Understanding Section 497 of IPC: Is it Gender-neutral?

by Shiladitya Chakraborty

The concept of adultery is as old as the institution of marriage. Adultery as a form of social deviance has been universally condemned since time immemorial. It has been condemned by all major religions of the world, though with varying degrees of severity. In the West, it is found in the Code of Hammurabi, the Holy Bible or the Holy Quran. As far as India is concerned, one finds detailed sanctions against adultery in religious texts of ancient India like the Manusmriti and also in Kautilya’s Arthasastra. For instance, Kautilya prescribed mutilation for the wife and death penalty for her lover in case of adultery in Arthasastra.1

The Indian Penal Code, prepared by the First Law Commission under the chairmanship of Thomas Babington Macaulay in 1835, came into operation in on January 1, 1862. This was the first law in modern India to provide a legal definition of the term adultery. Section 497 reads: “Whoever has sexual intercourse with a person who is and whom he knows or has reasons to believe to be the wife of another 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 5 years, or with a fine, or with both. In such cases the wife shall not be punishable as an abettor.”2 Unfortunately, Section 497 of the Indian Penal Code has a very narrow and convoluted definition of adultery. This section is based on Victorian values and looks at adultery from only one angle.

The Indian law on adultery has been challenged several times in the past. The Apex Court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitu-tionality of Section 497. The constitutionality of Section 497 of the Indian Penal Code (IPC) was previously challenged before the Supreme Court in Yusuf Abdul Aziz v. The State of Bombay (1954). A Constitutional Bench held then that Section 497 did not violate the right to equality as enshrined in Articles 14 and 15 of the Constitution. Sex is a sound classification and although there can be no discrimination on such account, the Constitution itself provides for special provisions with regard to women and children. Thus, Articles 14 and Article 15 read together validate Section 497 of the IPC.3

The Supreme Court again upheld the constitutional validity of the law in Sowmithri Vishnu v. Union of India (1985), where it was held: “The argument of the petitioner really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Where such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. Such arguments go to the policy of the law, not to its constitutionality, unless while implementing the policy, any provision of the Constitution is infringed. Therefore, it cannot be accepted that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. However, it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ‘transformation’ which the society has undergone.”4

Again in the V. Revathi vs Union of India and Ors case of 1988, the petitioner questioned the constitutional validity of Section 198 of the CrPC as it acts as a fetter on the wife in prosecuting her adulterer husband. Dismissing the petition, this Court held: “Section 198 of the CrPC is not vulnerable to the charge of hostile discrimination against a woman. While the outsider who violates the sanctity of the matrimonial home is punished, a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Therefore there is no discrimination against the woman in-so-far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. The law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.”5

The Victorian provision of adultery was again brought under judicial scrutiny when the Supreme Court in December 2017 admitted a petition that challenged the various sections of the Code of Criminal Procedure (CrPC) and Indian Penal Code (IPC) pertaining to the issue of adultery. The Indian law on adultery has been challenged on grounds of having an inherent gender-bias and being highly discriminatory in nature. It is argued by legal experts and critics that such a law commodifies women and treats the wife as the personal property of the husband. Even a simple reading of Section 497 would make it amply clear that it suffers from several flaws. First, it defines adultery as the act of having sexual relations between a man and a married women blanking out other forms of adultery where a married man has sexual relations with an unmarried woman. Secondly, and more importantly, it chooses to validate the act if done with the consent or connivance of the husband. In this regard the Supreme Court has made a very pertinent observation while admitting the petition recently. The Supreme Court observed: “How can a law patronise women by saying women are victims in case of adultery ...... By saying that the offence is not committed if the woman’s husband gives his consent, isn’t the law reducing the women into a commodity?” The Supreme Court further added that “the provision (Section 497) really creates a dent in the individual independent identity of women when the emphasis is laid on the connivance or consent of the husband. This is tantamount to subordination of a woman where the Constitution confers (women) equal status.” Lastly, this section clearly mentions that “the wife shall not be punishable as an abettor”. This is highly discriminatory as it seeks to provide legal immunity to a person who is an equal partner in an act that is considered a crime.6 Critics thus allege that the law (based on Section 497) is sexist in nature, for it only criminalises the conduct of the man while excusing the woman.

Moreover, procedurally this act is also flawed. When it comes to lodging a case against adultery, Section 198 of the CrPC mandates that only the husband can lodge a police complaint when a crime is committed under Section 497 of the IPC. Sub-Section 2 of Section 198 of the CrPC says that ”no person other than the husband of the women shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code”. This implies that if the husband is in a sexual relationship with a woman, the wife has no remedy and cannot proceed against him for adultery. Only the husband of his paramour can do so if the paramour is married. This situation becomes far more alarming when the husband is in an illicit relationship with an unmarried woman. Critics argue that in making the husband the only person who can prosecute for adultery, the law is founded upon the idea that the status of the wife in a marriage is akin to that of the property of the husband.

The legislative intent behind the enactment of Section 497 is quite different from what is perceived by these critics. In 1847, the Law Commission of India was given the responsi-bility of drafting a new penal code. The Commission rendered liable only the male offender, keeping in mind “the condition of the women in this country” and the law’s duty to protect it.7 However, there is no denying that there exist ambiguities within Section 497 of the IPC which needs to be resolved eventually by way of an amendment to be in sync with the fast changing social reality.

There are two to three legal questions on which the Supreme Court needs to give its judgment. The first issue is whether adultery is a criminal offence. Adultery can be a socially or morally unacceptable practice but criminalising it is not an option since society has evolved since the Victorian times and so has our social mores. Worldwide, adultery has been decriminalised in a majority of the countries and it is high time that the Courts in India decriminalise it. Many judicial activists and social workers like TalishRay are of the opinion that”No marriage or alliance can take away one’s right over one’s own body. Therefore, while the law on adultery as it is today in the IPC is discriminatory on the ground of sex, the very existence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity. These issues will therefore remain unaddressed even if the court reads down Section 497 and gives women also the right to send their husbands to court. This Section will have to be struck down to do justice to the very notion of human life and dignity.”8

Furthermore, criminalisation as a rule doesn’t work in practice in altering social behaviour. There is no evidence in the USA that a decline in legal sanctions has resulted in an increase in adultery. For instance, there is no evidence to suggest that repealing prohibitions on marital infidelity in Connecticut (in 1991) or in New Hampshire (in 2014) in the USA has increased cases of adultery. In fact while legal sanctions for adultery have declined in the USA, social disapproval has increased. In a 2013 survey, over 80 per cent of Americans said that adultery is “always wrong” compared to 70 per cent in 1979.9

As a matter fact in 2012, a United Nations Working Group on Laws that discriminate against women wanted countries that treat adultery as a crime, to repeal such laws. It is one thing for adultery to be a ground for divorce, a civil proceeding, and quite another for it to be a basis for incarceration. It will be a travesty if in the name of empowering women the ambit of the criminal law is extended to cover both genders. The correct course will be to dispense with this archaic provision altogether; it serves no real purpose in the criminal statute.10

If however the Supreme Court takes a conservative stand on the issue then it should at least get rid of the gender-bias inherent in Sections 497 and 498 of the IPC. Section 497 should be amended and reworded as: “if any married person has sexual intercourse with any other person other than his or her spouse, 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.” Moreover Section 198 of CrPc should be made gender-neutral and the word ‘husband’ should be replaced with the word ‘spouse’. This correction would not only make it gender-neutral but would enable the aggrieved wife to lodge a complaint against her husband’s infidelity.11

In conclusion, it is pertinent to point out the observations made by Deborah L. Rhode, Professor of Law at Stanford University, who observed: “The steady recurrence of infidelity suggests the ineffectiveness of trying to use legal sanctions and workplace penalties to prevent infidelity. Legislatures should repeal criminal prohibitions and alienation of affection statutes, and where legislatures decline to act; courts should strike down adultery penalties as an infringement of constitutionally protected rights of privacy. There are better ways to signal respect for marriage and better uses of resources than policing private consensual sexual activity.”12

References

1. Rangarajan, L.N., Kautilya: The Arthashastra, New Delhi, Penguin Books, 1987, p373.

2. Indian Kanoon, <https://indiankanoon.org/doc/1833006/>

3. Supreme Court of India, Yusuf Abdul Aziz vs The State Of Bombay, March 10, 1954, <https://indiankanoon.org/doc/1343950/>

4. Supreme Court of India, Smt. Sowmithri Vishnu vs Union Of India and Anr, May 27, 1985 < https://indiankanoon.org/doc/449750/>

5. Supreme Court of India, V. Revathi vs Union of India and Ors, February 25, 1988. < https://indiankanoon.org/doc/921415/>

6. ‘A one-sided law’, The Statesman, Kolkata, February 1, 2018, p. 16.

7. Sudhir Mishra, Talish Ray and Anand Grover, ‘Yes, No, It’s Complicated : Should adultery be a crime?’ The Hindu, December 22, 2017. <http://www.thehindu.com/opinion/op-...>

8. Ibid.

9. Deborah L. Rhode, ‘Why is adultery still a crime?’ Los Angeles Times, May 2, 2016. < http://www.latimes.com/opinion/op-ed/la-oe-rhode-decriminalize-adultery-20160429-story.html>

10. ‘The outsider: On adultery law’, The Hindu, December 14, 2017. < http://www.thehindu.com/opinion/editorial/the-outsider/article21615771.ece>

11. ‘A one-sided law’, The Statesman, Kolkata, February 1, 2018, p 16.

12. Deborah L. Rhode, ‘Why is adultery still a crime?’ Los Angeles Times, May 2, 2016. <http://www.latimes.com/opinion/op-e...>

Dr Shiladitya Chakraborty is an Assistant Professor, Department of Political Science, University of Kalyani, Nadia, West Bengal.