Consensual sexual relations between two adults have been considered totally permissible by the Apex Court in India. (as discussed before here ). On the contrary, a sanctity and moral barrier is attached to the institution of marriage. When someone as a married person tries to establish the physical relationship outside the wedlock, he/she may be questioned and subject to divorce proceedings under the Hindu law, Indian Divorce Act etc.
The question remains that how the right to choose a sexual partner ends from the time of marriage. Though the right to privacy has been expanding over the years, still adultery is criminalised. Section 497, IPC infringes the right of privacy of a married woman. At the same time, it does not make her an abettor in the offence. Only sexual intercourse with a married woman without the consent or connivance of that man amounts to an offence. However, the consensual sexual relations established by a married man with an unmarried woman attracts no punishment under law.
Section 198(2) CrPC says that “No person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
“Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand. They constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.”
The legislative provisions in India have pro-women nature. Debates have started to make them gender neutral and in an earlier post, it was discussed that there is need to have provisions to protect rights of men too. A woman enjoys complete immunity to the charge of adultery and she cannot be proceeded against for that offence. Various petitions have been filed many time with the prayer that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. 1971, 1985,1988 and 2018 are significant as to understand the legislative policy and its administration by the judiciary with regard to offence of adultery.
2. Report of Law Commission of India,1971
The Law Commission of India in its 42nd Report on “Indian Penal Code” under the Chairmanship of Sh.K.V.K.Sundaram recommended various amendments to IPC. It considered in Chapter 20 of the Report (pp. 323-327) and suggested that exemption of wife from punishment under Section 497, IPC should be removed. It further recommended that punishment should be reduced to two years.
3. Previous Judgments of Apex Courts on Section 497, IPC (1954-1988)
Over the years, in different petitions, the approach of the judiciary has been the same – in favour of the validity of the provision for punishment for adultery. It has been held to be intra-vires Article 15(3). The Hon’ble Supreme Court treated Section 497 of the Indian Penal Code to be constitutionally valid in following matters –
(a) Yusuf Abdul Aziz vs. State of Bombay, AIR 1954 SC 321 –
The Apex Court observed – Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discriminate in general on that ground, the Constitution itself provides for special provisions in the case of women and children. Articles 15(3) & 14 read together validate the impugned clause in Section 497 of the Indian Penal Code.
(b) Sowmithri Vishnu vs. Union of India and Another, AIR 1985 SC1618 –
The petitioner submitted that incidentally, the sexual relationship of a husband with an unmarried woman should also be comprehended within the definition of ‘adultery’ is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery.
The Full Bench of the Apex Court held –
- It cannot be accepted that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. However, it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ‘transformation’ which the society has undergone.
- The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.
- Women, both married and unmarried, have changed their lifestyle over the years and there are cases where they have wrecked the peace and happiness of other matrimonial homes.
- The alleged transformation in feminine attitudes, for good or bad, may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of adultery to keep pace with the moving times. But, until then, the law must remain as it is. The law, it is, does not offend either Article 14 or Article 15 of the Constitution.
(c) V. Revathi v. Union of India, AIR 1988 SC 835 –
There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. Section 198 Cr.P.C. is not vulnerable to the charge of hostile discrimination against a woman. The law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.
4. Stand of Apex Court in Joseph Shine vs. Union of India (2017-2018)
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. The matter was heard by the Hon’ble Court on 8 December, 2017 and 5 January, 2018 –
Views of the Apex Court
- No discrimination has been practised in circumscribing the scope of Section 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.
- A time has come when the society must realise 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,
- The provision seems quite archaic and especially when there is a societal progress. Thus analyzed, we think it appropriate that the earlier judgments required to be reconsidered regard being had to the social progression, perceptual shift, gender equality and gender sensitivity.
- There has to be a different kind of focus on the affirmative right conferred on women under Article 15 of the Constitution.
- We think it appropriate to refer the matter to a Constitution Bench.
Today, adultery is no longer an offence in the most Western world (European nations). It is still punishable in Saudi Arabia, Pakistan, Philippines, India etc. In 2012, a United Nations group of independent experts urged countries to eliminate laws that classify adultery as a criminal offence. The Group submitted that criminalizing sexual relations between consenting adults violates their right to privacy.
In the light of the above developments, it is hoped that either the Parliament would decrease the existing punishment for an offence under Section 497, IPC or the Constitution Bench of the Hon’ble Supreme Court while examining its constitutional validity would soon redefine it.
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