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Adultery- the need for change in IPC

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Author : payalagarwal.alsn
Published on : March 19, 2011

Adultery- the need for change in IPC payalagarwal.alsn's

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In the state of nature...all men are born equal, but they cannot
continue in this equality. Society makes them lose it, and they payal agarwal
recover it only by the protection of the law. - Charles de hello, i am a IIIrd
Montesquieu year student in amity
law school, noida.
Marriages are made in heaven. Over centuries this has been
believed and marriage has always been considered as the building
block of the society and its sanctity has been accepted and respected in all societies and across
cultures.

But these days due to unrealistic expectations about marriage, curiosity, lost sense of fun and
excitement in the marriage, addiction to physical intimacy, inability to accommodate a partners
needs, interests or expectations, inability to communicate ones own interests, needs or desires,
boredom with the marriage, work, lack of verbal skills or motivation to solve relationship
problems together, people seem to drift away from their marriage and start searching for a new
partner in whom they find happiness and satisfaction.

This has been seen more so in the urban areas as compared to the rural areas probably because
of the modern lifestyle in urban areas. This emerging trend is wrong and will only devastate the
institution of marriage.

Though the law in India makes a thorough attempt to preserve the sanctity of marriage but
there are lot of lacunas and loopholes. Infact law needs to change with the changing needs of
the society. Codes and laws formulated in the nineteenth century have to be amended with time.
They need to be introspected and revised if the need be. Otherwise, it will lead to a stagnant
society, which will not develop and broaden its outlook.

One such provision of IPC which needs deliberation is Section 497, Indian Penal Code, refers
to adultery. Adultery in this section has been defined as

Whoever has sexual intercourse with a person who is and whom he knows or has a reason to
believe to be the wife of another man, without the consent or connivance of that man, such
sexual intercourse not amounting to 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 a case, wife shall not be punishable as an abettor.

History
Originally the section did not find a place in the first draft of Penal code prepared by Macaulay.
His reasons for not including it were as follows :

We considered whether it would be advisable to provide a punishment for adultery, and in

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order to enable ourselves to come to a right conclusion on this subject we collected facts and
opinions from all the three Presidencies.
The following positions we consider fully established: first, that all the existing laws for the
punishment of adultery are altogether inefficacious for the purpose of preventing injured
husbands of the higher classes from taking the law into their own hands; secondly; that scarcely
any native of higher classes ever has recourse to the courts of law in a case of adultery for
redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in
case of adultery to the Courts of law are generally poor men whose wives have run away, that
these husbands seldom have any delicate feelings about the intrigue, but think themselves
injured by the elopement, that they consider wives as useful members of their small
households, that they generally complain not of the wound given to their affections, not of the
stain on their honor , but of the loss of a menial whom they cannot easily replace, and that
generally their principal object is that the women may be sent back.1

These things being established, it seems to us that no advantage is to be expected from

providing a punishment for adultery. We think it best to treat adultery merely as a civil injury2

The Law Commissioners in their report on the draft Penal Code took a different view and said
while we think that the offence of adultery ought not to be omitted from the code, we would
limit its cognizance to adultery committed with a married women, and considering that there is
much weight in the last remark in note Q, regarding the condition of the women, in this
country, in deference to it, we would render the male offender alone liable to punishment. We
would, however, put the parties accused of adultery on trail together, and empower the Court in
the event of their conviction to pronounce a decree of divorce against the guilty woman, if the
husband uses for it, at the same time that her paramour is sentenced to punishment by
imprisonment or fine.3

The latter recommendation was not accepted, and in 1860, section 497 was enacted in its
present form.

Clause 199 of the Indian Penal Code Amendment Bill, 1976 read Section 497 as:
Whoever has sexual intercourse with a person who is, and whom he or she knows, or has
reason to believe, to be the wife or husband as the case may be, of another person, without the
consent or connivance of that other person, such as sexual intercourse by the man not
amounting to the offence of rape, commits 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.4
Though, the section still remains unchanged.

The Issues
The cognizance of this offence is limited to adultery committed with a married woman, and the
male offender alone has been made liable to punishment. Thus, under the code, adultery is an
offence committed by a third person against a husband in respect of his wife. It is not
committed by a married man who has sexual intercourse with an unmarried woman, whose
husband consents to it.

Now, the questions of law that arise here are:

Why has the code brought only the men in its ambit? Why have women received this perquisite
of not being brought under the ambit the code?
Is the section in this code not violative of Article 14 (which guarantees equality to all before the
law) and Article 15 (that the state shall not discriminate on the basis of sex)?

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Why should adultery be a criminal wrong? Should it not be a civil wrong?

Why should a man be guilty of adultery only when he has a sexual intercourse with a married
woman? Does having an intercourse with an unmarried woman make him less guilty of
breaching his wifes trust?

Article 14 of the constitution guarantees equality to all before the law or equal protection of the
laws within the territory of India.
Thus, both men and women involved in the commission of adultery should have an equal
standing before the law, as both have been equally involved.

Therefore, the section stands in violation of the fundamental right enshrined in part III of the
Constitution.

Though the article is circumscribed by the clause which states that the restriction imposed by
reason of a statute, however, can be upheld in the event it can held that the person to whom the
same applies, forms a separate and distinct class and such classification is reasonable one based
on intelligible differentia having nexus with the object sought to be achieved.
The prompt question is then how can we call the section violative of Article 14 if a piece of
legislation, in this case being Indian Penal Code, can be upheld in which the section expressly
provides for only the man to be held guilty and henceforth be punished for it.

It is here that the doctrine of reasonability steps in. Is the section 497 reasonable enough?
A code or statute so enacted must have a sound reason backing it. A statute or a law made
should be in coherence with some logic. A statute can not be imposed on people in the absence
of logic.

Where the equality enshrined in Article 14 is of wide import, it shouldnt be, very conveniently
restricted by the reason of a statute.

In Sowmithri Vishnu v. Union of India5, it was contended that Section 497 was violative of
article 14 of the constitution as it unjustifiably denies to women the right which is given to men
as it:
i) conferred upon the husband the right to prosecute the adulterer but it does not confer a
corresponding right upon the wife to prosecute the women with whom her husband has
committed adultery.
ii) does not confer any right on the wife to prosecute the husband who has committed adultery
with another woman, and
iii) does not take in its ambit the cases husband has sexual relations with unmarried women,
with the result that the husbands have a free license under the law to have extramarital
relationship with unmarried women.

The petitioner had also argued that the right to life includes the right to reputation and therefore
if the outcome of a trial is likely to affect the reputation of a person adversely, he or she ought
to be entitled appear and to be heard in that trial and since s. 497 does not contain a provision
that she must be impleaded as a necessary party to the prosecution or that she would be entitled
to be heard, the section is bad as violating Art. 21 of the Constitution.

The Supreme Court rejected these arguments and held that section 497 does not offend either
article 14 or article 15 of the constitution. The court observed

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Indeed, the section provides expressly that the wife shall not be punishable even as an abettor.
No grievance can then be made that the section does not allow the wife to prosecute the
husband for adultery. Law does not confer freedom upon husbands to be licentious by
gallivanting with unmarried ladies. It only makes a specific kind of extramarital 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.6

Supreme Court further observed We hope this is not too right but an underinclusive
definition is not necessarily discriminatory. The alleged transformation in feminine attitude, for
good or bad, may justly engage the attention of law makers when reform of penal law is
undertaken. They may enlarge the definition of adultery to keep up the pace with the moving
times. But until then law must remain as it is. The law, as it is, does not offend either article 14
or article 15 of the constitution.7

Regarding the second ground for Section 497 to be unconstitutional, namely, that it violates
Article 21 of the Constitution, the court held We have no doubt that if the wife makes an
application in the trial Court that she should be heard before a finding is recorded on the
question of adultery, the application would receive due consideration from the Court. 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 21.8

In V. Revathi v. Union of India9, the constitutional validity of Section 198 Cr.P.C. had been
called into question by a wife. The petitioner wife contended that whether or not the law
permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from
prosecuting her disloyal husband. The petitioner asserted that in so far as and to the extent
Section 198(2) of the Code of Criminal Procedure operates as a fetter on the wife in
prosecuting her adulterer husband, the relevant provisions is unconstitutional on the ground of
obnoxious discrimination.
Upholding the constitutionality of section 497 IPC and section 198(2) CrPC, which the court
said go hand in hand and constitute a legislative packet to deal with an outsider to the
matrimonial unit who invades the peace and privacy of the matrimonial unit, the apex Court
held :

The community punishes the 'outsider' who breaks into the matrimonial home and occasions
the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of
the spouses subject to the rider that the erring 'man' alone can be punished and not the erring
woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That
is why neither the husband can prosecute the wife and send her to jail nor can the wife
prosecute the husband and send him to jail. There is no discrimination based on sex. 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. Thus there is no discrimination against the
woman in so far as she is not permitted to prosecute her husband.10

The section also appears to be violative of article 15 of Constitution.

According to Article 15 of the Constitution
The state shall not discriminate against any citizen on grounds only of religion, race caste, sex,

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place of birth or any of them.

Then why is state itself not encouraging gender bias? Why is it discriminating among its
subjects?

Though the section also mentions that the shall not be prevented from making any kind of
special provision for women in article 15(3), the fact question here is that what did the framers
of the Constitution have in mind? Were they only referring to those provisions which shall
uplift the status of a woman in society and improve her condition or promote reservations
which will strengthen her in a male dominated society? Or did they mean to device a provision
for getting away from being punished.

The authors of the code observe

The condition of the women of this country is unhappily, very different from that of the
women in England and France, they are neglected for other wives while still young. We arent
so visionary as to think of attacking, by law, an evil so deeply rooted in the manners of the
people of this country as polygamy. We leave it to the slow, but we trust the certain, operation
of education and of time.11

The time has now come for a reform in this section as the constitution drafters definitely didnt
have a womens escape from punitive measures in mind.

In Yusuf Abdul Aziz v. State of Bombay12, it was contended whether Section 497, Indian
Penal Code, ultra vires the constitution.
The court said that the appellant overlooked article 15(3) of the constitution which is a special
provision for women.
It was argued that clause (3) should be confined to provisions which are beneficial to women
and cannot be used to give them a license to commit and abet crimes.
The court observed We are unable to read any such restriction into the clause; nor are we
able to agree that a provision which prohibits punishment is tantamount, to a license to commit
the offence of which punishment has been prohibited. Article 14 is general and must be read
with the other provisions which set out the ambit of fundamental rights. Sex is a sound
classification and although there can be no discriminate in general on that ground, the
Constitution itself provides for special provisions in the case of women and children. The two
articles read together validate the impugned clause in section 497 of the Indian Penal Code.13

Another question of law is that why is adultery a criminal wrong? Why shouldnt it be a
civil wrong?
Before the Marriage Laws (Amendment) Act, 1976, came into force, living in adultery was a
ground of divorce. On the other hand, a petitioner could obtain a decree of judicial separation,
if he could show that his spouse, after the solemnization of the marriage, had sexual intercourse
with any person other than his spouse.
Now, adultery simpliciter has been made ground of divorce as well as of judicial separation.
The present clause has been worded thus- : has, after the solemnization of the marriage, had
voluntary sexual intercourse with any person other than his or her spouse.14

It is a moral wrong and should be civil wrong and hence should be governed by provisions of
Civil law. The punitive action should be of nature which punishes the soul and conscience of
the guilty. Attraction towards other women because of an unexciting marriage is common. The
fear of corporal punishment has not yet been instilled in the minds of the people because still
adultery is a common scenario in many metros and even villages.

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Conclusion
Adultery isnt such a grave crime for which on gets a sentence of 5 years(maximum). As long
as it serves as a basis of getting a divorce, makes a man feel morally guilty, hurts his
conscience, the punishment has been given, divorce will serve as the punishment.

Imprisonment may further destroy his social and family life and may bring defamation along. It
also scars the minds of the children as they may not even understand why the father has been
imprisoned.

The next fact in question is that why is adultery not said to be committed when act of
consensual sex is done with an unmarried women or a widow?
Are the consequences of such an act different? Will the fact that he has not had a sexual
intercourse with a married woman make him less morally guilty? Has he not done injustice to
his wife and family? Will this not amount to breach of trust or will the wife accept it calmly?
Will she forgive him?

In 2006, National Commission for Women turned down proposals for amending Section 497.
The commission does not think that by merely prescribing punishment for women by amending
Section 497, marriage can be protected or saved.
In its recommendations forwarded to the Government, which asked it to review Section 497,
the NCW stated that considering the relatively socially unempowered position of women, no
amendments have been suggested.15

Is the law not encouraging adultery in the minds of women by this defect in the section? Its not
necessary that the woman is always a victim of such crime and not the author of it. A female
too may have an urge to step outside her holy matrimony; otherwise an act of non consensual
sex shall amount to rape.

The time has now come when all these questions must be answered. Vague and illogical laws
shouldnt find a place in society. It will make the subjects distant from the rulers and create
instability in the legal system.
_______________________
ENDNOTES
1. Reports of the Law Commission of India, Universal Law Publishing Co., Vol.5, 42nd report-
India Penal Code, pg. 42.288.
2. id at 42.289
3. Ibid
4. Reports of the Law Commission of India, Universal Law Publishing Co. Volume 13,156th
report-Indian Penal Code, pg. 156.75
5. 1985( 1 )Suppl. SCR 741
6. supra note 5 at pg. 746
7. supra fn at 747
8. id at 748
9. 1988( 3 )SCR 73
10. id at 78
11. Ratanlal and Dhirajlal, Indian Penal Code, 30th edn, pg 913
12. 1954 SCR 930
13. id at 932
14. Paras Diwan, Modern Hindu Law, 18th edition, pg 157

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15. http://www.hindu.com/2006/12/26/stories/2006122603270900.htm viewed as on 7.04.2010

at 13:55
The author can be reached at: payalagarwal.alsn@legalserviceindia.com

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