Justice for all: Not all Casanovas are adulterers under an archaic law!
It’s a classic Jekyll and Hyde law. On the one hand, Section 497 of the Indian Penal Code dealing with adultery, is an affront to women, and on the other, it grants them immunity. That was reason enough for the Supreme Court in Joseph Shine Vs Union of India to refer the provision to a Constitution Bench to evaluate it on the touchstone of gender equality. The wording of the provision is archaic to the extent that it makes an exception for the offence of adultery if the husband deigns to give his “consent” or just connives! It is outrageous to view women as property of their husbands. The apex court rightly observed 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 on the individual independent identity of a woman when the emphasis is laid on the conniv-ance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status.”
The second limb of this provision is equally peculiar as it states that “the wife shall not be punished as an abettor.” The Supreme Court in W.Kalyani Vs State held that “it is evident from a plain reading of the section that only a man can be proceeded against and punished for the offence of adultery.” The provision confers upon the husband the right to prosecute the adulterer but does not empower the wife to prosecute the woman with whom her husband has committed adultery.
It surpasses any reasonable person’s comprehension as to why sexual relationship with an unmarried woman falls beyond the scope of this law. The Supreme Court in Sowmithri Vishnu Vs Union of India stopped short of answering this. “Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. It only makes a specific kind of extra- marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most : A man seducing the wife of another.” Incidentally, one of the Ten Commandments to Christians is : ‘Thou shall not covet your neighbour’s wife.’
What about a live-in relationship a married man has with an unmarried woman? This too fails not just the test of adultery but also bigamy, punishable under Section 494 of the IPC, if the essential ingredient of “marrying again” during a subsisting marriage is absent. While holding that ‘living-in’ is “neither a crime nor a sin, though socially unacceptable in this country”, the Supreme Court in Indra Sarma Vs VKV Sarma propounded an eight point test for such practices to fall within the expression ‘relationship in the nature of marriage’, such as shared household, pooling of financial resources or having children.
The saving grace, if any, can be gleaned from the legislative intent of this penal provision to prevent spouses from using it to wreak vengeance. The apex court in V. Revathi Vs Union of India held that Section 497 IPC “does not arm the two spouses to hit each other with the weapon of criminal law.” It held that Section 497 IPC of the Indian Penal Code and Section 198(1) and 198(2) of the Criminal Procedure Code (CrPc) go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie.”
The National Commission of Women has recommended that Section 198 of the CrPc be amended to allow women to file complaints against ‘unfaithful’ husbands and prosecute them for their promiscuous behaviour. But this has not been accepted till date. On the other hand, the Prof. Madhava Menon Committee had suggested the scrapping of Section 497 from the IPC and the Justice Malimath Committee had recommended decriminalising the provision. The most practical view emanated from the Supreme Court in Sowmithri Vishnu’s case. “It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.”
