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Judical perspective of law on adultery in India

The beauty of the Indian Constitution is that it includes I you and we. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building.

That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception.

A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master.

John Stuart Mill had observed: The legal subordination of one sex to another is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.

I am commencing with the aforesaid prefatory note as I am adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) Section 497 (Adultery) of Indian Penal Code.

The definition of the term adultery and its consequences vary between religions, cultures, and legal jurisdictions, but the concept is similar in Judaism, Christianity, Hinduism and Islam. The term comes from the words ad (towards) and alter (other). At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse.

Now, as the term has been used in section 497 of the Indian Penal Code, 1860, in relation to marriage, it thus becomes important to note that the institution of marriage came into existence as, and only as, a means to secure a man's property even after his death. Men wanted to retain their property throughout their lifetime and beyond.

It was only possible for them to do so if they could ensure that the person or persons inheriting the property after their death belonged to their own bloodline and that they did not belong to the bloodline of some other person.

Criminal intercourse with a married woman tended to adulterate the issues or children being born out of such a relation, thereby burdening the woman's husband to support and provide for another man's children. The purity of bloodline of the children born out of such adulterous relationships is lost, and the chain of inheritance (of property) gets altered due to such relations.

It was to prevent this mischief of altering the chain of inheritance that section 497 IPC was introduced. The idea was to secure the reason behind marriage (i.e. to ascertain the purity of a child), so that inheritance is not altered but remains with the husband of the woman concerned.

Section 497 aimed to secure the spiritual sanctity of marriage. This is the reason why it does not punish a man for having sex with another man's wife with the connivance of the womans husband, since in that case, the husband is expected to have full knowledge of the parentage of the child being born out of such mating and will not be cheated into tending to and providing for the offspring of another man.

Thus, as per section 497, adultery is an offence committed by a man against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow or even with a married woman whose husband consents to it or with his connivance.

Keeping in mind the origins of the crime of adultery, the scope of the offence under the section is limited to adultery committed with a married woman, and the male offender alone has been made liable. The concerned section was introduced into the Penal Code right at the time of enactment of the Code in 1860. It continued to function in the manner in which it was enacted till the advent of the Constitution of the Republic in 1950.

Concerns whether the section would be at loggerheads with Article 14 of the Constitution, which guarantees the right to equality before law, on account of the fact that it leaves out the woman adulterer from the purview of punishment while punishing her male lover, arose. However, such concerns were laid to rest due to the presence of Article 15(3) of the Constitution, which states that, 'Nothing in this article (i.e. Article 15 as a whole) shall prevent the State from making any special provision for women and children'. It is in furtherance of this principle enshrined in the Constitution that women continued to be left out from the purview of punishment for the commission of adultery.

Hence, as far as Adultery is concerned... a case of adultery can't be filed against a woman even if she is guilty of having been involved in an extra-marital relation. A case under this section (i.e. section 497 of the IPC) can only be filed against the male with whom she enters into such a relation. Section 497 of the Indian Penal Code, 1860, states that,  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, 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.

To constitute the offence of Adultery, the following ingredients must be established:
  1. Sexual intercourse must be committed with the wife of another man
  2. The person must have knowledge or has reason to believe that the women is the wife of another man
  3. Such sexual intercourse must be without the consent or connivance of the husband
  4. Such sexual intercourse must not amount to the offence of rape.(i.e it must be with the consent of woman or her husband)
However, unlike what the men's rights activists would like us to believe, section 497 is not in favour of women at all... or at the most, it goes against women's interests more than it serves their interests:
  1. No wife can bring to justice, the lover of her husband. But a husband can, with the help of this section, persecute his wife's lover.
  2. If a married man is having a having an affair with an unmarried woman or a divorcee or a widow, it shall NOT be treated as adultery under this section. Even if a man is having an affair
    with a married woman, it shall not be treated to be a crime under this section, if the husband of the woman concerned, consents to it or if the affair is carried out with his connivance. This effectively means that husbands can freely indulge in having extramarital affairs with spinsters, widows, prostitutes or even married women whose husbands have consented to such a relation, directly or indirectly.
  3. Women cannot file a case of adultery against their husbands under this section, even if he is having an extramarital affair with a married woman. On the other hand, the husband of an adulterer wife can not only file a case of adultery against his wife's lover and bring him to justice, under this section, but can also file for a divorce from his wife, on the ground of adultery, if the charges brought under this section, are proved.
  4. Last, but not the least, the section does not even provide any provision which enables the court to hear the woman against whom the husband brings charges of having indulged in an extramarital affair. However, fortunately, in this case, the courts have already agreed that there is nothing in the section that prevents the concerned woman from being heard at the trial, if she makes an application to the court to that effect.

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 a 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 seen 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 the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the 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 a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring.

Basically, this section was enacted, solely and exclusively, to protect the rights of the husbands. Though the men's rights activists managed to portray this as a pro-women and anti-men provision of the Indian Penal Code, 1860, merely because of the fact that an adulterer wife is not punished for adultery and it is the man with whom she was committing the adultery, who goes behind the bars.

Law, as we know it, is an ever changing, dynamic subject. Any law, if it fails to keep pace with the changing times, becomes obsolete. Hence there was a need to revisit and review the present provision of the Indian Penal Code, which make the adultery in India a criminal offence and make necessary changes, especially in the backdrop of the fact that other countries are increasingly doing away with adultery as a crime and the supreme court of India decriminalized and declares Section 497 unconstitutional as Adultery law under Section 497 views women as a property of men It allows men to file complaint but doesn't give women the same right and is against article 14 of constitution.

The law had come under sharp criticism for treating women as possession of men. An Italy-based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is discriminatory The adultery law first came under challenge in Yusuf Aziz versus State of Bombay case 1951sc in which court held that adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.

In Sowmithri Vishnu v/s union of India 1985 sc the Supreme Court held that women need not be included as an aggrieved party in the name of making the law even handed. It also explained as to why women should not be involved in prosecution in the cases of adultery.

The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offence of adultery as a crime committed by a man against another man.

The Supreme Court held that not including women in prosecution of adultery cases promoted "social good". It offered the couple a chance to "make up" and keep the sanctity of marriage intact.

The Supreme Court observed V Revathy versus Union of India of 1988 sc that adultery law was a "shield rather than a sword". The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men.. Besides the three Supreme Court judgments, there were two more important legal views in connection with adultery law.

The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 Recommended amendment to the adultery law and both argued to make Section 497 of the IPC gender neutral.

Another eminent judge Justice DY Chanderchud who was part of bench which decriminalized the adultery has made the observation that women could not be treated as commodity by leaving them to the discretion of their husbands in giving consent in matters of adultery. The Supreme Court said in August 2019 that Section 497 as anti-women to dismiss the argument that the adultery law discriminated against men. The Court while referring to the 42nd Law Commission Report, 1971, held that retention of Section 497, with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery.

Tinker v/s colwell, 193 US 473.481 Court in this case held that the act of the defendant is a violation of the marital rights of the husband in the person of his wife, and so the act of the defendant is an injury to the person and also to the property rights of the husband.

Section 497 of the I.P.C. which is placed under Chapter XX of Offences Relating to Marriage has been struck down by supreme court of India in Joseph Shine vs Union Of India on 27 September, 2018 by taking fallowing things into consideration and held that it violates articles 14 and 15 of Indian constitution.

The provision of Section 497 is replete with anomalies and incongruities, such as:
  1. Under Section 497, it is only the male-paramour who is punishable for the offence of adultery.
    The woman, who is pari delicto with the adulterous male, is not punishable, even as an abettor.
    The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery 51.
  2. The Section only gives the right to prosecute to the husband of the adulterous wife. On the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his paramour.
This committee on Reforms of Criminal Justice System (2003) recommended that the wording of the section be changed to: "Whoever has sexual intercourse with the spouse of any other person is guilty of adultery.

Adultery cannot be a criminal offence," however it can be a ground for civil issues like divorce apart from judicial decision it is necessary to mention the religious perspective regarding adultery;
In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Pauls letter to the Corinthians. Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words, let him who has not sinned, cast the first stone.

In the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment. The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman.8 However, in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a vedic scholar, for three years.9

In Islam, in An-Nur, namely, Chapter 24 of the Quran, Verses 2 and 6 to 9 read as follows:
The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement. 

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