TRANSFORMATIVE CONSTITUTIONALISM: ABOLITION OF ADULTERY LAW
Updated: Jun 16, 2020
Written by: Sivapuram V.L. Thejaswini, Student, Alliance School of law
Our Indian Constitution, which is a magnificent, compassionate and monumental document embodies the concept of golden triangle of fundamental rights. ‘Section 497’ appears in ‘Chapter XX’ of the IPC (Indian Penal Code), which deals with offences relating to marriage. In this article we are adverting to the constitutional validity of ‘Section 497’ of the IPC and ‘Section 198’ of the CrPC (Code of Criminal Procedure). It can be announced with certitude that ‘TRANSFORMATIVE CONSTITUTIONALISM’ asserts itself every movement and asserts itself to have its space. What may be acceptable at one point of time may melt into total insignificance at another point of time.
Prima facie, on a perusal of ‘Section 497’ of the IPC, we find that it grants relief to the wife by treating her as a victim. Ordinarily, the Criminal law proceeds on ‘Gender neutrality’. It is worthy to note here that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. Here comes the question, ‘When there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband?’
In the case of ‘Joseph Shine v. Union of India’ the question arose ‘Whether ‘Section 497’ contravened ‘Articles 14 & 15’ of the Constitution of India?’ In this case the appellant was being prosecuted for adultery under ‘Section 497’, IPC. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional question under ‘Article 228’ of the Constitution. It is here to overlook the ‘Article 14 & Article 15 (3)’ on which the appellant relies-
‘Nothing in this article shall prevent the State from making any special provision for women.’ We are able to agree that a provision which prohibits punishment is tantamount to a license to commit the offence of which punishment has been prohibited. These two articles read together validate the impugned clause in ‘Section 497’ of the IPC.
It is argued here that the appellant who is not a citizen of India and for this reason, he could not invoke ‘Article 14 & 15’.
Section 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.
Section 198 – CrPC :
Provides for ‘Prosecution for offences against marriage’. From these provisions it may be noted that the offence is ‘Non – cognizable’.
In ‘Sowmithri Vishnu v. Union of India’ a petition referred under ‘Article 32’ of the Constitution challenged the validity of ‘Section 497’ of the IPC. Here it was contended that the husband’s have a free license under the law to have extra marital relationships with unmarried women. There is a flagrant instance of ‘Gender discrimination, Legislative despotism and Male chauvinism’. On closer examination, it would be found that the provision contained in this section is a kind of ‘Romantic paternalism’ which stems from the assumption that women, like chattels are the property of men. In ‘Revathi v. Union of India’ the law envisages that there is no discrimination against the woman as she is not permitted to prosecute her husband, as stated in ‘Section 198 (1), Section 198 (2).
The argument really comes to the extent that the definition of adultery should be recast by extending the ambit of the offence of adultery, where both the man & woman should be punishable. The contemplation of the law, evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, is considered as an offence against the sanctity of the matrimonial home, by the legislature.
The right of hearing is a concomitant of the principles of natural justice, though not in all the situations. So the fact that a provision for hearing the wife is not contained in ‘Section 497’ cannot render that section unconstitutional as violating ‘Article 21’. ‘Article 14’ of the Constitution naturally divides itself into two parts-
(i)Equality before the law.
(ii)Equal protection of the law.
In a dissenting judgement by ‘Subba Rao, J.’ in ‘State of UP v. Deoman Upadhyaya (1961)’ states that ‘Equality before the law’ is negative and ‘Equal protection of the law’ has a positive content. In ‘Yusuf Abdul Aziz v. State of Bombay’ case the Court understood that the protection of women as not discriminatory but as being an affirmative provision under ‘Clause (3) of Article 15 of the Constitution’.
‘Section 497’ of the IPC does not bring with in its purview an extra marital relationship with an unmarried woman (or) a widow. The dictionary meaning of ‘Adultery’ is that a married person, if he has sex with a woman, whom he has not entered into a wedlock. In ‘State of Madhya Pradesh v. Madanlal’, the Court held that ‘Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is ‘sacrosanct’.
‘Lord Denning’ states ‘A wife is no longer her husband’s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern’. Long back, ‘Charles Fourier’ had stated ‘The extension of women’s rights is the basic principle of all social progress’. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life & liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy.
In the ultimate analysis, the fundamental right of privacy, which has so many developing facets, can only be developed on a case to case basis. Depending upon the particular facet that is relied upon, either ‘Article 21’ by itself or in conjunction with other fundamental rights would get attracted. In the context of ‘National Legal Services Authority v. Union of India and others’ where in ‘A.K. Sikri, J.,’ in his concurring opinion, emphasizing on the concept of dignity, has opined, ‘If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/ gender identity which is integral his/ her personality and is one of the most basic aspect of self-determination, dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity’.
The question we intend to pose is ‘Whether adultery should be treated as a criminal offence’?
In this context, we are reminded of what ‘Edmund Burke’ a famous thinker, had said, “A good legislation should be fit & equitable so that it can have a right to command obedience”. Burke would like to put it in two compartments- namely, ‘Equity & Utility’. If this principle is properly understood, it conveys that laws and legislation are necessary to serve and promote a good life. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, ‘Sydney Smith’ said, ‘When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool’. The law must, therefore, in a changing society march in tune with the changed ideas and ideologies’.
Suffice it to say, it is different from an offence committed under ‘Section 498-A’ or any violation of the Protection of women from Domestic Violence Act, 2005 or, for that matter, the protection conceived or under ‘Section-125’ of the Code of Criminal Procedure or ‘Sections 306 or 304B or 494 IPC’. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery as an offence, we are disposed to think, would tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. It is better to be left as a ground for divorce. In the context of ‘Section 498-A’, the Court, in ‘Ghusabhai Raisangbhai Chorasiya v. State of Gujarat’, has opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such degree of mental cruelty, which includes cruelty to drive the woman to commit suicide, would be attracted.
In the case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit.
Adultery as a crime is no more prevalent in People’s Republic of China, Japan, Australia, Brazil and many western European countries. As we see the International perspective, most of the countries have abolished adultery as a crime. Thinking of it from the point of view of criminality would be a retrograde step. Hence to treat adultery, as a crime would be unwarranted in law. So now it is appropriate to declare ‘Section 198 CrPC’ which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. It will be noticed that the crime of adultery punishes only a third-party male offender as against the crime of bigamy, which punishes the bigamist, be it a man or a woman. What is punished therefore as adultery is not ‘adultery’ per se but the proprietary interest of a married man in his wife. In this country, however in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a Vedic scholar, for three years.
In India, ‘Lord Macaulay’, in his draft Penal code, which was submitted to the law commissioners, refused to make adultery a penal offence. Many things which are not punishable are morally worse than many things which are punishable. The ‘Bombay High Court’ through ‘Vivian Bose, J.,’ held that the last part of ‘Section 497’, which states that the wife shall not be punishable as an abettor of the offence of adultery, does not offend ‘Articles 14 & 15’ in view of the saving provision contained in ‘Article 15(3)’, being a special provision made in favour of women. The Court then referred to the ‘42nd Law Commission Report’, which recommended the retention of ‘Section 497’, with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery.
TOWARDS TRANSFORMATIVE JUSTICE-
Constitutional values infuse the letter of the law with meaning. True to its transformative vision, the text of the Constitution has, time and again, been interpreted to challenge hegemonic structures of power and secure the values of dignity and equality for its citizens. One of the most significant battles for equal citizenship in the country has been fought by women. Feminists have overcome seemingly insurmountable barriers to ensure a more egalitarian existence for future generations. However, the quest for equality continues.
In view of the anomalies and the discussions held, it is declared in the SUPREME COURT-
‘Section 497’ is struck down as unconstitutional being violative of ‘Articles 14, 15 & 21’ of the Constitution.
‘Section 198(2)’ of the CrPC which contains the procedure for prosecution under ‘Chapter XX’ of the IPC shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under ‘Section 497’.
The decisions in the cases of ‘Sowmithri Vishnu, V Rewathi and W Kalyani’ hereby stand overruled.
 Sowmithri Vishnu v. Union of India, (1985) 5 (India).  Revathi v. Union of India, (1988) 5 (India).  Yusuf Abdul Aziz v. State of Bombay, A.I.R 1954 S.C 321 (India).  State of Madhya Pradesh v. Madanlal, (2015) 7 SCC 681.  National Legal Services Authority v. Union of India, (2014) 5 SCC 438.  Ghusabhai Raisangbhai Chorasiya v. State of Gujarat, (2015) 11 SCC 753.