Joseph Shine Judgment on Adultery

A law, which could have been justified at the time of its enactment with the passage of time, may become outdated and discriminatory with the evolution of society and changed circumstances. What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic. The overview of the news around section 497 is encapsulated below.

Law on Adultery and discrimination

  1. Adultery—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 law of adultery as governed under Section 497 of the Indian Penal Code is a pre-constitutional law, which was enacted in the year 1860. There would be no presumption of constitutionality in a pre-constitutional law like Section 497 framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution. The provision of Section 497 is replete with anomalies and incongruities, such as:

(i). Gender discrimination: Under Section 497, it is only the male-paramour (illicit partner of a married person) who is punishable for the offence of adultery. The woman who is pari-delicto (Latin word meaning in equal fault) with the adulterous male is not punishable, even as an abettor.

(ii) Being Adulterous Women was not punishable as an Offence: The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery.

(iii) Adulterous male can be prosecuted only by husband of the adulterous wife: The Section read with Section 198(2) of the CrPC only gives the right to prosecute is vested with the husband of the adulterous wife- against the male paramour. On the other hand, the wife of the adulterous man has no similar right to prosecute her husband or his paramour.

(iv) Narrow definition of adultery: The act of a married man engaging in sexual intercourse with an unmarried or divorced woman does not constitute adultery under Section 497.

(v) Exception in provision was vague: If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery.

The rationale for abolition of adultery as an Offence

Any legislation, which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and of the Constitution, which form the pillars against the vice of arbitrariness and discrimination. Article 14 forbids class legislation; however, it does not forbid reasonable classification.

A reasonable classification is permissible if two conditions are satisfied:

(i). The classification is made on the basis of an “intelligible differentia‟ which distinguishes persons or things that are grouped together, and separates them from the rest of the group; and

(ii). The said intelligible differentia must have a rational nexus with the object sought to be achieved by the legal provision.

With respect to the offence of adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved.

Section 497 of the I.P.C., makes two classifications:

(i). The first classification is based on who has the right to prosecute: It is only the married woman, who indulges in adultery, her husband is considered to be an aggrieved person and has been given the right to prosecute for the offence of adultery. Conversely, a married woman, who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour.

(ii) The second classification is based on who can be prosecuted. It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an “abettor” to the offence.

The aforesaid classifications were based on the historical context in 1860 when the Indian Penal Code was enacted. At that point of time, women had no rights independent of their husbands, and were treated as a chattel or property of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a theft of his property, for which he could proceed to prosecute the offender. The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone. A law, which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14, which irradiates anything, which is unreasonable, discriminatory, and arbitrary.

A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality. Section 497 of the I.P.C. was framed in the historical context that the infidelity of the wife should not be punished because of the plight of women in this country during the 1860‟s. Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals. This situation is not true 155 years after the provision was framed. With the passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change. The historical background, in which Section 497 was framed, is no longer relevant in contemporary society. It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a victim, and the male offender is the seducer.

Section 497 fails to consider both men and women as equally autonomous individuals in society.  The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.

There is therefore, no justification for continuance of Section 497 of the I.P.C. as framed in 1860, to remain on the statute book. Article 15(3) of the Constitution is an enabling provision, which permits the State to frame beneficial legislation in favour of women and children, to protect and uplift this class of citizens. Section 497 is a penal provision for the offence of adultery, an act that is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation, which takes away, the rights of women to prosecute cannot be termed as a beneficial legislation.

The Petitioners have contended that the right to privacy under Article 21 would include the right of two adults to enter into a sexual relationship outside marriage. The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21. In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid.

The issue remains as to whether adultery must be treated as a penal offence subject to criminal sanctions, or marital wrong, which is a valid ground for divorce. One view is that family being the fundamental unit in society, if the same is disrupted, it would impact stability and progress. The State, therefore, has a legitimate public interest in preserving the institution of marriage. Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victim-less crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences.

Throughout history, the State has long retained an area of regulation in the institution of marriage. The State has regulated various aspects of the institution of marriage, by determining the age when an adult can enter into marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas, which concern society and public well-being as a whole. Adultery has the effect of not only jeopardizing the marriage between the two consenting adults, but also affects the growth and moral fibre of children. Hence the State has a legitimate public interest in making it a criminal offence. The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim. To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrong doing. The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the “best interest‟ of the individual.

Andrew Ashworth and Jeremy Horder in their commentary titled “Principles of Criminal Law” have stated that the traditional starting point of criminalization is the “harm principle” the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be proved before the State can classify a wrongful

act as a criminal offence. John Stuart Mill states that ―the only purpose for which power can be rightly exercised over the member of a civilized community against his will is to prevent harm to others. The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong. That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.

In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole. Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law? The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment. The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices. The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V. Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.

The apex court has referred to the theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife.

In either situation, the whole scenario is extremely private. It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences. We are absolutely conscious that the Parliament has the law making power. We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. Let it be clearly stated, by no stretch of imagination, one can say, that Section 498-A or any other provision, as mentioned hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide. The said activities deserve to be punished and the law has rightly provided so.

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