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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.

History: Why it was enacted in 1860

Dhananjay Mahapatra, September 28, 2018: The Times of India

Why it was enacted in 1860, why it had to go now

Justice Rohinton F Nariman said almost all ancient civilisations punished the “sin of adultery” and Hammurabi’s Code of 1754 BC prescribed death by drowning as punishment for the offence, be it by the wife or the husband.

“In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment — thou shalt not commit adultery — set out in the book of Exodus in the Old Testament. Equally, since the wages of sin is death, the book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress,” he said.

“In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St Paul’s 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,” he added.

In India, too, Manusmriti provided for punishment for those addicted to intercourse with other men’s wives “by punishment which cause terror, followed by banishment”, Justice Nariman said. “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. 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,” he added.

“In Islam, in An-Nur, namely Chapter 24 of the Quran, Verse 2 reads 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 Allah and the last day, and let a party of believers witness their chastisement’,” he said.

Justice Nariman said in 17th century England, adultery was only a ground for divorce but became a capital offence in Cromwell’s puritanical England in 1650, which was nullified as soon as King Charles II came back to restore monarchy. He said in the first draft of IPC by Lord Macaulay, he had refused to make adultery a penal offence.

Narrating the adultery scenario in India, Justice Nariman said, “The background in which this provision was enacted now needs to be stated. In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955.

“It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the ‘Hindu Code’, so to speak, a Hindu man can marry only one wife, and adultery has been made a ground for divorce in Hindu law.”

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

Law biased against married men?

Dhananjay Mahapatra, December 9, 2017: The Times of India

Why punish married men alone for adultery, asks SC

The Supreme Court agreed to examine the constitutional validity of a 157-year-old “gender discriminatory” provision in the Indian Penal Code that punishes a married man for adultery for having consensual sexual relations with another man’s wife but spares women in extra-marital relationships.

Saying a closer look at the issue was required, a bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said, “Prima facie, on perusal of Section 497 of the Indian Penal Code, we find 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.”

Clean chit to woman made SC examine law

Ordinarily, 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, the bench said.

Section 497 states, “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.”

The bench noted that while the woman was an equal partner to the offence under IPC Section 497, she was not held guilty or at par with the adulterous man and felt a closer examination of the issue was required.

The judges acknowledged that the provision was prima facie “archaic” and gave the Centre four weeks to respond to a PIL by Joseph Shine from Kerala, who lives in Trento, Italy, on why a married man alone, and not the consenting wife of another, should be hauled up.

What persuaded the SC to examine the constitutional validity of the archaic provision was the clean chit given to the woman, irrespective of her role in the adulterous relationship, as also counsel Kaleeswaram Raj’s argument that as per Section 497, no offence of adultery was committed if there were consensual sexual relations between an unmarried man and an unmarried woman, an unmarried man and a married woman; and between a married man and an unmarried woman.

The apex court spotted another aberration in Section 497 as well — the one which provides that it is not adultery if a married man has a sexual relationship with a married woman with her husband’s consent or connivance. The bench wondered whether this would not amount to treating a woman as her husband’s commodity to such an extent that his consent would nullify what would otherwise be an offence under the IPC.

The bench said, “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 tantamounts to subordination of a woman where the Constitution confers equal status.”

A time has come when society must realise that a woman is equal to a man... This provision... appears to be quite archaic. When society progresses and rights are conferred, new generation of thoughts spring... we are inclined to issue notice — SC BENCH

SC: Punishing only men flouts right to equality

Dhananjay Mahapatra, SC: Punishing only men for adultery flouts right to equality, August 2, 2018: The Times of India

A five-judge bench of the Supreme Court said on Wednesday that making only men liable for punishment for the offence of adultery appeared to violate the right to equality before law under Article 14 of the Constitution.

Commencing hearing on a PIL by Joseph Shine, a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra initially contemplated referring it to a seven-judge bench but decided to continue. The petitioner’s counsel, Kaleeswaram Raj, said a four-judge SC bench had in 1954 upheld the validity of Section 497 on the ground that Article 15 permitted special laws for women and children.

‘Section 497 treats women as chattel of their husbands’

He said in today’s time it was inconceivable that a man having intercourse with another woman without her husband’s consent or connivance would be prosecuted and face a jail term of up to five years, while the woman, despite being an equal partner in the crime, would go scot free.

Appearing for NGO Partners for Law in Development, senior advocate Meenakshi Arora said Section 497, which makes adultery a crime for men, must be struck down because it treats women as chattel of their husbands by providing that it is not adultery if a man has intercourse with a woman with the consent of her husband.

The CJI-led bench said, “If adultery gets scrapped as a crime for violating Article 14, then no one, neither the man nor the woman, will be punished. Adultery can be ground for divorce and other civil consequences.” The hearing will continue.

The Centre, in its affidavit, has argued that decriminalising Section 497 of the Indian Penal Code (IPC), which punishes only a man for adultery, would wreak havoc to the institution of marriage. It said: “Striking down of the provision would be tantamount to decriminalising the offence of adultery, thereby eroding the sanctity of marriage and the fabric of society at large.”

 SC rejects govt’s plea to make law gender neutral

Dhananjay Mahapatra, SC rejects govt’s plea to make adultery law gender neutral, August 9, 2018: The Times of India

Act Consensual, Can’t Be Categorised As Public Wrong, Says Court

The Supreme Court rejected the Centre’s plea to make Section 497 of IPC, which punishes only a married man for adultery while absolving the woman, gender neutral to punish both men and women if they strayed from marriage.

Appearing for the Centre, additional solicitor general Pinky Anand said, “Adultery is a public wrong which harms an important social institution in marriage as well as wife and children, and hence can be classified as a public wrong. If the provision appears discriminatory then it can be read down to make it gender neutral so that both men and women can be punished for adultery.”

But a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandracud and Indu Malhotra said: “Gender neutrality cannot make adultery an offence as the act is consensual. It may have civil remedies like being a ground for divorce but it cannot be categorised as public wrong as none of the consenting married adults accused of adultery complain that any one of them has been abused. Making it gender neutral would result in gymnastics.”

Anand said the court could read down the provision for public good if it found Section 497 discriminatory as it provided that no offence of adultery was committed if a married man had sexual relationship with another married woman with the consent or connivance of her husband.

Before reserving verdict on a PIL by Joseph Shine, the bench said: “We will strike it down and if the legislature feels public good will be served by making adultery offence gender neutral, it was free to do so.” Justice Nariman said: “The heart of the provision is that a cuckold husband can lodge a complaint against the paramour of his wife because he thinks his wife is his property.”

The CJI asked since adultery was a consensual act, why should it be a crime. “It is like calling a person for dinner and then getting him booked for house trespass,” he said.

CJI Misra and Justice Chandrachud said: “Adultery may not be the cause for a broken marriage but a consequence thereof. Many a time, a party to a marriage wants divorce after a marriage has broken down, but the case goes on for years in the court. If the woman finds solace, love and affection in another man, should that man be booked for adultery by her estranged husband just because the marriage has not been annulled through divorce?”

'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 .“