Adultery law deeply flawed, must be dumped

After about a century and a half since it was included in the Indian Penal Code in 1860, there appears a slight chance that a provision which renders adultery (or matrimonial infidelity) a criminal offence may be deleted. This provision, which strikes at the root of human dignity of women, is challenged in a petition filed by Joseph Shine vs the Union of India.

If the initial comments of judges at the admission stage are anything to go by, the response is positive. “The time has come when society must realise a woman is equal to a man in every respect,” the Supreme Court said while admitting the petition in December 2017.

The offending clause (Section 497 IPC) mandates: “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.” This is punishable with a maximum punishment of five years jail and fine.

At the preliminary stage, while examining this provision, the Supreme Court declared: “The provision creates a dent in the individual identity of a woman when the emphasis is laid on the connivance or consent of the husband. This tantamounts to subordination of a woman, whereas the Constitution confers equal status to a woman.”

It is interesting to note that the First Law Commission, set up in 1834 under Thomas Macaulay to draft the IPC, did not include adultery as a criminal offence, and instead relegated it to the realm of a civil offence or, in other words, a matrimonial offence. However, the Second Law Commission, headed by John Romilly, dissented with the views of Macaulay and prescribed criminal punishment. But given the then prevailing condition of women, where most of them lacked agency, recommended they should be spared from criminal prosecution. So she was viewed merely as a victim of male lust.

Much water has flown under the bridge since then. Women have made great strides in education, political participation and economic empowerment, and the gender gap in these fields has reduced considerably. In addition, in 1950, we gave ourselves a Constitution that guaranteed equality, prohibited gender discrimination and ensured human dignity. So logically, at this stage, the sexist and discriminatory provision had to go. But various law commissions declined to do so, on the ground that it was necessary to retain it to preserve the sanctity of marriage.

However, the 42nd report of the Law Commission (1971) had a strong dissenting voice from a member, Justice Anna Chandy, India’s first woman high court judge, also a first generation feminist, who voted for its deletion on the ground that “it is the right time to consider the question whether the offence of adultery, as envisaged in Section 497, is in tune with present-day notions of a woman’s status within marriage”.

But in 2003, the Justice Malimath Committee recommended that it should be retained — it proposed that the punishment should be reduced to two years and that it should be made gender-neutral. In 2007, the National Commission for Women (NCW) strongly opposed the Centre’s move to give effect to this recommendation, pointing out the ground reality of women’s lives and suggested it should be retained only as a matrimonial offence entitling the parties to claim divorce.

The judicial discourse around this issue, so far, has also been problematic. In 1954, in Yusuf Aziz vs State of Bombay, the Supreme Court upheld it on an erroneous ground that it is a special provision in favour of women and thus protected under Article 15(3) of the Constitution. However, a protectionist and paternalistic approach towards women is no less sexist. The court failed to take note of the basic premise of women’s subordination within marriage, which is inherent in this section.

In 1985, the Supreme Court again upheld its constitutional validity in Sowmithri Vishnu vs Union of India, and said that even though the social scenario may have changed, it was for the legislature to decide the law, and it wasn’t within the domain of the judiciary. In 1988, in V. Revathi vs Union of India, the constitutionality of the adultery provision was upheld on the ground that it amounted to “reverse discrimination” favouring women. Here the court adopted an absurd logic that since both husband and wife cannot prosecute each other, it was based on an equal footing.

The rationale for its retention on the ground that it upholds the sanctity of marriage is deeply flawed. It merely protects male privileges within marriage. When adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman’s sexuality and bodily integrity is reinforced. It grants the husband the right to treat his wife as a passive sexual being and her consent to the sexual act becomes immaterial. This poses a challenge to Article 21 of the Constitution, which guarantees the right to life, that includes a life with dignity.

Though apparently pro-women, this provision hangs like a sword over a woman in a violent marriage. Any man who dares to help her to escape from this life-threatening situation can be kept at bay merely with the threat of initiating criminal proceedings under Section 497 against him. I have seen it happening in several of my own cases.

Though considerable advances have been made in the  educational, economic and political empowerment of women, our track record for women’s health and survival continues to be dismal. National and international studies have revealed that every third woman in India is a victim of domestic violence.

There are a few judges and legal experts, including members of various law commissions, who have, over the years, recommended that if this provision is made gender neutral, it can be cured of its constitutional challenge to Article 14 — the provision of equality. This is an extremely shortsighted view of gender relationships within marriage. When marriage is constructed as a patriarchal institution, the woman does not have a corresponding control or power over her husband’s sexuality. Granting the husband an additional power to prosecute his wife for adultery is like adding salt to a festering wound.

How will this help to achieve gender parity?

Whether the judiciary will walk the extra mile and strike down the offending section is anyone’s guess. But it is obvious that either through a judicial proclamation or through the route of legislative reform, this deeply flawed section must be taken off our statute books.