The purpose of this research article is to review the penal provision of adultery as stated under section 497 of the Penal Code 1860 (hereinafter referred as the IPC) and to analyze the consequences of reintroduction of adultery. The punishment of adultery was codified more than 150 years ago considering the vulnerable position of women under the social structure of the erstwhile Indian sub-continent. Though the society has undergone much historical, political, economic and value-based development within this long period of time, surprisingly the penal provision of adultery remained stagnant in the same place for a long time until the historic judgment of Supreme Court in Joseph Shine vs. Union of India. The act of adultery in itself cannot make or break the institution of marriage unless there existed deep rooted cracks already.
The objective of the article is to achieve the following goals:
- Firstly, to represent the existing provision of adultery under the IPC.
- Secondly, to find out the reason of immunity of woman from the charge of adultery.
- Thirdly, to address such debated issue of exemption from the legal point of view and under the present social context.
- Fourthly, to discuss about the reintroduction of adultery in the present context.
ADULTERY: INTRODUCTION AND ANALYSIS
Generally, adultery refers to the illegitimate relationship with the opposite sex; sexual intercourse between individuals who are not married to each other. The term ‘adultery’ has its origin in the Latin term ‘adulterium’. The term comes from the words ‘ad’ (towards) and ‘alter’ (other). At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse. Under the Common Law, the crime of fornication consisted of unlawful sexual intercourse between a married woman and a man, regardless of his marital status is adultery. Almost every religion condemns it and treats it as an unpardonable sin. However, this is not reflected in the penal laws of countries.
Adultery is an offence which is committed by a third person against a husband in respect of his wife and of which a man can alone be held liable for the offence. Adultery is considered to be an invasion to the right of the husband over his married wife. The law of adultery is not applied on a woman and has been expressly provided that the woman cannot be held for abetment of the offence. The object of the law is to inflict punishment on those who interfere with the sacred relation of marriage, as it is considered to be an offence against the sacred matrimonial tie. It is commonly accepted that it is the man who is the seducer and not the woman, and it is considered as an anti-social and illegal act by any peace lover and citizen of good morals.
Lord Macaulay, who was instrumental in the early drafting process, gave due consideration to the possibility of criminalising adultery in India. He concluded it would serve little purpose. For him, the possible benefits from an adultery offence would be better achieved through pecuniary compensation in most cases. He accepted that for the other cases the law could never provide a satisfactory solution in dealing with marital infidelity given the sacramental nature of marriage. Those involved with finalising the IPC disagreed and gave us Section 497. Consequently, one must turn to the experience of various committees and the courts in their dealing with Section 497 for assistance in determining the intent behind criminalisation. In one of its more ambitious projects, the Law Commission of India undertook a comprehensive revision of the IPC, culminating in the 42nd Report by that Commission.
The Report provided information about the legislative history of Section 497, and offered a comparison with the position in France, England, and the United States of America. The Commission posed itself questions not dissimilar to the ones we are focusing upon here: doubting both the criminalisation of adultery per se and its particular manifestation in Section 497. After casting grave doubts over the purported benefit of criminal actions for adulterous conduct, the Commission noted that “though some of us were personally inclined to recommend repeal of the section, we think on the whole that the time has not yet come for making such a radical change in the existing position”.
The Commission did, however, recommend an amendment: removal of the exemption from liability for women, and reduction of sentence from five to two years. The Report does not indicate what led the Commission to think abolishing adultery as radical, nor does it furnish any justifications. The Amendment never occurred, but the thought was followed up in the next attempt at revising the IPC which culminated in the 156th Report of the Commission. Here, the observations made in the 42nd Report were reiterated along with quoted excerpts from the decision of the Supreme Court in Sowmithri Vishnu v. Union of India, where the Court observed any changes to Section 497 must originate from the Legislature and not the Court. In a proposal which it believed reflected the “‘transformation’ which the society has undergone”, the Commission suggested removing the exemption from liability for women while retaining the five year imprisonment. [4: AIR1985SC1618]
BACKGROUND ANALYSIS: MYTHS AND RELIGION
The concerned social notions are often justified in the name of Indian culture and Indian tradition. Therefore, as Romila Thapar has pointed out in a recent work, the social mindset produced by these notions often search for the solution in limiting the freedom of the victim — like incarcerating women at home after dark, not allowing girls to use cell phones to stop them from contacting boys, suggesting the repetition of the ‘Saraswati Mantra’ for a woman about to be raped or the observance of a ‘Lakshman Rekha’, etc. — rather than searching for the root of the problem. It is often the same social mentality that calls for the death penalty of the rapists on the ground that a raped woman is nothing but a living corpse. Similar cultural mores lead to the insensitive statements of the Chief Minister and Home Minister of Uttar Pradesh about rape, including the presentation of rape as an error committed by the boys, alleging the free mingling of boys and girls as the cause of rape, and describing rape as ‘sometimes right and sometimes wrong.’
The institution of marriage is shown as an institution of giving away the daughter to a man. Women and property are often referred to jointly, and the necessity to protect both is pointed out. It is declared that the vice of anarchy is that property cannot be retained and the wife is not under control. In fact, kingship emerged to ensure the security of property and women, while the first.
king accepted this duty in return for a share of the property and women of his subjects. Women are not only conceived as a desirable possession bestowed by the wish-fulfilling tree, they are often bracketed with animal wealth, probably being considered as movable property. Like any property, they could be sold, mortgaged or given away.
According to the Garuḍa Purāṇa, a man should defend himself at the cost of his wealth and wife. Having a similar idea, king HariŚcandra gives away his wife to appease ViŚvāmitra, in the Mārkaṇḍeya Purāṇa. The Agni Purāṇa also gives an interest rate of 1/70th of the original value for the pledged women and animal. Vijay Nath has observed that lawgivers like Āpastamba, Manu and Yājñavalkya are of the opinion that family members cannot be gifted, sold or pledged. Manu clearly differentiates the wife, obtained from God, from cattle or gold, obtainable in the market. [8: Garuḍa Purāṇa, 109.1 (M.N. Dutt trans. & ed., Delhi, 2009).]
However, these only demarcate women’s status as a different kind of property, but do not negate the idea of women being labelled as property. Manu declares: “In her childhood (a girl) shall be under the will of her father; in (her) youth, of (her) husband; her husband being dead, of her sons; a woman should never enjoy her free will.”
Seen in this light, a woman’s body being marked out as husband’s property is part of ancient Indian legal tradition. The present Indian state still bears the Hindu Laws and Muslim Laws, partly as legacies of that colonial mistake. The Manusmṛti, being one of the earliest Sanskrit texts translated into English, had an immense impact on the colonial understanding of early India. As a result, early India was seen only as the land of religious speculation, the laws of Manu, the chastity-obsession of Sita and Anasuya, and the country of the Sati system; whereas the erotic literature of Amaru and Bhartṛhari, Kaalidasa and Jayadeva, the decorations on the temples of Khajuraho or Konarak, the pragmatic diplomacy of Kauṭilya and the shrewd pleasure-seeking of Vatsyayana, the polyandry of Draupadi and the charm of Ambapali were receded to the background. A female’s modesty and integrity was to be preserved by keeping her body protected from the access of other males. These notions were in a manner shared by Manu, Al-Hanifa and Macaulay.
ADULTERY: INFRINGEMENT OF RIGHT TO PROPERTY- FROM MANU TO JUSTICE CHANDRACHUD.
One of the biggest markers of the woman’s status as husband’s property is the gendered concept of adultery. All the law-givers who conceived the female body as an exclusive property of the husband saw adultery as a serious offence.
Manu defined adultery as: “He who addressed the wife of another at a watering-place, in a forest or wood, or at the union of rivers, would incur (the sin of) adultery.
Attendance upon her, sporting with her, touching her ornaments or clothes, sitting upon a bed with her, all this is called adultery.
If any man touches a woman upon an improper part (of her body), or being thus touched by her submits to it with patience, this is all called adultery, (if done) by mutual consent.”
Manu takes it as one of the most serious offences and suggests capital punishment for any non-brāhmaṇa committing adultery. He also suggests different amounts of fine for the adulterous men, depending on their varṇa and the varṇa of their female partner The clear suggestion is that adultery is a serious violation of another man’s property (wife’s body). The violation can be of several levels, and the punishment has to be proportionate. The violator has to be the man only, for only one worthy of possessing or enjoying a property can violate another’s property rights. The woman, being herself the property, has no say in the matter. Therefore, a relationship which she consents to is also a criminal offence.
However, this consent would be a violation of her husband’s ownership over her body. That is a dangerous possibility: a man’s right to property being disregarded because of the agency of the property itself. Manu, therefore, prescribes the highest punishment for such an instance, not just death but something worse than that: “…the king should have her devoured by dogs in some much-frequented place.”
Manu’s spirit is faithfully retained by the subsequent lawgivers. Narada, for instance, clarifies the three different grades of adultery as meeting with another man’s wife in an unseasonable hour or place, sitting and conversing with her, and being sexually involved. Narada’s punishments are a bit milder a middling fine for adultery with a woman of lower caste, the highest fine for adultery with a woman of own caste, but capital punishment for adultery with a woman of superior caste. The woman participating in the act has been prescribed certain penances, including having her hair shaved, lying on a low couch, receiving bad food and bad clothing, and being assigned the job of a sweeper.
Bŗhaspati also tries to make the punishments lighter by distinguishing between the different grades of adultery: “Winking (at a woman), smiling (at her), sending her messengers, and touching her ornaments or clothes is termed an adulterous act of the first (or lowest) degree.
Sending perfumes, garlands, fruit, spirituous liquor, food, or clothes, and conversing with her in secret, is considered an adulterous act of the second degree. Sitting on the same bed, dallying, and kissing or embracing each other, is defined as an adulterous act of the highest degree by persons acquainted with law.”
For these three grades of adultery, the first, middling and highest fines shall be inflicted respectively. Bṛhaspati’s mercy to the woman seems to be on the ground that the woman is nothing but the object at stake, without agency.
The epics contain the story of the hero Parasurāma which tells how he beheaded his own mother Reṇukā who was aroused by seeing king Citrasena in water-sport and thus committed an offence of adultery against her husband Jamadagni who ordered her to be beheaded. This story, a legend of the Bhṛgu clan to which Manu also belonged, matches the spirit of Manu. On the other hand, the Rāmāyaṇa contains the story of Ahalyā, the wife of the sage Gautama, who consented to an adulterous advance by Indra. There, Indra is punished by the sage’s curse, while Ahalyā is cursed to a long and severe penance, as Nārada would want it to be. The same epic also shows Śūrpanakhā, the sister of Rāvaṇa, trying to seduce Rāma and Lakṣmaṇa, an act punished by mutilating her nose and ears, as Bṛhaspati would suggest.
It must be mentioned in passing that the conditions seem to have been a shade better in Islamic prescriptive texts. In Islam, marriage is not a sacrament, but a contract. The Prophet Mohammed strongly denounced the customary practice of contemporary Arabia where a woman was considered to be property and was sold to the highest bidder. The Quran (IV.19) declares the marriage to be a contract where both the parties should consent in full knowledge. Thus, adultery is seen in Islam as a violation of a contract, rather than an infringement of the husband’s proprietary right. It is, according to The Quran, an evil opening the road to other evils. Thus, the woman’s agency is accepted in the matter, and the punishment is to be equal for both the parties.
The punishment for adultery in Islam is milder than what the three Brahmanical lawgivers prescribed and it recognizes the agency of both the parties. It also does not consider the loss of ‘chastity’ as the end of a woman’s life, but prescribes that an adulterous woman should be married to only an adulterous man, and vice-versa. However, adultery still remains only the violation of the body of a woman married to someone else, and not the violation of the body of a man married to someone else. The marital contract recognizes the husband’s sole authority over the wife’s body, allowing the husband to legally marry up to four women. So, even in the much reformed language of Islam, the status of the female body is only a shade better than it is in the eyes of Manu, Nārada and Bṛhaspati.
Given the logic, an act like adultery, not sanctioned by Dharma (social ethics), but beneficial to Kāma (pleasure), becomes justified if it brings some material profit (Artha) as well. Vātsyāyana refers to earlier authorities who enlisted such cases where sexual pleasure with another man’s wife is permissible on such a ground.
The Viṣṇu Purāṇa states that the women sported with Kṛṣṇa at night, despite being forbidden by their husbands. Irrespective of the marital status of the women, Kṛṣṇa’s love play is an amorous festive dance in the earlier sources. The Bhāgavata Purāṇa, however, stretches the matter much beyond a simple festive dance in a society with lesser taboos, and makes Kṛṣṇa steal the clothes of the bathing cowherd women and satisfy all kinds of demands of these women who are portrayed as selfless devotees.
Even the law giver Nārada spared some exceptional cases of adultery where the man has intercourse with the wife of one who has left his wife without her fault, or of one impotent or consumptive, if the woman herself consented to it.
However, a look at the Section 497 of the IPC would show that we have not moved much from the time of Manu and Bṛhaspati yet. The Section says: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be 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 punished as an abettor.”
The idea is again, clear. Adultery is an offence committed by a man against a man. The wife, or better to say the wife’s body, is nothing but the property in contestation. Therefore, a sexual union between two consenting adults becomes a crime, but only when the woman is married and not the vice-versa. If the woman is unmarried, there is no law governing such intercourse. Further, the wife has no power whatsoever to sue her husband for adultery with an unmarried or married woman. This, in itself reflects, how a woman is merely treated like a property, subject to transfer and exercise of rights of ownership, possession and enjoyment.
LAW AND THE JUDGMENTS OF THE SUPREME COURT
Since independence, three decisions of the Supreme Court have considered challenges to the constitutional vires of the adultery provisions. Mr. Yusuf Abdul Aziz challenged the exemption from liability made for women under Section 497 IPC, arguing the same was contrary to Article 14 of the Constitution. Having lost at the Bombay High Court, he moved the Supreme Court, and five judges gave the decision in Yusuf Abdul Aziz v. State of Bombay. The Court unanimously held that the exemption for women was protective discrimination safeguarded under Article 15(3) of the Constitution. Importantly, Mr. Aziz did not impugn the validity of the offence itself.
The next landmark decision was Sowmithri Vishnu, delivered by a bench of three judges in 1985. Here, the Petitioner expanded the scope of arguments to impugn the validity of Section 497 as being contrary to Articles 14 and 21 of the Constitution, furthering notions of women as mere chattel. The Court remained unconvinced, and saw these arguments as falling in the realm of policy rather than law. But this did not stop the bench from engaging with the arguments, providing us with a unique insight into how three judges of the Supreme Court viewed matters of marriage and sexuality. Repelling the contention that exempting women from liability violated the equality guarantee, the Court observed that “it is commonly accepted that it is the man who is the seducer and not the woman”.
For the judges, exempting women conveyed the message that “the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime”. The peculiar structure behind the offence was understandable, because it was an “offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law”. In consonance with this idea, the Court quashed the adultery complaint since the complainant husband had obtained a divorce from his allegedly adulterous wife.
In V. Revathi v. Union of India, the Petitioner expanded the scope of her arguments to assail the validity of restrictions placed under Section 198(2) Cr.P.C., which allow only the husband to initiate a prosecution for adultery committed by his wife and her paramour. In dismissing the Petition, the Court considered Section 497 IPC together with Section 198(2) Cr.P.C. as a “legislative packet” designed to “deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit… It does not arm the two spouses to hit each other with the weapon of criminal law.” Ultimately, the Court concluded that “even handed justice” was meted out to both parties.
Making consent of the husband material for prosecution lends greatly to an argument that the offence is merely an enforcement of his rights over the wife, contrary to the views of the Supreme Court. The Bombay High Court has on different occasions expressly approved the view that Section 497 only furthers the husband’s private rights.
In Re Shankar Tulshiram Navle, the Court held that “adultery is an infringement of the rights of the husband towards his wife, and when the offender has once been convicted or acquitted of the offence of adultery, which consisted of one sexual intercourse, he cannot with impunity commit another offence of adultery under Section 497.”
More significantly, in Yusuf Abdul Aziz v. State of Bombay, Chief Justice Chagla observed: Mr. Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that this offence is only cognizable with the consent of the husband emphasises that point of view.
It may be argued that Section 497 should not find a place in any modern Code of law. Days are past, we hope, when women were looked upon as property by their husbands. While such direct remarks are not ubiquitous, they significantly damage the assumptions which the Supreme Court proceeded to lay bare in Sowmithri Vishnu. Those assumptions of Section 497 furthering community interests of protecting are further dented if we look at how the courts placed great importance upon form over substance when faced with adultery cases. The same was upheld in Vijay Lakshmi vs. Punjab University and Ors.
REINTRODUCTION OF ADULTERY: JOSEPH SHINE VS. UNION OF INDIA
This law regarding adultery came under questioning why only men, not women, should be punishable for the offence. Questioning the validity of Section 497 of the India Penal Code (IPC), which criminalises adultery only by men, a Bench headed by CJI Dipak Misra and Justices AM Khanwilkar and DY Chandrachud issued notice to the Centre on a Public Interest Litigation (PIL).
The PIL moved by Kerala native Joseph Shine claimed that the law is discriminatory, biased towards women, and should therefore be reviewed. Supreme Court said that though the ‘act is hypothetically capable of being committed by both the man and woman’, only the man is ‘liable for criminal offence’. Though criminal law proceeds on gender neutrality, ‘this provision is an aberration to the same’. Further, if the husband of the woman gives his consent for sexual intercourse with another man, no offence lies, that is another aspect of arbitrariness. In this case, the law operates to perpetuate an unequal world for women.
The court further noted, ‘It is perceivable from the language of the provision the fulcrum of offence is destroyed once the consent of husband is obtained. Viewed from that scenario, the provision creates a dent on the independent identity of women.’ It was held that any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution and is ultra vires. Even though a provision might have been approved of decade’s back, that does not stop the judiciary to decide against it. A woman cannot be asked to think as a man or as how the society desires. Such a thought is unacceptable, for it slaughters her core identity. Most importantly, women are no longer chattels in the hands of men. Men are no longer the masters.
Thus, adultery has been decriminalized and is no longer an offence. The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 failed to meet the essence of substantive equality in its application to marriage.
In the eyes of law, there is no possibility that a woman can commit adultery, or file a case against her husband or another woman if she finds out that her husband is having sexual intercourse with another woman. The implications of this law is that that if a married woman has sexual intercourse with multiple men, all those men are liable to criminal charges being filed by the husband, except the woman herself. On the other hand, if the husband sleeps with several married or unmarried women, there exists to liability for the same and is thus arbitrary treatment. Further, the decriminalization runs the risk of fostering extra-marital affairs, the emergence of divorce as the way out will catalyze the break-up of marriages, leaving little children in the lurch.
However the question as to whether the society will accept this is skeptical. Sitting in our closed houses and porche cars, discussing about live-in relationships and marital rape, decriminalizing adultery might be a fancy step for the elite class of metropolitan cities. However, the majority of India still resides in rural areas, areas where child marriages are continued, female feticide prevalent, women veiled, girl child condemned, rapes every fortnight, murders, homicide, poor sanitation and atrocities. Sadly, majority women in India are not even aware that they have the right of prevention from sexual harassment or that to sanitation. In such a scenario, will it be reasonable to bring the women under the ambit of law? Specially, where women are raped multiple times by the Naxalities or their fellow family members or traded for a night to secure some money or employment.
The question before us is the impact on women from this class. The question is about the time we choose to invest. The question is about the historical background and jurisprudence behind the law. The question is about the recipient of law and the subjects of it.
The question is how far is the ideology of women being treated as property correct? For how long, will the historical school of jurisprudence eclipse the law makers and prevent lawyer’s extraversion. The question is how a woman can be identified as an individual and not as a mere property subjected to transfer and rights of ownership, possession and enjoyment. The question is about not empowering or uplifting women by putting men on a backseat. If an offence is committed liability is to be borne by the two individuals. The law can of course be subjected to age bars and limits to keep in check the tradition of child marriages. Only time will tell, if the reintroduction breaks homes or instills freedom in the institution of marriage. However, in the view of the author, a third person can never break a matrimonial bond in the absence of existent indifferences, dissatisfaction or visible differences. A marriage can only be interfered with or broken if it has existent cracks.