NEED FOR A CONTEMPORARY LAW OF ADULTERY IN INDIA

Puneet Jassal*

“Law must be stable, yet it cannot stand still.”

Roscoe Pound

The dictionary defines ‘adultery’ as “voluntary sexual activity (as sexual intercourse) between a married man and someone other than his wife or between a married woman and someone other than her husband”.¹Although the definition of “adultery” differs in nearly every legal system, the common theme is sexual relations outside of marriage, in one form or another. Laws against adultery are a natural outgrowth of laws and customs insisting that marriages be monogamous. Moreover it is treated as an unpardonable sin by almost all the religions.²

Under the criminal law of India, the offence of adultery has been put under Chapter XX that deals with Offences Relating to Marriage. According to Section 497³ of the Indian Penal Code, 1860, if a man, married or unmarried, has voluntary and consensual sexual intercourse with a married woman, without the connivance of her husband, he would be liable for the offence of adultery. A perusal of this section unequivocally conveys that a man alone can commit adultery and the woman (adulteress) is not liable even as an abettor. Thus, whether the woman is a victim of adultery or is herself an adulteress, she is completely free of being penalized for her misdemeanour.

Burning Issues:
(1) Whether the Indian law on adultery, drafted more than a century ago, should be retained as such in the light of changing social norms?
(2) That whether there should be an amendment made to correct the reverse gender bias contained in the country’s age-old law on adultery?
(3) That whether this bias should continue in the present modern society?

Constitutional Challenges to the Law of Adultery: The Judicial Response
Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy Laljee⁴
Main issue involved in this case was that Section 497 of the IPC is ultra vires Articles 14 and 15 of the Constitution of India. The Court held that Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights and further clear that there is no restriction in the Article 15(3) and it is not agreeable that a provision which prohibits punishment is tantamount to a license to commit the offence of which punishment has been prohibited. Articles 14 and 15 read together validate the impugned clause in Section 497 of the IPC.

Sowmithri Vishnu v. Union of India⁵
A petition was filed under Article 32 of the Constitution; main contentions were that Section 497 of the IPC is violative of Article 14 of the Constitution because, by making an irrational classification between men and women, it unjustifiably denies to women the right which is given to men. Secondly it was also contended that the absence in Section 497 of the provision mandating the court to hear the married woman with whom the accused has allegedly committed adultery violated her constitutional right to life under Article 21. The Court held that these contentions have a strong emotive appeal but they have no valid legal basis to rest upon. Moreover, the right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in Section 497 cannot render that section unconstitutional as violating Article 21. Thus the writ petition was dismissed.

V. Revathi v. Union of India⁶
In this case the constitutional validity of Section 198(1)(2) was challenged on the ground that it permits only the husband of the adulteress to prosecute the adulterer but does not permit the wife of the adulterer to do so, this provision is unconstitutional on the ground of obnoxious discrimination between the sexes. The Court held that the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. “So, there is no discrimination against the woman insofar as she is not permitted to prosecute her husband (by virtue of Section 198(1)(2). A husband is not permitted because the wife is not treated as an offender in the eye of law. In the ultimate analysis 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.”

Proposed Reforms in the Present Law of Adultery
Time and again various proposals have been mooted for reforms in the law of adultery by various sections of the legal society in view of the transformation which the society has undergone, but unfortunately the legislature has not yet realised its responsibility, and thus this archaic law is still retained as it is without any progressive changes.
The proposed changes broadly fall into two major categories: -
1. Extending the ambit of section 497 IPC so as to make the woman co-accused in case of adultery
• Fifth Law Commission, 1971
The Fifth Law Commission of India, in its 42nd Report, suggested that the sexist disparity in the law on adultery be removed by bringing women within the scope of the law. It also recommended for revision of the current punishment for the same, which is five years, as it felt that it is, “unreal and not called for in any circumstances”.
• Joint Select Committee
It suggested equal culpability of both the sexes for their promiscuous behaviour, but it was of the view that the old punishment of five years should be retained as it is.
• Fourteenth Law Commission, 1997
The Fourteenth Law Commission, in its 156th Report on the Indian Penal Code, also suggested for the reformation of the criminal law of adultery as Joint Select Committee. Moreover, it also suggested that changes must be made in the relevant sections of CrPC also.⁷
• Justice Malimath Committee Report, 2003
Justice Malimath Committee in 2003 on reforms in criminal justice system also recommended the recasting of Section 497 IPC to include women as offenders.
2. Deletion of Section 497, IPC, so as to make adultery a civil offence only
There is another school of thought according to which any crime under Section 497 is a matter of mutual consent between two mature persons. That is not a crime at all in changed social scenario. Thus, Section 497 dealing with adultery should cease to be a criminal offence as it is only a civil wrong between married couples and not a criminal offence at all. The propagators of this point of view are:
• National Commission for Women
The NCW has made a recommendation, in response to a reference made to the Commission by the Ministry of Women and Child Development, that the issue of adultery should be viewed as a breach of trust and treated as a civil wrong rather than a criminal offence but this should be done only after working out a national consensus in the matter.
• R Madhava Menon Panel of January 2007
The draft National Policy on Criminal Justice, authored by the Madhava Menon Committee, has also suggested de-criminalizing adultery by recommending that it should be treated as a social rather than a criminal offence.
Position In Other Countries
• Australia
Until 1976, the law relating to damages for adultery was contained in the Matrimonial Causes Act 1959–1966. That Act enabled either spouse⁸ to be awarded damages for adultery, but only where a decree for dissolution of the marriage on the ground of adultery had been made. On 1 January, 1976, the Family Law Act, 1975 came into operation in Australia, which bars any action for criminal conversation⁹ (adultery) henceforth.¹⁰
• United States of America
In America criminal law has played a great role in regulating adulterous conduct. Adultery was not a criminal offence at early common law. But it became one during the Progressive Era. But even today adultery laws in America vary from state to state.
• England
In England, adultery is merely a civil wrong, entitling the aggrieved person to claim damages. But with regards to matrimonial laws it is a serious offence.
• Iran
The penalty for adultery in Iran under the penal code is flogging (100 lashes of the whip) for unmarried male and female offenders¹¹. Married offenders may be punished by stoning regardless of their gender, but the method laid down for a man involves his burial up to his waist, and for a woman up to her neck¹². The law provides that if a person who is to be stoned manages to escape, he or she will be allowed to go free.
• Uganda (Africa)
Uganda’s Constitutional Court recently nullified a law by saying that it discriminated against women as it made adultery criminal for women, but not for the men.

Conclusion
The simple reading of the definition of adultery in the Indian Penal Code shows that it is most offending to the concept of equality of sexes guaranteed under the Constitution. The entire essence of the section is that the wife is the property of the husband and such property should not be trespassed upon or encroached upon by another man, without the consent of the man concerned. Moreover, if the purpose of the Section is to protect unwitting, gullible women, it is strange as to why the provision does not make sexual intercourse by a married man with an unmarried woman an offence. In such a situation, both the wife of the man and the unmarried woman are victims of male dominated patriarchal society, and a man should be punished equally for this.¹³ Due to the above stated anomalies in this ancient law of adultery Women Rights activists have time and again opposed the retention of the provision relating to adultery and agitated that it should be reduced to a civil offence only, similar to many foreign jurisdictions.
There is another school of thought, which is opposite of the above and according to which both genders should be covered under the adultery law as both are equally responsible for getting entangled into any relationship that challenges the laws and rules of society.

One thing is certain from the above discussion that there is an immediate need of a contemporary law of adultery in India. The latest proposals for reform deserve serious and immediate attention of the legislature. It is for the legislature to weigh the pros and cons of both the extreme viewpoints and come up with a law that best suits the present Indian scenario.

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*Guru Gobind Singh Indraprastha University, Delhi
1 Merriam-Webster’s Dictionary of Law ©1996.
2 Encyclopedia Dictionary of Religion (The Sisters of St. Joseph of Philadelphia, 1979).
3 497. “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.”
4 AIR 1954 SC 321.
5 AIR 1985 SC 1618.
6 AIR 1988 SC 835.
7 Law Commission of India, One Hundred Fifty-sixth Report: Indian Penal Code (Government of India, 1997), para 9.46, 9.47
8 Prior to the Act (which applied to the entire Commonwealth of Australia), a petitioning wife could not claim damages from a co-respondent except in South Australia (Matrimonial Causes Act 1929 –41 section 22) and Western Australia (Matrimonial Causes and Personal Status Code 1948 –57 section 7).
9 The word “conversation” as meaning sexual intimacy would appear to date from 1511: The Shorter Oxford English Dictionary, vol. 1, p. 418 (3rd ed. 1973). This use has not yet become obsolete, but is hardly widespread in the community today.
10 Section 120- “After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage”.
11 Law of Hodoud, Article 83.
12 ibid, Article 102.
13 ibid.