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Mainstream, VOL LVI No 42 New Delhi October 6, 2018

More Problems Ahead

Sunday 7 October 2018

by Hemant Varshney and Bhavesh Yadav

Introduction

A five-judge Constitution Bench on September 27 decriminalised the 158-year-old law of adultery in Joseph Shine v. Union of India. The impugned law was mentioned under Section 497 of the Indian Penal Code 1860. The main contention of the petitioner was that since the law treats woman as chattel, therefore, the law is in violation of equality mentioned as Fundamental Right under Part III of the Constitution.

It is beyond any shadow of doubt that the impugned provision in fact treats woman as chattel of the husband. The penal provision provides that a man cannot have sexual intercourse with a woman without the consent of the husband. On interpretation it means that a man can have sexual intercourse with a woman with the consent of the husband. This interpretation is really harsh and in violation of Article 14 and was in dire need of some serious consideration.

The judiciary in unanimous but concurring opinion, therefore, struck down the said provision. However, it is asserted that the judiciary went too far on two following points:

• The Court should have stopped after reading down the infringing parts of the penal provision.

• Instead of abolishing the law the Court should have either itself famulated or asked the Parliament to formulate a gender-neutral adultery law.

Background

Adultery as an offence is needed in a society like India where marriage is not just a contract but a sacred union of two bodies. The institution of marriage in India is hailed all over the globe. The judiciary has always considered that the prime objective of our civil and personal laws is to uphold the sanctity of the institution of marriage. Courts are always keen to reconciliate between the parties and in much less probable cases allow them to break this sacred union through divorce.

Section 497 of the IPC is used to deal with adultery which is really in violation of equality and against women. Therefore, to check the menace the Supreme Court struck down the said provision and upheld women’s right to fair treatment. However, in checking the menace the Court went too far.

The motive of any criminal law is to deter the people from doing wrongful acts. Similarly, the law of adultery sent the message that stepping out of wedlock is bad and whoever does so will be punished. This latest judgment has directly attacked this concept by stating that now it is fine if you step out of wedlock for gaining sexual pleasure.

The judgment has effectively underscored that the position of woman vis-à-vis man in contemporary India is still not on an equal footing. But the judgment has overlooked the fact that after striking down Section 497 men will be legally free to break the relationship on whims so as to further demean the position of women in society. As now women will be having no remedy to punish their husbands for such adulterous acts, they will be left unassisted by law. Therefore, the decision is counterproductive because it is this judgment that will make the woman chattel of both the law as well as the man.

Indian personal laws are based on the prime objective that all marriages shall be saved irrespective of the gravity of the dispute which has made the decree of divorce a tough task. Now women have lost the remedy through Section 497 and getting divorce is still not easy in India; therefore, the law has left women in the stormy ocean without a compass.

All our personal laws suggest that the interests of the children are of greatest significance. Now after the judgment what will become of the interests of the children if the law allows their parents not to be faithful to each other? The conditioning of a child, among other things, depends mainly on how healthy relationship their parents have. The loss caused to such children is always unimaginable and the judiciary has further accentuated this loss as children always look up to their parents.

By making adultery legal we have adopted the kind of institution of marriage the Western countries are having, at a time when Western countries are looking up to India. Legality of infidelity will only destruct this much coveted institution of marriage. Women are dependent not only economically on their husbands but emotionally too. When a man will commit infidelity, his wife has an option of getting divorce and maintenance. But what about the emotional breakdown? In a nation assailed with rising divorce rates and instances of conjugal treachery, the decriminalisation of infidelity will basically jeopardise the organisation of marriage. Not exclusively does it risk cultivating additional conjugal undertakings, the development of separation as the exit plan will catalyse extra-marital affairs, leaving children under uncertainty. The people committing adultery may be okay with what they are doing but their partners, and their children, may not be.

The judiciary, in order to protect the position of women, should have, instead of striking down Section 497, read it down to the extent that it was used to treat women as chattel of men. The Court should have deleted “without the consent of the husband” rather than completely annulling the law of adultery. Also, this would have maintained the deterrence that any penal law renders and preserved the sanctity of marriage. We agree with the fact that the penal provision in its original form was detrimental or demeaning to the dignity of the woman; however, the judiciary should have also considered the repercussions of such abolition.

Men, as always, are in the constant habit of escaping conjugal and marital ties. Such escape was earlier suppressed by laws such as Section 497 that was of great deterrence to such lustful men. Women, instead of being treated as chattel, benefited from this provision. After abolition of Section 497 these fickle-minded men will certainly, in order to satisfy their lust, have illegitimate relations outside wedlock.

Since there is a huge uproar against the present law, the judiciary should have read down the phrase “without the consent of the husband”. This would have solved the problem that the law treats women as chattel. Also the law must have been made gender-neutral by which both men and women can be made liable of the said Act. These changes would have brought more equality than what the judiciary has purported to bring.

The abolition of Section 497 will also give rise to another problem, that is, the conflict that will ensue if a child is born out of such adulterous relationship. Although by definition such a child will always be an illegitimate child, however, this will cause a great amount of misery to the legitimate family members as well as the illegitimate child due to the societal exclusion and stigma attached to it.

Conclusion

Although, the Apex Court was intending to end the misery of Indian women but as a coin has two sides the Apex Court failed to see the other side. The judgment is not in favour of women but against them. The judgment shows the declining public morality and Parliament must be cautions of it. Now, the women, who are dependent on their husbands, won’t have any remedy and they would have to tolerate the adultery of the husband. Such women cannot take the recourse of divorce since in India, a divorced woman is still treated like a taboo and in numerous instances her own blood family refuses to accept her. Moreover, for dependent women it’s not easy to survive in this modern world alone.

Parliament as well as the Apex Court should take note of the damage that has been caused as a consequence.

The authors are Fourth Year students of Dr Rammanohar Lohia National Law University, Lucknow.

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