In Indian society, marriage is considered as very important social institutions and the State should punish those who violate the sanctity of marriage. The chapter XX in Indian Penal Code, 1860 deals with the offences relating to marriage. This chapter is basically divided into four parts i.e., mock marriages, bigamy, adultery and criminal elopement.
There is growing opinion amongst a section of people that marriage and the relation of spouses within the marriage are in the realm of personal lives and the state should not interfere in this regard. However, in our country, a wide variety of deceitful practices were found to exist, affecting marriage and marital relations, which necessitated turning them into penal offences. Given the nature of gender discrimination prevalent in the Indian society, most often it is women who are victims of offences relating to marriage. There is thus, a contrary view that while the offence needs to be redefined to reflect should be repealed. The merits of either viewpoint notwithstanding, it is relevant to note that though the offences defined are materially different from the English Law, it is England, these offences now stand removed from the statute books, but they prevail in India. A thorough public debate is called to re-examine and re-define the nature of offences relating to marriage.
OFFENCES RELATING TO MARRIAGE
1. Mock or invalid marriage (sections 493 and 496)
2. Bigamy (sections 494 and 495)
3. Adultery (section 497)
4. Criminal elopement –seduction(section 498)
5. Cruelty by husband or relatives of a husband (section 498-A)
In this article, the main concern is Section 497 i.e., Adultery.
Section 497: 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.
Adultery is a voluntary consensual relationship between a married individual and someone who is not his/her lawful spouse. Adultery is considered legally wrong and is a punishable offence. The act of adultery is a crime which breaches the marriage vows and is detrimental to public morals. It is regarded as illegal in some countries and certain laws have been passed to keep a check over adultery. Although adultery is not a criminal offence, it may have legal consequences and the individual concerned may be penalized and punished especially if the case is pertaining to divorce.
According to ancient Hindu laws, only the felonious female was punished and killed while the husbands were considered equal to God and were left off with warnings only.1
In ancient Greece and Roman world, there were harsh laws against adultery but these were applicable only if the female was married. But these laws were not relevant if a man maintained a sexual relationship with a slave or an unmarried female. The Bible too forbids adultery and the seventh commandment clearly states this. In customary Judaism, both the parties were equally responsible for adultery but it applied only if the female partner was married. Lord Jesus also abhorred adultery and considered that even looking at a female lustfully is equivalent to adultery. 2
Before the IPC was enacted adultery was not an offence in India either for men or women. It was also not included in the first draft of the Penal Code. However, the Second Law Commission added to it. The Law Commissioners noted that the then prevalent social infrastructure and the secondary and economically dependent position of women were not conducive to punish adulterous men. Further, the authors noted, that a wife was socially was an everyday affair. She neither felt humiliated nor was it a culture shock for her. The Law Commissioners incorporated adultery an offence in the Penal Code punishing only the adulterous men, leaving women, who, in their opinion, were already living humiliated and oppressive conditions within the family.
ESSENTIALS OF THE OFFENCE
1. Sexual intercourse
2. Women must be married
4. Consent or connivance of husband
5. Should not constitute rape
A man having sexual intercourse with a married woman is an essential feature of the offence. So where the wife went over to the shop of the accused to have sexual intercourse but was at once followed and entrapped, it was held that her actions did not go beyond the stage of preparation and hence this section was not attracted. 3 Similarly, when an accused was provided with a married woman to pass the night with, and before the accused could have sexual intercourse with the woman, the husband intervened and took her away, the accused was held not guilty under this section. 4 Though proof of sexual intercourse is essential for the offence of adultery, it can rarely be proved by direct evidence. A story of seeing adultery through a keyhole is only an imaginary one and it cannot be accepted.5 It has to be inferred from the facts and circumstances of a case.6 However, the circumstances must be of such nature that they fairly infer that sexual intercourse took place. Evidence of opportunities sought for and obtained and of undue familiarities, which point strongly to an inference of guilt, is sufficient to establish the fact of sexual intercourse. The entire background and context of the case need to be taken into consideration for ascertaining sexual intercourse. Where the parties concerned are sophisticated, no conclusion can be drawn on the mere basis of opportunities for sexual intercourse. A conclusion of adultery should not be reached by rash and intemperate judgments and upon assumptions equally capable of two interpretations. 7
Women must be married
This section indicts sexual intercourse by a man, who is the wife of another man; the factum of lawful marriage must be strictly proved. Sexual intercourse with a prostitute, an unmarried woman, or a widow, therefore, does not amount to adultery under the IPC. Even sexual intercourse with a woman who lived with another man without marriage and has got children from him does not amount to adultery, as she is not ‘wife of another’. 8
The offender must know or must have reasons to believe that the woman is a wife of another person. The offence under section 497 is not made out unless it is proved by the prosecution that the accused had cohabited with the woman knowing her to be the wife of another man. Or that he had reasons to believe that the woman is another’s wife.
Consent or connivance of husband
Connivance is the knowledge that a wrong being has done, and yet one assist it or takes no steps to prevent it. In other words, it is the willing consent to a conjugal offence or a culpable acquiescence in a course of conducts reasonably dullness of appreciation or indifference will not suffice. The maxim volenti non fit injuria- a willing mind is its source.
In adultery, as held by the Bombay High Court, 9 the wife is not punishable as an abettor but the man who commits this offence is punishable. However, with the advance of civilization, it would be appropriate if the wife is also punished for adultery. This is because she is no longer a victim but the author of the crime. In this regard, one must note that section 497, Ranbir Penal Code 1932of J&K State penalizes the errant wife with the paramour. In Pakistan, Saudi Arabia, Iran, Egypt, etc. are the countries where both man and woman are punished for the offence of adultery.In this offence, the consent of the woman is of no relevance. The provisions of this section do not contravene any fundamental rights. 10 The classification between man and woman made by law is not bad.
In case of adultery, the husband is the proper complainant as adultery is an offence against the husband. In absence of the husband or in case the husband is minor, the caretaker or guardian of the woman can with court’s permission file the complaint about the adultery.
Should not constitute rape
The offence of adultery by its very nature connotes that it is sexual intercourse between two consenting adults. The woman, although married, must be a willing partner to the sexual intercourse. However, if the accused has sexual intercourse without the consent of the woman, then it is a much graver offence and would amount to rape. Here, the consent or connivance of the husband is immaterial. Consent of the woman is primary. If her consent is absent, then it will amount to an act of rape, punishable under section 376 of the IPC.
IT ASKED WHY A MARRIED WOMAN, WHO IS EQUALLY LIABLE FOR COMMITTING ADULTERY WITH ANOTHER MARRIED MAN, IS NOT PUNISHED ALONG WITH THE MAN.
The Apex Court observing that the section relieves the woman of any liability, the bench said, “Though the act is hypothetically capable of being committed by both the man and the woman, only one is liable for a criminal offence.”
The court also said that the provision goes against gender neutrality and treats women like personal property. “It is perceivable from the language of the provision, that the fulcrum of offence is destroyed once the consent of husband is obtained,” the court said. “Viewed from that scenario, the provision creates a dent on the independent identity of women.”
In 1951, Yusuf Aziz challenged the constitutionality of this provision, but the Bombay High Court upheld the section. In 1971, the Fifth Law Commission made some suggestions about changes in the provision, including making the law gender-neutral and reducing the prison term from five to two years. Those recommendations were also not considered.
In 2006, the National Commission for Women rightly recommended that adultery is decriminalized. At a time when many jurisdictions around the globe have decriminalized adultery, we in India are still considering whether or not to decriminalize it. The existing gender discriminatory penal law of adultery deserves a serious relook and revision, if not declared completely unconstitutional. 11
The apex court bench of Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud on Friday admitted and issued notice on a writ petition challenging the validity of section 497 of the IPC, in so far as the impugned section extends immunity to women from prosecution for the offence of adultery, even as an abettor, under the garb of Article 15(3) of the Constitution.
The bench observed, “Prima facie, we find section 497 gives relief to the woman, though the offence of adultery is committed by both the man and the woman. Only one party is held liable for the criminal offence. It remains to be seen if the conferment of affirmative rights on the woman can go to the extent of treating her as a victim to the peril of the husband.
The bench also addressed the issue in so far as section 497 of the IPC treats the procurement of the consent of the husband as a negation of the commission of the offence of adultery. “The wife cannot be treated as a commodity by leaving her at the discretion of her husband to give consent to the act”, opined Justice Chandrachud. 12
“Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent in the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to the subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why we are inclined to issue the notice.”13
Women’s rights activists have also time and again opposed the retention of the provisions relating to adultery. The provision, though are purportedly enacted for protecting women and make only the man in most circumstances liable, in fact only help reiterate the social belief that women are weak, have no mind of their own and hence, must be protected by men. The definition of adultery is in fact most offending to the concept of equality of sexes guaranteed under the constitution. If a man has sexual intercourse with a married woman, without the consent or connivance of her husband, then he commits adultery.
In the case of Yusuf Aziz, 14 the apex court ruled that the said provision does not violate the gender equality clauses of the Constitution. And if it offends the equality of the Constitution, it is a question of policy of law and there is nothing to do with the constitutionality of section 497.
1. Adultery Divorce, Advocate Khoj, http://www.advocatekhoj.com/library/lawareas/divadultery/4.php?Title=Adultery Divorce&STitle=Adultery laws in India (last visited May 14, 2018).
3. Hari Singh Gour, Penal Law of India, eleventh ed. Vol. 4, Law Publisher, Allahabad, 1998, p 4656.
4. AIR Manual, fourth ed. vol 28, 901.
5. Ramchandra v. Baburaj, (2009) 4 KLT 744 (Ker).
6. Kashuri v. Ramaswmay, (1979) CrLJ 741 (Mad).
7. AS Puri v. KC Ahuja, AIR 1970 Del. 214.
8. Brij Lal Bishnoi v. State, (1996) CrLJ 4286 (Del).
9. Yusuf Abdul Aziz v. State of Bombay, 1951 SCC Online Bom 59.
10. Anil Kumar Mahsi v. Union of India, (1994) 5 SCC 704.
11. Vidya Raja, APEX COURT TO RE-EXAMINE ADULTERY LAWS; WHAT DOES THIS MEAN FOR INDIAN WOMEN? THE BETTER INDIA(2017), https://www.thebetterindia.com/124058/adultery-laws-india/ (last visited May 14, 2018).
12. Read more at http://www.livelaw.in/statutory-immunity-women-prosecution-adultery-sc-admits-writ-petition-challenging-vires-section-497ipc/
13. Joseph Shine v. Union of India, Dated 08.12.2017 page 4-5.
14. Supra note ix.
15. Image Source: https://www.news18.com/news/india/will-impact-sanctity-of-marriage-centre-opposes-dropping-adultery-as-an-offence-in-supreme-court-1808331.html