Law
of adultery as it stands in India punishes only man, and assumes that in all
cases ‘man is the seducer’ and the women, who is an equal participant is viewed
as a victim. There have been numerous debates about the discriminatory stance
of the provision, The insistence of the National commission for women and the
report of the Madhav Menon committee & the 42nd Report of the Law
Commission of India, have breathed a new lease of life in the dying
controversy. The law relating to adultery as existing in the Indian penal code
under section 497 has been criticized ever since it’s commencement. Its
validity both on the constitutional grounds as well as philosophical grounds
has been challenged time and again. But the law still stands as it is.
Law
of adultery as it stands in India.
In
India the law of adultery is punishable under section 497 of the IPC, but
originally the framers of the code did not make adultery an offence punishable
under the Code, it was the Second law commission which after giving mature
consideration to the subject, came to the conclusion that it was not advisable
to exclude this offence from the Code. Adultery figures in the penal law of
many nations and some of the most celebrated English Lawyers have considered its omission
from the English Law as a defect.
Section
497 [2]provides:“Whoever has sexual intercourse with a person who is and whom
he known 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 a case the wife shall not be punishable
as an abettor.
The
law commissioners have limited the cognizance of this offence to adultery
committed with a married woman, and the male offender alone has been made
liable to punishment.
The
Problem
Prima
facie unequal treatment is meted out by the law to men & women, there’s an
inherent flaw, It makes the offence punishable for men but not the wife, to
punish the man severely and to let the women who was an equal part to go scot
free is unreasonable on the face of it, it is discriminatory that for the same
act the man becomes the manifestation of evil but the woman still is considered
to retain her virtues and is treated as a victim.
It
is unexplainable that for the same wrongful act the man is presumed by the law
to have a mens rea while no such presumption is attributed in reference to the
woman.
The
consent or the willingness of the woman is no impediment to the application of
this section, and, as generally happens, she is quite aware of the purpose for
which she is quitting her husband and is an assenting party to it.
Considering
the present day situation and the vast transformation which the society has
undergone, Blindly assuming that ‘man is the seducer and not the women’ would
be a dangerous proposition, the boot is on the other leg these days, in a
variety of cases. The law makes an irrational classification between man and
woman, in restricting the class of offenders to men, where women or wife is an
equal partner, it violates constitutional provisions enshrined in Articles
14,15 & 21.
The
Justification taken by the Framers of the Code, and the retentionists lobby for
this aberration is that owing to the atypical social conditions, it would not
be just & proper to punish women equally, as they were a subjugated and
exploited lot, and I am constrained to say that it was to a certain extent
applicable in that era, now bygone.
The
IPC, when in took form in 1860, was silent on the punishment for adultery with
Lord Macaulay observing, "There are some peculiarities in the state of
society in this country which may well lead a humane man to pause before he
determines to punish the infidelity of wives."
The
Rationale & the circumstances he referred to included child marriage and
polygamy. Macaulay, hence, advised that it would be enough to treat it as a
civil injury.
The
framers of the code believed that if the women did the deplorable act it was
pressured by their social and private conditions in life. Hence they were
actually not at fault and taking into account their already depleted station in
life they should not have been held liable at least in the eyes of the law.
Supreme
Court On Law Of Adultery:
In
1951, one Yusuf Abdul Aziz challenged the constitutional validity of the
provision. However, Bombay high court chief justice M C Chagla had upheld the
provision saying the Constitution permitted such special legislation
for women, it was held in this case that this section does not contravene any
of the fundamental rights laid down in the Constitution of India, and
therefore it is not bad or void under Articles 13. [3]
The
Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial
home. Thus charges are pressed against the outsider who breaks the said
sanctity. The woman, in cases of adultery, is considered the victim of a
seducer. It appears that the court believes that the man has an unstoppable
seductive charm and the woman is helpless against it. The evil that is punished
by the law, in the mind of the court, is that of seduction of a woman by
another man. According to the court the woman is considered to be the victim.
Thus the court held that the law was non discriminatory and not violating the
right to equality , thus the court upheld the constitutional validity of the
section 497. The court also opined that by not allowing the spouses to
prosecute each other the law offers a chance to the spouse to make-up, it was further
held that “Section 497 is not violative of Articles 14, 15 & 21 of the Constitution.
[4]
It
is humbly submitted that the court erred in its judgment.
We
must keep in mind that these reasons and defenses were given decades ago. The
most important reason for debate to get re-ignited is the drastic change in the
social status of women. Gone are the days when Women were a suppressed or
subjugated lot, The practices of sati, child marriage, polygamy, etc, have been
done away with.
Today
there are laws against these evils and also laws providing effective relief
against heinous acts such as domestic violence, dowry and others. Almost all
professional colleges has a quota for women. Thus women today are in no way
inferior to men or suppressed, and are at par with the opposite sex. The
effective implementation of these laws and other women friendly provisions in
the constitution insures that women, today, have an edge in the society. All
this has resulted in them gaining the power of choice. They can no longer be
classified as victims in cases of adultery.
What
Needs To Be Done ?
It
is pertinent to note here that The 42nd Law Commission Report [5] has suggested
to substitute section 497 of the IPC, the substituting provision is “S. 497.
Adultery – Whoever has sexual intercourse with a person who is, and whom he or
she knows, or has reason to believe, to be the wife or husband, as the case may
be, of another person, without the consent or connivance of that other person,
such sexual intercourse by the man not amounting to the offence of rape commits
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”
The
Malimath Committee on Criminal Justice Reforms has re-iterated more or less the
same argument, that men and women being equally partners in the deplorable act,
should be made to stand at the same footing, and equal treatment should be
meted out to them both.
Conclusion
In
light of the above critical analysis, it is very much apparent & beyond
doubt, that the prevailing law is not in consonance with the changed times, the
law is neither socially apt nor does it stand to the principles of equality,
from absolute conservatism to absolute liberty, the social fabric of our
country has undergone a drastic change. It is high time that Recommendations
made by the Justice Malimath Committee and the 42nd Report of the Law
Commission be taken into consideration religiously, and necessary amendments be
made to Sec. 497 IPC, so as to do away with the irregularities, and in the
interest of doctrine of equality.
SOURCE: lawyersclubindia