian morality, where a woman was considered to be the property of her husband and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an abettor even though the relationship was consensual.

 

As per Black’s Law Dictionary, adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife. In general, it can be said to be sex between a married man or woman and someone he or she is not married to or in other words voluntary sexual intercourse between a married person and someone other than that person's current spouse or partner. While even a single act of sexual intercourse is considered to constitute adultery and in the historical times, under many cultures, this was considered as a crime attracting severe punishments like torture, mutilation or even capital punishment², yet it is very significant to note that in the historical times in India, Rome or Greece the females were equally punished, sometimes more than men for committing adultery and the very definition of adultery under the dictionary incriminates men and women equally for the said act.³ In the historical times, the women were not considered equal to men in the society and thus had a legal disadvantage but with passing time the act of adultery became more gender-neutral and while men faced the punishment for the same in form of torture or exile or deprivation of property, the women also were punished by confiscation of their property, humiliation, beating and lashing etc.⁴

 

For social and moral reasons, adultery in India was severely looked down upon even in ancient times and the crime was punishable with death by stoning or hanging and the women were categorized as 'vyabhicharini' and punished as well besides losing respect and sanctity in the society.⁵ For the modern times, most of the criminal and civil laws applicable in India have been enacted during the British rule according to the circumstances prevailing in the society at that time and period. Few provisions of such laws however have been amended and a few added to cope up and make them suitable according to the changing times and patterns of the society.

 

In the 19th century, women were generally considered to be property of their husband in the Britain and faced discrimination but even in those days 'adultery' was never included as a crime under any criminal or common law. It was at the most designated as a tort termed 'criminal conversation' which also was later abolished in 1857 and made a ground for divorce by the Divorce and Matrimonial Causes Act, 1857.⁶ As such, when Lord Macaulay drafted the Indian Penal Code, 1860 at the first instance he did not include ‘adultery' as a crime under it and was of the view that offence of adultery could be compensated by way of compensation payment.⁷ The Law Commission of India however was though not of the view to omit adultery altogether from the Code but was of the view that the cognizance of it should be limited to adultery committed with a married woman but was also of the view that considering the position of women in this country the male offender should only be punished but the trial of accused of adultery must be conducted together and if the husband of guilty woman seeks, divorce decree should be granted. However, this view was not accepted wholly and Section 497 criminalizing adultery was enacted.⁸

 

Section 497 as it exists under Indian Penal Code, 1860 (hereinafter referred as IPC,1860)criminalizes adultery for man if he has sexual intercourse with a person who he knows on has reasons to believe is wife of another man, without the consent of that man and the wife in such case shall not be punished as an abettor. While the provision is one sided prejudiced against man committing adultery, another controversial aspect of the provision is that if the husband of the wife committing adultery does not object, the crime of adultery is not constituted. Thus, the provision is also prejudiced against the wife of the man committing adultery.

 

It is significant that the Law Commission of India in its 42nd Report in 1971, after considering all aspects of the law in United States of America (hereinafter referred as USA), United Kingdom (hereinafter referred as UK) and Germany etc., and after taking down the views of eminent person, lawyers and judges found out that maximum people were in favour of retaining the provision under IPC, 1860.⁹ However, the Law Commission recommended that Section 497 may be retained in the Code but man and woman in adultery must be liable for punishment equally, amounting to imprisonment extending to 2 years or with fine or with both.¹⁰ It is ironical that the said recommendation was not accepted. Moreover, again pursuing the provision of adultery in its 156th Report of August 1997, the Law Commission of India, quoting from the decision of Supreme Court in Sowmithri Vishnu v. Union of India and another,¹¹ which observed that it is for the legislature to consider whether Section 497 of IPC, 1860 should be amended seeking transformation within the society, the Commission recommended that while women should not be exempted from the liability, the punishment of five years imprisonment must be retained, instead of 2 years as recommended in the 42nd Report.¹²

 

Constitutionality and other judicial aspects of adultery:

After independence, the constitutionality of the provision of adultery and the prejudice of it to the accused man and exemption of woman from the liability has been challenged many times before the judiciary.

 

The first post-independence petition was filed by Yusuf Abdul Aziz in name of Yusuf Abdul Aziz v. State¹³before the Bombay High Court and having lost the case, the petitioner approached Supreme Court. The question before the Apex Court was whether exemption of liability of woman U/S 497 of IPC, 1860 violates Article 14& 15 of the Constitution. The Court in its judgement in Yusuf Abdul Aziz v. State of Bombay¹⁴ delivered by a five judge bench, were of the view that Section 497 was definitely constitutional because while Article 15 prohibits discrimination of citizens on the basis of caste, religion or sex, the Constitution of India under Article 15 (3) provides for State to make special provision for women and Article 14 of the Constitution must be read with other provisions under the fundamental rights of a citizen.

 

The next case which questioned legality of provision of adultery before the Supreme Court was Sowmithri Vishnu v. Union of India.¹⁵ In this interesting case, during the divorce petition being pending, the husband of the petitioner filed a complaint U/S 497 of IPC, 1860 against one Dharma Ebenezer charging him with having committed adultery with his wife/petitioner. Through this writ petition before the Supreme Court the petitioner’s wife challenged the constitutionality of Section 497 pleading that it was in violation of Article 14 of the Constitution and denies woman the same right as man on the grounds that-

 

(i)    The Section 497 confers right upon the husband to prosecute the adulterer but does not confer right to woman to prosecute wife of the woman with whom her husband commits adultery.

(ii)   There is no right granted to wife to prosecute her husband for having committed adultery with another woman.

(iii)  Section 497 is not applicable in cases where husband has illicit relation with an unmarried woman thus giving them free ground for extra-marital affair with unmarried woman.

(iv)  The adulteress is not a necessary party in suit for adultery U/S 497 even though the suit would affect her reputation and she as a matter of right must be heard by the Court in such suit.

 

The Supreme Court after considering all pleadings and arguments was of the view that it is unacceptable that in restricting the class of offenders as men in cases of adultery, any constitutional fundamental right is infringed because it is commonly accepted that it is man who is the seducer and not the woman. The Court also accepted that though this position may have under gone some changes with time but then it is upon the legislature to pursue the same and amend the legislation. Moreover the Court felt that in prosecuting only man and not woman, the idea behind the law is that a wife involved in illicit relationship with a married man is a victim and not an offender. The Court also in relation to last ground said that there is no bar on the wife/adulteress being not heard in a suit for adultery and if she files an application for the same, it can be allowed by due consideration by the concerned Court under the principles of natural justice. Further, the Court was of the view that each party also has an alternate remedy under civil law for divorce on ground of adultery.¹⁶

 

It is humbly submitted that the Court in this case failed to take consideration of issues and matters including their justifiability on humanitarian and human nature grounds as well as failed to consider plight of woman/wife of adulterer male or even of the rights of adulteress woman.

 

Another important and landmark case on related issue was adjudicated upon by the Apex Court in V. Revathiv. Union of India and others.¹⁷ The contention in this petition was that while Section 198 (2) of the Criminal Procedure Code, 1973(hereinafter referred as Cr. P. C., 1973) grants right to the husband to prosecute the adulterer man, it does not grant right to woman to prosecute her adulterous husband and is thus discriminatory to woman and unconstitutional. The Supreme Court referring to the case of Sowmithri Vishnu,¹⁸ Section 497 of the IPC, 1860 and Section 198 (1) and (2) of the Cr. P. C., 1973 admitted that under the law the aggrieved husband of adulterer wife has no right to prosecute his wife. However the Court observed that the philosophy underlying these provisions is that as between the husband and wife, social good will be promoted by allowing them to ‘make up’ or ‘break up’ the matrimonial bond instead of dragging each other to a criminal court. Thus, though they cannot send each other to jail, they can either forgive and forget and live happily afterwards or break the matrimonial tie by seeking divorce. In this way, it is also less traumatic for the family and children of both. The Court also held that Section 497 of IPC, 1860 and Section 198 (1) read with 198 (2) of the Cr. P. C., 1973 go hand in hand and constitute a legal packet to deal with the offence committed by an outsider to the matrimonial peace and bond as well as privacy of a husband and wife and does not therefore arm the two spouses to hit each other with weapon of criminal law. As such laws thereto hand out justice to both parties.¹⁹

 

The general views of Supreme Court thus related to adultery have been to go with the law to justify that the purpose behind the enactment of law as it stands as being correct and judicial and to advise the legislature that if they feel the circumstances within the society and its outlook have changed over the period of time, they are free to amend the law accordingly. Thus so far the judiciary has avoided and shunned their role in critically analyzing the discriminatory part of the provision of Section 497, its prejudice or violation of constitutional provisions.

In a recent judgment too, the Supreme Court in W. Kalyaniv. State through Inspector of Police and another,²⁰ held the same view but referring to Section 497 of IPC, 1860 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 interms of law as it stands, it is evident from a plain reading of the Section that only a husband can be proceeded against and punished for the offence of adultery.

 

Now, the issue of validity of law of adultery has against been raised before the Supreme Court in the nature of writ petition Joseph Shine v. Union of India,²¹ in which the constitutional validity of Section 497 of IPC, 1860 and Section 198 (1) read with 198 (2) of Cr. P. C., 1973 has been challenged and it is prayed that above provisions must be struck down. In his petition the petitioner, referring to earlier judgments of Supreme Court in such matters and pointing out the defects therein has even brought before court the outlook of Courts in USA,UK etc., referring to its various cases, instances of countries where the law has already been struck down and the recommendations and advise of a Working Group of United Nations established by the Geneva based Human Rights Council in September 2010 to countries to abolish the laws that classify adultery as a criminal offence.²²

 

The Supreme Court in its first hearing of the present case, while ordering for issue of notice to the opposite party observed that prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seem when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from that scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. This tantamount to subordination of a woman where the Constitution confers equal status. A time has come when the society must realize that a woman is equal to man in every field. This provision, prime facie, appears to be quite archaic.²³

 

 

In the next hearing of this case, the Supreme Court said that it is more appropriate to reconsider the earlier judgments of the Supreme Court made in this matter with due regard to be given to gender equality, perceptual shift, social progression and gender sensitivity, as well as rights conferred to women under Article 15 of the Constitution. Taking this into account the Court referred the matter to be decided by a Constitutional Bench.²⁴

 

The Court even relied on K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.,²⁵ to explain this deprivation of autonomy as a violation of their right to privacy and to live with dignity, thus violating their fundamental rights under Article 21 of the Constitution. Apart from this, the Court also considered the outlook of variousdecisions of the courts of South Korea,²⁶ Uganda²⁷ and South Africa²⁸etc.

 

Finally, a five judge Constitution Bench headed by Chief justice of India, Dipak Misra, transported India into the company of countries that no longer consider adultery an offence but only a ground for divorce. In four separate but concurring opinions the Bench held that adultery is not a crime and struck it off the Indian Penal Code.

 

Chief Justice Misrain an opinion for himself and A. M. KhanwilkarJ., observed that Section 497 of the Code commands married couples to remain loyal to each other. Two individuals may part if one cheats but to attach criminality to infidelity is going too far. How married couples deal with adultery is absolutely a matter of privacy at its pinnacle. Loss of moral commitment in a marriage creates a dent in the relationship but it is left to each individual to deal with the problem. Some may forgive while other may seek divorce.

 

The provision is a reflection of the social dominance of men prevalent 150 years. Treating adultery as an offence is tantamount to the State entering into a real private realm. Adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.

 

It is surprising to see that even after the verdict many have opposed this decision of the Supreme Court, while most countries of the world have done away with this practice.

 

CONCLUSION:

The position of man as well as of woman in the society has gone through drastic changes as also the outlook and view of the society and position therein specially concerning a woman.Marriage in India no doubt is a very sacred institution culturally and a very firm and holy binding. However, any violation or disregard of the vows taken by a husband and wife of devotion to each other, are a matter of immoral, dishonorable and unethical deeds which effect the very relationship ties between them but this immoral deed can no way be classified as an act which needs intervention of State or police or even the courts and the said matter stands to be better resolved between the married couples themselves as it effects only their life and its tranquility and not the peace of the society at large.

 

Thus the very act of criminalization of adultery is like an instance of legislature and subsequently the people of the society having a peek or peep into the bedrooms of matured couples or families thereby effecting adversely the right to privacy of the persons concerned. The condemnation of the said act by the life partners of adulterer man and adulteress woman and the seeking of divorce on those grounds is a punishment for the offending individuals themselves. Only the crimes which affect the other people, society etc., must be punished by law and the act of adultery only affects the individual husband and wife relationship which already has remedies like divorce and cannot be made as a ground for penalty being inflicted by the State.

 

However, the much awaited decision of Supreme Court in the case of Joseph Shine to scrap this archaic law is definitely a step in the right direction and would enlighten and reveal the further path in this regard. It is a step towards achieving equal rights for all and upholds individual dignity. With the decriminalization of adultery India has taken another step towards rights-based social relations and proved that it is only in a progressive legal landscape that individual rights flourish.

 

REFERENCES:

1.        The New International Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Ed.), p. 21.

2.        See,https://en.wikipedia.org/wiki/Adultery, visited on 10.12.2018.

3.        See, "Adultery Divorce", available at, www.advocatekhoj.com, visited on 10.12.2018.

4.        Marita Carnelley, "Laws on adultery: comparing the historical development of South African common-law principles with those in English law", available at,www.scielo.org.za, visited on 10.12.2018.

5.        Palak, "Adultery", available at,www.legalservicesindia.com,visited on 10.12.2018.

6.        Ann Summer Holmes, "The Double Standard in the English Divorce Laws 1857-1923", Vol. 20, No. 2 Law and Social Inquiry Journal 601-602(1995).

7.        Law Commission of India, Macaulay's Draft Penal Code, 1837, Report No. 42 (1971).

8.        Id., at p. 325.

9.        Supra note 7 atp. 326-327.

10.      Id., at p. 327.

11.      AIR 1985 SC 1618.

12.      Law Commission of India, Report No. 156 (August, 1997) at p. 169-172.

13.      AIR 1951 Bom. 470.

14.      AIR 1954 SC 321.

15.      AIR 1985 SC 1618.

16.      Id., atparas 5- 7 & 8, 13.

17.      AIR 1988 SC 835.

18.      Supra note 15.

19.      Supra note 17 at para 2-5.

20.      (2012) 1 SCC 358. See also, Krushna Chandra Patra v. TanuPatra, II (1992) DML 20; Rajesh Paul Chaudhary v. State of Assam, II (2007) DML 735&Sandevip Roy v. Sudarshan Chakraborty, 2007 (98) DRJ 109.

21.      Writ Petition (Criminal) No. 194 of 2017.

22.      See, www.livelaw.in/statutory-immunity-womenprosecution-adultery-SC-admits-writ-petition-challenging-vires-section-497IPC, visited on 12.12.2018.

23.      See, Order of the Supreme Courtmade on 8th December 2017, available at,https://indiakanoon.org/doe/84109431, visited on 12.12.2018.

24.      See, Order of the Supreme Court made on 5th January 2018, available at,https://indiakanoon.org/doe/55014671, visited on 12.12.2018.

25.      (2017) 10 SCC 1.

26.      Case No: 2009 Hun-Ba 17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at, https://english.ccourt.go.kr/cckhome/eng/decisions/ majordecisions/ majorDetail.do, visited on 12.12.2018.

27.      Law Advocacy for Women in Uganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007), available at, https://ulii.org/ug/judgment/ constitutional-court/2007/1, visited on 14.12.2018.

28.      DE v RH (2015) ZACC 1877.

 

 

 

 

 

Received on 08.01.2019         Modified on 14.01.2019

Accepted on 05.02.2019      ©AandV Publications All right reserved