Adultery Law: Supreme Court looks back to move forward

The son appears set to undo what his father did exactly 32 years ago. The father, then chief justice of India (CJI) YV Chandrachud, authored a judgment reaffirming that in cases of adultery only the man can be punished and the woman would not be liable even as an abettor. Last month, however, apparently differing with his father, justice DY Chandrachud, as part of a threejudge bench of the Supreme Court, agreed to re-examine the provision, dubbing it as‘archaic’. The court accordingly issued notice on a public interest litigation challenging the constitutionality of Section 497 IPC dealing with adultery, read with Section 198(2) of the Code of Criminal Procedure (CrPC).

Section 497 IPC says, “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 .... In such case the wife shall not be punishable as an abettor.”

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.”

BACKGROUND

The petitioner’s counsel submitted that the above provision was agitated thrice in the apex court in 1954, 1985 and 1988. He drew attention to the 1985 case of Sowmithri Vishnu v/s Union of India, in particular, wherein a four-judge bench headed by then CJI YV Chandrachud while upholding the constitutionality of Section 497 said, “It is commonly accepted that it is the man who is the seducer and not the woman. This position might have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately...”

Though the modern trend worldwide is to decriminalise adultery, many cultures have historically regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery. In most cultures, both the man and the woman are equally punishable. However, according to ancient Hindu law, in ancient Greece and in Roman law, only the offending female spouse could be killed while men were not heavily punished.

WHAT IS UNDER SCRUTINY?

Irked by the Victorian provision treating a married woman as her husband’s ‘subordinate’, the SC has ostensibly taken a plunge to nullify adultery as a criminal offence. It would examine two aspects. One, why does Section 497 treat the man as the adulterer and the married woman as a victim? Two, the offence ceases the moment it is established that the husband connived or consented to the adulterous act. Does it mean that a married woman was the ‘property’ of her husband? Further, only a husband or the person in whose care the husband has left his wife can file a complaint under Section 497. The petition also challenges the validity of Section 198 (1) and (2) of the CrPC, which deem only the husband to be an aggrieved party.

ANALYSING SECTION 497

Section 497 does not penalise the sexual intercourse of a man with an unmarried woman or a widow or a divorcee or even a married woman when her husband consents to it provided it does not amount to rape. Surprisingly, only the ‘trespassing’ adulterer can be prosecuted while the treacherous wife cannot be tried even as an abettor. The offence of adultery, therefore, is an offence committed against the husband of the woman.

The constitutionality of Section 497 was challenged under Article 14 that it makes an arbitrary discrimination based on sex. In the case of Yusuf Aziz, the SC ruled that the immunity granted to women under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution. In the cases of Sowmithri and V Revathi, it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. To add, while adjudicating the constitutionality, the ‘object’ of Section 497 was never agitated.

DECRIMINALISING ADULTERY

In view of the marriage being both sacrament and a civil contract, the National Commission for Women has recommended that adultery should be made only a civil wrong with which the SC tends to agree so that the husband and the wife do not keep bouncing each other with the arsenal of criminal law.

Many western countries, including Austria, the Netherlands, Belgium, Sweden and even Britain from whom we have borrowed most of our laws have already decriminalised adultery. In the United States, in those states where adultery is still on the statute books, offenders are seldom prosecuted.

The definition of adultery in matrimonial laws is much wider than that of adultery as a crime. Women have now begun fluttering their identity and are no more a mere chattel. There does not appear to be any rationale to retain adultery on the penal statute book since our personal laws are adequate to tackle adultery as a civil wrong.

As it appears, the SC looks all set to decriminalise the offence of adultery, in conformity with the changing milieu worldwide.

THEN CJI YV CHANDRACHUD, AUTHORED A JUDGMENT REAFFIRMING THAT IN CASES OF ADULTERY ONLY THE MAN CAN BE PUNISHED. LAST MONTH, JUSTICE DY CHANDRACHUD AGREED TO REEXAMINE THE PROVISION