Adultery under Criminal Law and Feminist Jurisprudence

Adultery under Criminal Law and Feminist Jurisprudence

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 INTRODUCTION

Adultery is defined as voluntary sexual intercourse between a married person and some other than his or her lawful spouse. Until 2018 Adultery was a crime in India under section 497 of Indian Penal Code which has been struck down by the Supreme Court in the Case of Joseph Shine v/s Union of India.[1] 

Section 497 prescribes a punishment of imprisonment up to five years and fine. The offence of adultery under Section 497 is extraordinarily restrained in scope compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who had sexual activity with the spouse of another man without the latter’s consent or connivance. The wife isn’t punishable for being an adulteress, or even as an abettor of the offence. Section 198 CrPC deals with a “person aggrieved ”. -section (2) treats the husband of the woman as deemed to be aggrieved with the aid of an offence committed under Section 497 IPC and in the absence of the husband, some individual who had the care of the woman on his behalf at the time whilst such offence was committed, with the permission of the court. It does not consider the mate of the adulterer as an aggrieved person.[2]

 DEVELOPMENT OF LAW OF ADULTERY IN INDIA 

Adulterers have consistently experienced society’s disliking mentality towards them, the nature of which fluctuates broadly relying upon local culture, religion and values.  Historically, adultery was rigorously condemned and punished, normally just as an infringement of the husband’s rights.  Among such people, the wife was considered as the property of her mate, and adultery was, therefore, adultery was thusly related to robbery, burglary of a disturbing kind.[3]

Historically in India, ‘adultery’ had been considered as an enemy of the society and precluded by law. However, the idea and comprehension about adultery in the ancient period and present-day is a little bit different, and punishment also differs. The old code of Manu only accommodated a fluctuating scope of punishments for the offence of adultery ranging from basic atonement to the ghastly burning of the offender. In India, the provision of ‘adultery’ under the penal statutes has gained contention from its origin. The primary architect of the Indian Penal Code, Lord Macaulay, was against the inclusion of such a section in the original draft and wanted to keep it out of the domain of penal statutes. According to him, such inclusion will be pointless and ridiculous and shall be left to the general people to take care of. Therefore the first proposed original draft of Indian Penal Code did not have any such provision. But it was included later on. At that point of time, women had no rights independent of their spouses and were treated as assets or “property” of their husbands. Subsequently, the offence of adultery was treated as an injury to the husband, since it was viewed as a “theft” of his property, for which he could proceed to indict the wrongdoer. The enacted first penal legislation in India contained the offence of adultery which was put under Chapter XX that deals with the Offences Relating to Marriage. It contained four sections 494-498. In this way the section as it remained in the penal statutes prescribed that if a man married or unmarried has deliberate and consensual sex with a married woman, without the connivance of her husband, he would be criminally held liable for the offence of adultery.[4]

The object of making ‘adultery’ as an offence and limiting it to ‘Man’ alone was to stop ‘Man’ from taking advantage of a woman starved of the love and affection of her husband and hinder Man from having sexual relations with the spouse of another man. Since men had the social sanction to keep up such relations and women were famished of the adoration and fondness of their husbands, women were treated as the victims and not the perpetrator of the crime. When Section 497 was enacted there have been no codified personal and matrimonial laws like today but they were unequal and inoperative.[5]

 ADULTERY LAW WAS DISCRIMINATORY

The Indian law on adultery was an unapologetic enunciation of man controlled society. A man who enters into a sexual relationship with a married woman without the knowledge or connivance of her husband is blameworthy of adultery and can be punished with a jail term of as long as five years. In the event a wedded man takes part in extramarital entanglements with an unmarried woman, no adultery subsists. Adultery is, in Indian law, infringement of one man’s conjugal home by another, in which women are seen as passive objects entirely without organization. Section 497 explicitly states that the woman in an adulterous relationship will not be considered as an abettor. This does women no favour. Modern India cannot bear to have such sexual orientation in its laws. Removing such bias would mean two things. Adultery must be understood as an infringement of the pledge to sexual exclusivity that marriage involves, not as an infringement of a man’s conjugal home. Further, women should qualify as culpable agents, not latent objects of male will, in the offence of adultery. Marriage should continue on the quality of mutual trust, respect, and, love, not out of dread of a prison term.[6]                    

JUDICIAL PRONOUNCEMENTS ON LAW OF ADULTERY IN INDIA

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.”

Section 497 used to peruse with CrPC Section 198(2) in the issues of prosecution for offences against marriage. The combined perusing of the adultery laws allowed the bothered spouse of the married woman in an adulterous relationship to file a complaint. Be that as it may, the same right was not accessible to an aggrieved wife if her husband was found to be in an adulterous relationship.[7]

There have been many times when the constitutional validity of Section 497 has been challenged in front of the Supreme Court of India.

Yusuf Abdul Aziz vs. The State of Bombay[8] (First Supreme Court Judgment)

The constitutional validity of Adultery was the first time challenged in this case on the ground of equality. The applicant contended that Section 497 is a biased arrangement under Article 14 of the Constitution as it doesn’t make women equally liable in an adulterous relationship. The applicant further placated that it gives license to the women to carry out the crime.

The Supreme Court held that Section 497 is definitely not a biased provision like Article 15(3) of the Constitution grants to authorize extraordinary laws for women and it does not give license to women to commit adultery. In addition, the apex court stated that it’s the man who is the seducer and not the woman, and woman can only be a victim of Section 497 and not the culprit.

Sowmithri Vishnu versus Union of India[9] ( Second Supreme Court Judgment)

In this case, the Supreme Court not just reiterated the ratio held in Yusuf Aziz case that women can’t be made liable for adultery, yet in addition went further and dismissed the contention that unmarried women ought to be brought under the domain of the adultery law. The apex court held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. 

V Revathy v Union of India[10] (Third Supreme Court Judgment)

The court held that Section 497 of the Indian Penal Code is intended to the point that a husband can’t prosecute the wife for defiling the holiness of the matrimonial tie by committing adultery. Therefore the law grants neither the husband of the culpable wife to prosecute his better half nor does the law permit the wife to indict the culpable husband for being unfaithful to her. In this way, both the husband and the wife are crippled from striking each other with the weapon of criminal law.

Joseph Shine v Union of India [11](Fourth Supreme Court Judgment)

Joseph Shine, the hotelier challenged the constitutionality of section 497 of the Indian Penal Code. The main purpose of this appeal was to shield Indian men from being punished for extramarital relationships by vindictive women or their husbands. In this case Section 497 was held arbitrary and was discovered ultra vires of the constitution as it is mentioned below.

·         Section 497 is violative of Article 14: Section 497 treats men and women unequally as women can’t be made liable for adultery and even women can’t indict their husbands for such an offence. Moreover, if the husband of the woman who has committed adultery has given assent or connivance then no offence can’t be established.

·         Women treated as the property of man: The judgment focuses on the fact that women should not be considered as the property of their husband or father any longer. They have equivalent status in society and should be given each chance to put their stance forward.

·         Section 497 disregards Article 21: Section 497 disposes women from autonomy, dignity, and privacy. It is considered as the infringement to her right to life and individual freedom, by accepting the notion of marriage which topples true equality. Sexual autonomy falls within the purview of personal liberty under article 21 of the Constitution of India. It is a lot of significance in a relationship with the expectations that one has from another. When both the partners regard each other with equality and poise then only respect for sexual autonomy is established. 

·         International perspective: International trends overall demonstrate that very few countries have continued to treat adultery as a crime, however, most countries retain adultery for the purposes of divorce laws.

·         Based on sexual stereotypes: Section 497 is based upon sexual stereotypes that view women as being submissive and without sexual agency. The notion that women are ‘survivors’ of adultery and accordingly require the advantageous exemption has been profoundly criticized by feminist scholars, who contended that such an understanding of the situation of women is demeaning and neglects to recognize them as equally autonomous individuals in society.

·         Adultery no longer a criminal offence: A crime is committed against the society as a whole while adultery is an individual issue. Adultery doesn’t fit into the ambit of crime as it would somehow attack the extreme privacy sphere of marriage. Nonetheless, adultery can be considered as a civil wrong and is a substantial ground for divorce.

ANALYSIS

The old law on adultery was anti-women as women were presumed property of man and it took almost 160 years to the court to understand that women are not chattel and have equal status to that of men. After having the provisions of equality in article 14, the court continued to interpret the law biasedly. Even the old law on adultery was a violation of equality on the part of husband as they can’t file a case against their wife who is indulged in adultery and the court always considered man as the seducer. But the apex court has now disregarded the old law on adultery and it’s no longer a criminal wrong. I am not criticizing the Joseph Shine judgment but I consider the Supreme Court have an option rather than decriminalizing it and that was to accept the recommendations of 42nd law commission and with the Justice Malimath committee which recommended equality of treatment in the law of adultery and women can be introduced for the offence and the law should be made sterner. This would have without a doubt remove the prima facie discretionary treatment meted out to men and women. Enforcing the proposals would bring about equality of manner and at last, a similar punishment shall be given for a similar act.

CONCLUSION

The object of making adultery an offence and restricting it to men alone was to prevent men from taking advantage of women kept from the adoration and fondness of their husbands and discourage men from having sexual relations with the wives of other men. Since men had the social authorization to keep up such relations and women were famished of the adoration and love of their husbands and were treated as the victims and not the perpetrator of the crime. At the time when Section 497 was enacted there were no codified personal and marital laws like today however they were inconsistent and inoperative.

Throughout the years polygamy has become unlawful while monogamy has become pervasive. Today the personal laws are equal, operative, successful, and proficient. The definition of adultery in marital laws is much wider in scope than the definition of adultery as a crime. To practice polygamy or have extramarital relationships without attracting civil action is practically not possible. Women have started to establish their own identity in society and are not anymore treated as their husbands’ assets. There are no reasons to retain adultery as an offence in the Indian penal code. Our personal laws are enough adequate to take care of adultery as a civil wrong.[12]


REFERENCES

 [1]  2018 SCC 1676.

[2]Devika, Nabam, T., Swami, R., Das, B., Sebastian, V., Mohit, & A.k, D. (2019, May 08). Adultery [S. 497 IPC and S. 198(2) CrPC]. Retrieved July 01, 2020, from https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-1982-crpc/

[3] Kanchan, Tanuj & Nagesh, Kr. (2008). Adultery and Indian law. Retrieved on 30th June 2020.

[4] Sharma, D., & Sharma, N. (2015). Critical Analysis of Law of Adultery in India [Abstract]. Jai Maa Saraswati Gyandayini, 1(II).

[5] Durga Das Basu, Commentary on the Constitution of India at 1796 (Wadhwa 8th ed 2007); See also, Srinivasan v. Padmasini, AIR 1957 Mad 622.

[6] India’s adultery law is crudely anti-woman. (2018, August 03). Retrieved July 01, 2020, from https://economictimes.indiatimes.com/blogs/et-editorials/indias-adultery-law-is-crudely-anti-woman/

[7] Dutta, P. (2018, September 27). Section 497: 3 past Supreme Court judgments on adultery law. Retrieved July 01, 2020, from https://www.indiatoday.in/india/story/adultery-law-section-497-3-past-supreme-court-judgments-1349993-2018-09-27.

[8] 1954 AIR 321.

[9] 1985 AIR 1618.

[10] 1988 AIR 835.

[11] 2018 SCC 1676.

[12] India, L. (n.d.). Adultery – Section 497 IPC. Retrieved July 01, 2020, from http://www.legalserviceindia.com/article/l291-Adultery.html.


Rohan - Lawcirca Author

Rohan Gupta

Author

Rohan hails from Indraprastha University and he spends most of his time in reading and binging. His Interest area lies Feminist jurisprudence & Family laws. For any clarifications, feedback, and advice, you can reach him at guptarohan726@gmail.com

16 Replies to “Adultery under Criminal Law and Feminist Jurisprudence”

  1. It is a very well written article.
    Looking forward to reading more thought provoking articles like this one.
    Well done.

  2. Must say this one is pretty gripping and worthwhile
    And so eloquently expounded!
    Awaiting your new article 😊
    MUST-READ!!

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