Is adultery law in India not offensive to the dignity of the women? Does it not treat women as the chattel of her husband? Is it not discriminatory against men and therefore repugnant to the equality of men and women? These are the questions which have been agitating the men and women both from the time of the adoption of the Constitution of India. Adultery is a voluntary sexual activity by a married woman with another married or unmarried man. Although it is a voluntary sexual activity between man and woman but the provision for the punishment is only for the men and not women. This is the reason that there has been a consistent demand for scrapping of Section 497 IPC to make it sync with the times. It says 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.
A sexual link between a married or unmarried man and an unmarried woman or a divorcee or a widow, therefore, does not come within the ambit of adultery. It also holds the man and not the (adulteress) wife of another man, who has been unfaithful to her husband, solely responsible for the sexual liaison. IPC thus views adultery as an invasion of the right of the husband over his wife. Recently this question again came up before the Supreme Court in ‘Joseph Shine vs Union of India’and as a result of it the Court issued the notice to the government to know its opinion so that, a finality could be given to it.
In its previous judgement in ‘Sowmitri Vishnu vs Union of India’, the Supreme Court had ruled that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery is considered as an offence against the sanctity of the matrimonial home and it is committed by a man, not a woman. Therefore, those men who defile that sanctity are brought within the net of the law. Who can prosecute who for which offence depends firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute? Section 198 (2) of the Criminal Procedure Code provides the right to prosecute only to the adulterer by the aggrieved husband of the adulteress.
The argument is that the husband should have the right to prosecute the infidel wife in the same way as the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right to prosecute his wife, in as much as by the very definition of the offence, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goodwill is promoted by permitting them to ‘makeup’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court. They can either condone the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing the divorce. They are not enabled to send each other to jail. Perhaps the idea behind it is that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence.
The Courts have kept their hands off by saying that they are not the arbiter of the wisdom of the law. They are merely the arbiter of the constitutionality of the law. Section 497 and section 198(2) of the CrPC go hand in hand and 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 unit. The ‘outsider’ breaks into the matrimonial home and occasions the violation of the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses, subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to nor the wife can prosecute the husband and send him to jail. 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. A husband is not permitted to prosecute the wife because she is not treated an offender in the eye of law. Thus, 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.
Section 497 IPC read with Section 198 CrPC, thus signifies the unequal status of “husband” and “wife” in the institution of marriage in India. It declares that: (i) man is a seducer and the married woman is merely his hapless and passive victim, (ii) he trespasses upon another man’s marital property i.e. his wife by establishing a sexual liaison with the married woman with her consent but without the consent or connivance of her husband, (iii) husband of the adulteress wife is an aggrieved party and he (in some cases a person who had to care the married woman when the adultery was committed), therefore, he is authorised to make a formal complaint, (iv) wife of the man, who had consensual sexual intercourse with another woman, married or unmarried, is not deemed to be an aggrieved party and thereby is precluded from making a formal complaint against either her husband or the adulteress woman, and (v) a married man, with impunity, may seduce and establish sexual liaison with an unmarried woman, a widow, or a divorcee even though such a sexual link is equally potential to wreck the marriage between him and his wife.
Immediately after the commencement of the Constitution, Section 497 IPC was assailed inYusuf Abdul case on the ground that it militates against the spirit of equality as embodied in the Constitution. The Apex Court responded: ‘We are not able to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence It was contended that Section 497, being contrary to Article 14 of the Constitution, makes an irrational classification between women and men as it: (i) confers upon the husband the right to prosecute the adulterer but it does not confer a corresponding right upon the wife to prosecute the woman with whom her husband has committed adultery, (ii) does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and (iii) does not take in its ambit the cases where the husband has sexual relations with unmarried women, with the result that the husbands have a free licence under the law to have extramarital relationship with unmarried women.
Assuming that the right to be heard is concomitant with the principles of natural justice and believing that a trial court allows the married woman to depose her say before it records adverse findings against her, the Apex Court held that the absence of a provision mandating hearing the adulteress wife in Section 497 does not make the section unconstitutional. Such judicial reasoning, in the ultimate analysis, unfortunately, endorses the patriarchal, property-oriented and gender-discriminatory penal law of adultery. It conveys that a man is entitled to have exclusive possession of, and access to, his wife’s sexuality, and a woman is not eligible to have such an exclusive right and claim over her husband. She is, therefore, not entitled to prosecute either her promiscuous husband or the “outsider woman” who has poisoned her matrimonial home.
It, therefore, suggests that the wife is the husband’s property as it reserves for the husband the right to move the law for punishing any trespass on it, while not giving the wife any corresponding right to complain against any transgressions on the part of or relating to her husband. The existing law of adultery is retrogressive and unequal and hence needs to be relooked, which is what the Supreme Court has decided to do.