Adultery" in the Indian Penal Code: Need for a Gender Equality Perspective
by K.I. Vibhute*
Cite as : (2001) 6 SCC (Jour) 16
1. INTRODUCTION
The term "adultery" has its origin in the Latin term adulterium. It is understood as a voluntary sexual action by a married person with another married or unmarried individual. Almost every religion condemns it and treats it as an unpardonable sin1. However, this is not reflected in the penal laws of countries. Nevertheless, all the legal systems invariably do recognise it as a ground for seeking divorce from the errant spouse.
Section 497 of the Indian Penal Code (IPC) perceives a consensual sexual intercourse between a man, married or unmarried, and a married woman without the consent or connivance of her husband as an offence of "adultery". A sexual link between a married or unmarried man and an unmarried woman or a divorcee or a widow, therefore, does not come within the ambit of "adultery". It also holds the man and not the (adulteress) "wife" of another man, who has been unfaithful to her husband, solely responsible for the sexual liaison. IPC, it seems, views "adultery" as an invasion of the right of the husband over his wife and therefore puts it under Chapter XX: "Of Offences Relating to Marriage".
However, the feminists in India today say that the Indian law relating to adultery is premised on the outdated notion of "marriage". The law, according to them, is not only based on the husband's right to fidelity of his "wife" but also treats "wife" merely as a chattel of her husband. Such a gender-discriminatory and proprietary-oriented law of "adultery", they argue, is contrary to the spirit of the equality of status guaranteed under the Constitution of India.
It is proposed to evaluate the present law on adultery in the light of the contemporary notions of "marriage" and mutual obligations of "wife" and "husband" arising thereunder. The proposal for reform would also be examined.
2. ADULTERY AND GENDER EQUALITY: LEGISLATIVE PARADIGM AND RATIONALE
2.1 Criminal policy: evolution and rationale
Lord Macaulay did not deem it fit to put infidelity in his First Draft of the Indian Penal Code. Reviewing facts and opinions collected from all the three Presidencies about the feasibility of the criminalisation of adultery, he concluded:
"It seems to us that no advantage is to be expected from providing a punishment for adultery. The population seems to be divided into two classes - those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honour are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances, we think it best to treat adultery merely as a civil injury."2
The Law Commissioners in their Second Report on the Draft Penal Code, however, took a different view. Disfavouring the Macaulian perception of adultery, but placing heavy reliance upon his remarks on the status of women in India, they concluded:
"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 woman, 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."3 Section 497 of the Penal Code reflects the above perception and defines "adultery" thus:
"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 497 unequivocally conveys that the adulteress "wife" is absolutely free from criminal responsibility. She is also not to be punished (even) for "abetting" the offence. Section 497, by necessary implication, assumes that the "wife" was a hapless victim of adultery and not either a perpetrator or an accomplice thereof. Adultery, as viewed under IPC, is thus an offence against the husband of the adulteress wife and, thereby, an offence relating to "marriage".
It is in consonance with this approach that Section 198 CrPC mandates a court not to take cognizance of adultery unless the "aggrieved" husband makes a complaint. It runs as under:
"198. Prosecution for offences against marriage.—(1) No court shall take cognizance of an offence punishable under Chapter XX of the In