ADULTERYA CRIME SHOULD BE PUNISHABLE FOR BOTH MALE AND THE FEMALE INDULGED
– Binit Kumar Sinha1
Adultery is a crime in the normal form. It is been practised by people from time immemorial. People of the different countries have different views on the adultery. Indian PenalCode has only punishments for men where as in different countries it is for both or in some countries it’s legal. It has been written even in the holy books of the different religion that about the punishment of both sexes involved in adultery. So by the passage of timethere is the need of some changes in theArticle- 497 of IPC, 1860.
Every day when we open the news channel, newspaper, radio we get news on adultery, which is leading to divorce.If wesee in a broader perspective wewill seethat in the early era there were reasons for committing adultery,but why now. Earlier it was thought that to increase the population of a tribe, for lack ofrecreation these allwere done. The term adultery is in existence from time immemorial, when people were nomads. Till datein this advanced world of technology in the era where we are speaking of travelling to other planets we are still facing this adultery.
The term Adultery (also called philandery, anglicised from Latin adulterium) is sexual intercourse between a married person and someone other than the spouse.2 In the traditionalEnglish common law, adultery was a felony.Although the legal definition of “adultery” differs in nearly every legalsystem,the common theme is sexualrelations outside of marriage, in one form or another. Religious and legal interpretations of what constitutes adultery vary widely. The Concise Oxford Dictionary defines adultery as “voluntary sexualintercourse of married person with any person other than his spouse”.3
Legal definitions of adultery vary from country to country : The Halsbury’s Laws of England (10th Edition); states the legaldefinition of adultery as follows:”For thepurpose ofrelief in matrimonialjurisdiction, adultery means consensualsexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse”.4 New York defines an adulterer as a person who “engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse.” North Carolinadefines adulteryas occurringwhen any man and woman “lewdly and lasciviously associate, bed, and cohabit together.” Minnesota law provides :”when a married woman has sexualintercourse with a man other than her husband, whether married or not, both are guilty of adultery.” In common-law countries, adultery was also known as “criminalconversation”. This became the name of the civiltort arising from adultery, being based upon compensation for the other spouse’s injury.
ADULTERYIN INDIAN PENAL CODE
The word ‘adultery’ has been derived from the Latin term ‘adulterium’ and is defined as consensual sexual relationship between a married woman and an individual otherthan his/her spouse. Almost all religions throughout the world condemn it and treat itas an unforgivable offense. However, this may not be reflected in the legal jurisdictions of the countries but adultery is recognized as a solid ground for divorce in all penal laws.
The Indian penal code also recognizes adultery as a crime and a punishable offence.This lawcomes under the criminallaw ofIndia and has been placed under chapter XX that deals with crimes related to marriage. The laws as stated in the Indian penal code are :
Section-497-Adultery “Whoever has sexualintercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without theconsent or connivance ofthat man, such sexual intercoursenot amountingto theoffence of rape, is guilty ofthe offence ofadultery, and shallbepunished with imprisonment ofeither description for a term which may extend to five years, orwith fine, or with both. In such case, the wife shallnot be punishable as an abettor.”5
When there is a crimeso there are also some punishments for it.As per the definition the punishments also differ from country to country, from religion to religion, from person to person.As according to Indian Penal Code, the punishment is whoever commits adultery shallbe punished with an imprisonment which may extend to five years, or with fine, or both. In Indian law books, adultery is stillregarded as the transgression of marital property and treats Indian women as sufferers and not the ones who may have initiated the act of adultery and so they are not punishable even as abettors. 6
PUNISHMENT FOR ADULTERY IN OTHER COUNTRIES
Thepunishment for adultery varies from country to country and region to region. In SouthwestAsia, infidelity has attracted harsh treatments like death sentence. In countries like Iran and SaudiArabia, the mode of punishment foradultery is stoning to death. Similarstrict laws exist in almostallthe Muslim countries and in most of them, the punishment for fornication and adultery is stoning to death. However, this method of punishment has made headlines in the recent past and there had been worldwide protests against such death penalties. Bible also treats adultery as a wrongdoingand has prescribed death as an apt punishment. According to the Old Testament, “And the man that commits adultery with another man’s wife, even he that commit the adultery with his neighbour’s wife, the adulterer and the adulteress shallsurely be put to death.” But this has changed in due course of time and death penalty is a rare occurrence in the Christian world. In USA, laws vary from state to state.Although rarely prosecuted, but adultery is still on the statute books and penalty may vary from a fine of few dollars to even life sentence. Butin USmilitary, it is an impending court-martialcrime. The European Union has decriminalized adultery and people are not prosecuted for committing infidelity, but it’s a solid ground for divorce. In some south-European countries, adultery is punishableand penalties up to a life sentence can be given but this is rarely indicted. Few East Asian countries like Korea, Taiwan and Philippines stilltreat adultery as a crime while in China it is not a crime but amounts to ground for divorce.7 According to Alabama – Section 4184 of the Code of Alabama provides that ‘if any man and woman live togetherin adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than $100, and may also be imprisoned in the county jail or sentenced to hard labour for the county for not more than six months. On the second conviction for the offense,with the same person, the offender must be fined not less than $300, and may be imprisoned in the county jail, or sentenced to hard labour for the county, for not morethan 12months; and for a third or any subsequent conviction with the same person, must be imprisoned in the penitentiary or sentenced to hard labour for the county for two years.”8 In Florida, according to law both male and woman should be punishable of imprisonment of 2 years.9
As the military rules and regulations are different so, adultery is not listed as an offense in the Uniform Code of Military Justice (UCMJ). The UCMJ is a federal law, enacted by Congress, to govern legal discipline and court martial for members of the armed forces. Articles 77 through 134 of the UCMJ encompasses the “punitive offenses” (these are crimes one can be prosecuted for). None of those articles specifically mentions adultery. The famous Lt. Kelly Flynn case, Lt. Kelly Flynn was the Air Force’s first female B-52 pilot. Unfortunately, Lt Flynn was an unmarried officer who was having an affair with a married civilian. Lt Flynn was advised by a First Sergeant, and later ordered by her Commander, to terminate the affair. She lied that she broke up. Lt. Flynn was then charged with the offenses of adultery, giving a false official statement, conduct unbecoming an officer, and disobeyingan order of asuperior commissioned officer. Lt Flynn didn’t face a military court,however; shewas allowed to resign her commission in lieu of court martial (lots of media attention probably had something to do with this decision by the Air Force).10
Need for some change in the section 497 of Indian penal code specially in the punishment perspective
In New Hampshire, for instance, legislators are trying to repeal a 200- year-old adultery law that is widely viewed as unconstitutional. Social conservatives, however, insist that such laws are needed to back up moraldictates with criminal sanctions. A 1997 poll showed that 35% of Americans believe adultery should be a crime, and similar efforts to decriminalizeadultery havemet with opposition in states such as Illinois and Minnesota.11
Prima facieunequaltreatmentis meted out by the law to men & women, there’s an inherent law, It makes theoffence punishable for men but not the wife, to punish the man severely and to let the women who was an equal part to go scot free is unreasonable on the face of it, it is discriminatory that for the sameact theman becomes the manifestation of evil but the woman still is considered to retain her virtues and is treated as a victim. It is unexplainable that for thesame wrongfulact the man is presumed by the law to have a mens rea while no such presumption is attributed in reference to the woman. The consent or thewillingness of the woman is no impediment to the application of this section, and, as generally happens, she is quite aware of the purpose for which she is quitting her husband and is an assenting party to it.
Considering thepresent day situation and the vasttransformation which the society has undergone, Blindly assuming that ‘man is the seducer and not the women’ would be a dangerous proposition; the boot is on the other legthese days, in avariety of cases. Thelaw makes an irrational classification between man and woman, in restricting the class of offenders to men, where women or wife is an equal partner; it violates constitutionalprovisions enshrined in Articles 14, 15 & 21.
The Justification taken by the Framers of theCode, and the retentionists lobby for this aberration is that owing to the atypicalsocial conditions, it would not be just & proper to punish women equally, as they were a subjugated and exploited lot, and I am constrained to say that it was to a certain extent applicable in that era, now bygone.
The IPC when it was formed in 1860 was silent on the punishment for adultery with Lord Macaulay observing, “There are some peculiarities in the state of society in this country which may welllead ahumane man to pause beforehe determines to punish the infidelity of wives.”
The framers of the code believed that if the women did the deplorable act it was pressured by their socialand private conditions in life. Hence they were actually not at fault and taking into account their already depleted station in life they should not have been held liable at least in the eyes of the law.12 ABench of Justices Aftab Alam and R.M. Lodha said, “Section 497 of the Indian PenalCode [which deals with adultery] is currently under criticism from certain quarters for showing a strong gender bias, for it makes the position of a married woman almost as a property of her husband.But in terms of the lawas itstands, itis evident from a plain reading of the Section that only a man can be proceeded against and punished for … adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor.”13 The punishmentis meted out to the man though the woman with whom he had consensual sex was an equal partner in the alleged crime. Even in different religious books, the bible, the Quran, the Bhagavad Gita consider the adultery as sin. And in every religion there is punishment for both the person the male and the female involved in it.
SUPREME COURT ON LAWOF ADULTERY
In 1951, oneYusuf AbdulAziz challenged the constitutionalvalidity of the provision. However, Bombay high court chief justice M C Chagla had upheld the provision saying theConstitution permitted such special legislation for women, itwas held in this case that this section does not contravene any of the fundamentalrights laid down in the Constitution of India, and therefore it is not bad or void under Articles 13.14 Accordingto the court, thesection 497 does not even violate the article 14, 15 & 21. The evil that is punished by the law, in the mind of the court, is that of seduction of a woman by another man.
In V. Revathi v. Union of India, 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 disloyalwife, the wife cannot be lawfully disabled from prosecuting her disloyal husband. Upholding the constitutionality of section 497 IPC and section 198(2) CrPC, which the court said go hand in hand and constitute a legislativepacket to deal with an outsider to the matrimonial unit who invades the peace and privacy of the matrimonialunit, 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.15
WHAT NEEDS TO BE DONE?
It is pertinent to note here that The 42nd Law Commission Report  has suggested to substitute section 497 of the IPC, the substituting provision is “S. 497.Adultery – 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 theconsent or connivance of that other person, such sexual intercourse by the man not amounting to theoffence 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”
The Malimath Committee on CriminalJustice Reforms has re-iterated, that men and women being equally partners in the deplorable act, should be made to stand at the same footing, and equal treatment should be meted out to both the male and the female indulged.16
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)? In the constitution articles 14, 15, 21 they are truly contradicting the section 497 of Indian penal code. We must keep in mind that these reasons and defences weregiven decades ago. The mostimportant reason for debate to get re-ignited is the drastic change in the socialstatus of women. Gone are the days when Women were a suppressed or subjugated lot, The practices of sati, child marriage, polygamy, etc, have been done away with.
Today there are laws against these evils and also laws providing effective relief against heinous acts such as domestic violence, dowry and others. Almostall professionalcolleges have a quotafor women. Thus women today are in no way inferior to men or suppressed, and are at par with the opposite sex. The effective implementation of these laws and other women friendly provisions in the constitution insures thatwomen, today, have an edge in the society. All this has resulted in them gaining the power of choice. They can no longer beclassified as victims in cases of adultery.17
When in the early time on the rules for adultery can be so tight both for the male and the female so why not now. It is very much essential for the section 497 to be amended.As in this society many times the women induces the male in the intercourse. So in such a case why the male should be only punished. Both are guilty.
The ultimate shame a husband can face in matrimony is an adulterous wife and blaming it on a third person is like drenching himself in filth. In light of the above criticalanalysis, it is very much apparent & beyond doubt, that the prevailing law is not in consonance with the changed times, the law is neither socially appropriate nor does it stand to the principles of equality, from absolute conservatism to absolute liberty, the social fabric of our country has undergone a drastic change. It is high time that Recommendations made by the Justice Malimath Committee and the 42nd Report ofthe LawCommission be taken into consideration religiously, and necessary amendments are made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.18
In the state of nature…all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it o nly by the protection of the law – Charles de Montesquieu19
“Infants have their infancy; adults, adultery.” ? David P. Barash.
1. Lexis Nexis – The Indian Penal Code, 1860.
2. Ratanlala & Dhirajlal – The Indian Penal Code. 28th Edition Reprint 2002. Justice YV Chandrachud & Justice VR Manohar.
3. Universal P ublications – The Indian P enal Code, 1860.
4. J.N P andey – Indian Constitution.
5. Indian Penal Code – K.D. Gaur
6. The Indian Penal Code – R.N. Saxena.
7. Free Dictionary by farlex.
8. The Law of Adultery and Ignominious P unishments – Andrew Mcfarland Davis.
BLOGS AND WEBSITES
4. Concise oxford dictionary
5. Bible Dictionary
8. Islamic Research Foundation International, Inc. Zina and Rajm.
11. Legal Service India.com