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Above: Illustration by Anthony Lawrence

Section 497 of the Indian Penal Code, which seeks to punish only the man for adultery, comes under review by the apex court for its defiance of gender equality

~By Venkatasubramanian

A discriminatory provision has survived in the Indian Penal Code (IPC) for over 150 years in the garb of promoting a beneficial objective. Just why Thomas Macaulay, the author of  the IPC which was enacted in 1860, found it necessary to exempt a married woman from the offence of adultery while making the man having sex with her without her husband’s consent criminally liable for adultery is unclear.

Macaulay himself had acknowledged that the IPC was full of defects which he did not see. But what is amazing is that such a blatantly discriminatory provision—Section 497—has survived in the IPC despite vast changes in social mores and thinking over a century and a half.

That Macaulay might have reflected Victorian morals which are not in sync with contemporary reality is a reasonable comment on the history of the provision. That Section 497 is akin to Section 377 IPC, which criminalises “unnatural sex” between two consenting adults and which has similarly survived the vicissitudes of time, is a serious commentary on our resistance to change.

Therefore, when the Supreme Court decided on December 8 to issue notice in a petition challenging the constitutional validity of Section 497, it appeared as if it was a sitting duck, waiting to be struck down by the apex court.

UNFAIR SECTION?

Section 497 reads: “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.”

The petition also challenges the validity of sub-section (2) of Section 198 of the Code of Criminal Procedure (CrPC), which deals with prosecution for offences against marriage. This provision states that no person other than the husband of the woman shall be deemed to be aggrieved by an offence punishable under Section 497 or Section 498 of the IPC.

A proviso to this section says that in the absence of the husband, some person who had taken care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf. Section 498 deals with the offence of enticing or taking away or detaining with criminal intent, a married woman.

The petition, filed by Joseph Shine, an Indian citizen, presently employed in Italy, argues that when sexual intercourse, implying adultery, takes place with the consent of both parties, there is no good reason for excluding one party from the liability. It also argues that since sexual privacy is an integral part of the right to privacy, as held by the Supreme Court’s nine-judge constitution bench this year, excluding women from prosecution and privileging only the aggrieved husbands for this purpose is bad in law.

OTHER PRECEDENTS

Section 497 IPC was challenged before the Supreme Court earlier in three cases. The first challenge was in Yusuf Abdul Aziz v State of Bombay (1954). The second was in Sowmithri Vishnu v Union of India (1985) and the third was V Revathi v Union of India (1988).  The recent petition submits that the Sup-reme Court’s decisions in these cases— repelling the challenge to Section 497 IPC—were erroneous.

In 1971, the 42nd Law Commission Report recommended removal of the exemption provided for women from being prosecuted for adultery, and reduction of the punishment from five years’ to two years’ imprisonment, for the same.

In 2003, the Justice VS Malimath Committee report suggested that the object of Section 497 IPC was to preserve the sanctity of marriage, as society abhors marital infidelity. Therefore, the Committee said, there is no good reason for not meting out similar treatment to the wife, who has sexual intercourse with a married man.

The Committee, therefore, suggested amending the said provision to the effect that whoever has sexual intercourse with the spouse of another is guilty of adultery.

In 2011, the Supreme Court observed in W Kalyani v State of Tr. Inspector of Police and Another (2012) that Section 497 IPC not only shows a strong gender bias, but makes the position of a married woman almost a property of her husband.

In 2012, a working group of the United Nations established by the Geneva-based Human Rights Council in September 2010 urged member nations to eliminate laws that classify adultery as a criminal offence.

In 2015, the Supreme Court of South Korea struck down Article 241 of the Criminal Act, which stipulates imprisonment for two years or less for adultery and interdiction. The judgment held that the impugned provision was capable of excessive prohibition, and infringed on people’s right to self-determination and privacy.

GROUNDS OF CHALLENGE

The petition questions the assumption in the impugned provisions that sexual intercourse with an unmarried woman cannot constitute adultery, and that the consent of the husband of the married woman would decriminalise adultery. The petition argues that persons situated similarly cannot be subject to discriminatory or dissimilar treatment.

The impugned provisions, it submits, imply that men are arbitrarily punished and women not for committing the same offence, and therefore, are unjust, illegal and unconstitutional.

A man being caned for adultery at Al Abrar mosque in Banda Aceh, Indonesia. Photo: UNI
A man being caned for adultery at Al Abrar mosque in Banda Aceh, Indonesia. Photo: UNI

The Supreme Court had earlier upheld the constitutionality of Section 497 because it considered it a beneficial provision under Article 15(3) of the Constitution, which states: “Nothing in this article shall prevent the State from making any special provision for women and children.” Article 15(3), which permits affirmative action in favour of women, is not meant to exempt married women from the liability of punishment in criminal offences, the petition claims. “The assumption that women are incapable of committing adultery is irrational and perverse. Such an assumption is part of institutionalised discrimination,” the petition further argues.

Questioning the classification of married women as a special category and exempting them from the offence of adultery, the petition says there is no purpose sought to be achieved by the legislation having a rational nexus with this exemption.

On the contrary, the impugned provisions discriminate against women as they cannot prosecute or file a complaint because Section 198(2) of the CrPC expressly lays down that only the aggrieved husband of the woman in an adulterous relationship with another man, can do so. This means that a woman whose husband is committing adultery has no remedy under the law.

Wives of those men committing adultery are also equally aggrieved and therefore, excluding them from the purview of initiating criminal prosecution has no rhyme or reason, the petition points out.

Such exclusion is unjust, illegal and arbitrary, and violative of fundamental rights under Articles 14, 15 and 21 of the Constitution, it says.

PROPERTY OF MEN?

The petition also challenges the exclusion of adulterous behaviour which has the consent of the husband of the married woman, and that of unmarried women from the purview of the Act. The essential premise of the provision is that women are the property of men, the petition further contends.

In all the three cases in which Section 497 was challenged, the Supreme Court presumed that the man was the seducer, and not the woman. “This is highly incomprehensible. There is no scientific data or material to support this statement. In the current social situation, this observation is irrelevant,” the petition submits.

The petition contends that on a global level, there have been continuous concerns about decriminalising adultery. Adultery is not an offence in the UK and in most European countries. Though in some states of the US adultery is considered an offence under some provisions, they are not put to use. The European Parliament, vide a resolution on May 24, 2007, on human rights in Sudan, condemned the severe punishment imposed for adultery, and stated that it violated basic human rights and international obligations.

PRIMA FACIE FINDINGS

On December 8, the Supreme Court bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, which heard the petitioner’s counsel, Kaleeswaram Raj, found that prima facie, Section 497 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,” the bench observed in its order.

The bench also took note of the fact 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 independent identity of a woman, when the emphasis is laid on the connivance or consent of the husband, the bench held. This is tantamount to subordination of a woman while the Constitution confers equal status, the bench added.

“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 notice,” the bench observed, directing the listing of the case after four weeks.

Section 497 IPC is likely to be declared unconstitutional if one were to go by the Supreme Court’s judgment in Anuj Garg v Hotel Association of India (2007), which held that laws which are based on sexual stereotypes suffer from the vice of unconstitutionality.

So, going by the bench’s observations on December 8, Section 497 IPC and 198(2) CrPC seem to be on their way out.

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