Revision as of 14:12, 9 December 2017

Historial overview

The Times of India, Jul 17 2015

Manoj Mitta

Wife is private property, so no trespassing

India has criminalized only one form of adultery: extramarital sex by the wife. Her lover can be jailed up to five years

When Lord Macaulay did the first draft of the Indian Penal Code (IPC) in 1837, adultery was very much recognized as a crime in England and France. Yet, he chose to keep adultery out of his draft because of the polygamy then prevalent among Hindus and Muslims in India. “To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt,“ Macaulay wrote.A decade later, those who worked further on the draft IPC did not think it advisable to exclude adultery from it even as they relied on Macaulay's note to exempt women from punishment for it. “In deference to it, we would render the male offender alone liable to punishment,“ the colonial law commissioners recorded in 1847. Though most liberal democracies have since decriminalized adultery, India is still stuck with Section 497 IPC, exactly as it was enacted in 1860 against the backdrop of pervasive polygamy . The Victorian legacy remains even after the constitutionality of this discriminatory provision was challenged successively before the Supreme Court by both sides of the gender divide. The first time the Supreme Court upheld Section 497 was in 1954, a year before the abolition of polygamy for Hindus, and it happened to be on a challenge filed by a Muslim husband.

No licence to cheat

Yusuf Abdul Aziz had no issue with the stipulation that only the husband could invoke the adultery law.His grievance was that the male offender alone -the wife's lover -was liable to be punished for adultery (with imprisonment up to five years) while the wife could not be prosecuted even as an abettor. Insofar as the Constitution was concerned, the bone of contention was Article 15(3) which clarified that the equality guarantee did not prevent the state from “making any special provision for women“. Aziz had argued that Article 15(3) “should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes“. Speaking through Justice Vivian Bose, the apex court ruled that it was “unable to read any such restriction“ into Article 15(3). At the same time, it disagreed that the prohibition in Section 497 on punishment for women was “tantamount to a licence to commit the offence“.

Since Aziz's challenge was limited to the clause exempting the wife from punishment, Bose never got to examine the deeper flaws of Section 497 which, regardless of Macaulay's pious intention, ends up reinforcing the patriarchal notion that the wife is the property of her husband and therefore has no cor responding rights. The Law Commission could well have ad dressed this fundamental problem with Section 497 when it reviewed the IPC in 1971. But, reflecting Aziz's male perspective, all it did was to recommend the deletion of the clause exempting the wife from punishment for adultery . Anna Chandi, the only female member in that commission, wrote a note of dissent pointing out that the deletion of that exemption would not cause any damage to the basic idea of the wife being the property of the husband.Instead, a new dimension would be added to it, as Chandi said, “by making not only the trespasser but the property also liable to punishment“.

Romantic paternalism

But the Supreme Court again upheld Section 497 in 1985, this time rejecting the challenge mounted by a woman echoing Chandi's critique.Sowmithri Vishnu had argued that though Section 497 might seem to be gender-sensitive, it actually contained “a kind of romantic paternalism, which stems from the assumption that women, like chattels, are the property of men“. The judgment authored by Chief Justice Y V Chandrachud held: “These contentions have a strong emotive appeal but they have no valid legal basis to rest upon.“ This is the cursory manner in which it rejected each of the three legal objections raised by Vishnu.

While empowering the husband to prosecute the adulterer , Section 497 does not give any right to the wife to prosecute the woman with whom her husband has committed adultery. The SC said: “It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately .“

Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery.Since the offence of adultery as defined in that section could only be committed by a man and since it provided expressly that the wife could not be prosecuted even as an abettor, the Supreme Court said: “No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery .“ Section 497 gives a licence to the husband to have sexual relationships with unmarried women. “The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another,“ the apex court said. As for the petitioner's contention that women too, whether married or not, could wreck the matrimonial homes of others, the court shrugged it off saying, “We hope this is not too right but an under-inclusive definition is not necessarily discriminatory.“ It added rather gratuitously that the demand for including the husband's sexual relationship with an unmarried woman in the definition of adultery was “a crusade by a woman against a woman“.

Skewed law

Whatever its deficiencies, the Supreme Court verdict in Sowmithri Vishnu's case is, as of now, the last word on the skewed criminal provision against adultery . Though the erring spouses have no remedy against each other in Section 497 IPC, each one has a remedy against the other under the civil law, for divorce on the ground of adultery .Besides, adultery under the civil law takes in all possible scenarios.The adultery factor plays a role in determining custody and alimony issues as well. Given the options available in the civil law, it's high time India followed the example of advanced countries in doing away with the notion of criminalizing consensual sex between adults as a measure of protecting the sanctity of marriage. This is exactly what was suggested in 2006 by the National Commission of Women in preference to the alternative of making the criminal provision more gender neutral. Macaulay was right in disfavouring a criminal provision against adultery , even if it was for reasons that have little to do with today's India.

Superior courts' judgements, views

'A few lapses are not adultery’

The Times of India, Oct 11 2015

Gujarat court says a few lapses not adultery, HC backs it 

The Gujarat high court has upheld a lower court's definition of adultery, where it said that a couple of lapses in behaviour, if they are unwitting, cannot be called adultery.However, a singular premeditated act of sexual intercourse by one spouse with another person would be adultery . The HC upheld these observations while refusing maintenance to a wife, who admittedly was found living an adulterous life. The court also upheld the payment of maintenance to a minor child by his father, but not to the wife because she was in a relationship with a third person. This case is from Patan district. The woman unsuccessfully moved a magisterial court for alimony according to the provisions of section 125 of the CrPC.

She then approached a sessions court, which also denied her maintenance. In its order, the sessions court said: “One or two lapses or an occasional incident may be condoned, provided that they are unwitting.Sometimes, a situation arises whereupon, even without design or thought in mind, a young person may indulge in an intimate act. But an act of sexual intercourse by a spouse with another person, predetermined or preconceptualized, even if it is a singular act, would be adultery .“