Legal Service India - The Antiquated Shackles of Adultery
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The Antiquated Shackles of Adultery (An Analysis of The Flaws in the Law and A Discussion of the Pros And Cons of Different Recommendations To Reform The Law of Adultery)

Written by: Paresh Bihari Lal - 2nd year - 2006 B.A.LL.B(Hons.), National Law Institute University, Bhopal
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To be or not to be that is the question --- Shakespeare.
The dying voices analyzing and criticizing every aspect of the law have risen again. The insistence of the National commission for women and the report of the Madhav Menon committee have breathed a new lease of life in the dying controversy. The law relating to adultery as existing in the Indian penal code under section 497 has been criticized ever since it’s inception. Its validity both on the constitutional grounds as well as philosophical grounds has been challenged time and again. It is a wonder then that the law stands, unaltered and unperturbed, in the democratic India.

Although there is little doubt that the law is flawed, yet there exists some disparity about the proposed remedy. To some the law itself is welcome, but its content is not. They believe that adultery should be treated as a crime but the discrepancies should be amended. To the supporters of Madhav Mennon and the National Commission for Women the law is obsolete in the context of the modern society and does not merit being treated as a crime. On the other hand, the Malimath Committee on Criminal Justice Reforms recommends that adultery should remain as a crime but section 497 of the IPC has to be amended to the effect that it makes women also equally liable. In the light of these recommendations and observations of the Apex Court in various cases, it is high time that the law needs to be re-evaluated and we rid ourselves of the confusion

The Law as it Stands: To understand the source of the dilemma we need to understand the law and its various points of contention. The law relating to the crime of adultery is present in section 497 of the Indian Penal Code.

Simply put the law declares it a crime for a man to have sexual intercourse with the wife of another man, without the consent of the husband; the consent may be explicit or implicit. The law also explicitly declares that the wife in such cases may not be prosecuted

The Complaints: To start with, the prima facie unequal treatment meted out to men and women has been questioned frequently. What seems arbitrary is the fact that the law may be used to punish the man while allowing the woman, who had equally been involved in the act, to go absolutely free. It appears discriminatory that for the same act the man becomes the manifestation of evil but the woman still is considered to retain her virtues. It is unexplainable that for the same wrongful act the man is presumed by the law to have a mens rea while no such presumption is attributed in reference to the woman. The guiding principle of the law is that all persons and things similarly circumstanced should be treated alike in both the privileges conferred and liabilities imposed. Again the evil attempted to be prevented is the an extra marital relationship, however what the law achieves is only placing a deterrent on the man while the other party to the affair is not brought within the legal restrictions. Hence there neither appears an intelligible differentia nor a nexus with the object to be achieved . That is why the constitutional validity of the act has been questioned, challenging the law as being violative of the fundamental right of equality.

Another similar complaint that has plagued the use of this law is the fact that under this law only the husband of the wife is entitled to prosecute. The wife of the adulterous man cannot use section 497 to bring an action against either her unfaithful husband or the women involved with her husband, while the husband of an adulterous wife can bring an action against the man involved in the affair.

Another malady is that in case the man is married and the woman, with whom he has established adulterous relations, is not in an active wedlock, then in such a case the law may not be used at all. What strikes one as absurd is the fact that the law punishes one and permits another equally unchaste relationship. The wrong that is supposed to be punished is that one should not have relations with someone in an active wedlock. Breaking a matrimonial home is something that should be looked at sternly. Not only does such an act take two people apart but also has everlasting impact on the psyche of the innocent children, if any. Again, the trauma and emotional damage suffered by the wife of an adulterous male is equal to that of the husband of an adulterous woman, yet while the husband has been given the right to bring action upon the man breaking the purity of his home, the wife is denied such a right. Thus the law, in the present state, is defective, either it should not declare the breaking of a matrimonial alliance a crime at all or it must punish all equivalent relationships a crime too. Also neither the aggrieved husband nor wife may initiate proceedings against their irresponsible spouses.

Justifications from the Framers: The framers of the law tried to justify this aberration by relying on the social conditions of India . The framers of the code took the example of countries such as England and France and use them as a yardstick to judge the condition in India. They emphasized that the condition was very different, in India, women were subjugated and exposed to evils such as domestic violence, sati, child marriage and polygamy, to say the least. As an outcome of the social practices and their own position in the society, women in India live in an extreme state of mental stress and neglect. In such a condition it is probable that they stray out of their marital homes in search of love and affection that eludes them at home. Thus pinning criminal charges on them, knowing their station would be, as described by the framers, cruel and heartless. The framers of the code believed that if the women did the deplorable act it was pressured by their social and 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.

Unjustified Justifications: There is no denying the fact that the framers of the law managed to describe the plight of Indian women precisely and accurately. However their emotions should have found vent in an effort to uplift the condition of women not while drafting the law of the land. A crime is crime, to declare one guilty and the other innocent in the same act is leniency and foolhardiness. Other attempts should be made to help women come out from such a pitiable state, but providing a loophole or proving a vent for them to misuse unhindered, should not be a solution. What this laxity means is that women know that they may wander out and they shall be unpunished. Though the intentions of the framers may have been benevolent yet all they managed to do was to provide a safety valve in case of extreme conditions and that is all.

Justification from the Supreme Court: The Supreme Court too has not been silent on the issue. The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. Thus charges are pressed against the outsider who breaks the said sanctity. The woman, in cases of adultery, is considered the victim of a seducer. It appears that the court believes that the man has an unstoppable seductive charm and the woman is helpless against it. The evil that is punished by the law, in the mind of the court, is that of seduction of a woman by another man. According to the court the woman is considered to be the victim. Thus the court held that the law was non discriminatory and not violating the right to equality , thus the court upheld the constitutional validity of the section 497. The court also opined that by not allowing the spouses to prosecute each other the law offers a chance to the spouse to make-up . It is humbly submitted that the court erred in its judgment.

Another Faltering Justification: Of the individuals indulging in an extra marital affair the responsibility of upholding the sanctity of the matrimonial home lies on the married person than an outsider. This responsibility is taken, impliedly, at the time of marriage. Thus it is the philandering wife who bears this responsibility more than anybody else. It is for her to maintain the purity of the relationship. While consenting for an illicit relationship the wife ignores this responsibility and hence she is equally responsible for breaking the matrimonial alliance. The man only provides the lure it is for the woman to be attracted or not. Hence she who shoulders the responsibilities of marriage commits a graver offence than the man who entices her. Thus she should be treated as an abettor under section 497 of the I.P.C. There is no reason for not meting out similar treatment to the wife who has sexual intercourse with anyone else than the husband. Any attempts at reconciliation can be made independently of the proceedings and if the proceedings are successful the charges can be withdrawn.

The Social Transformation: We must keep in mind that these reasons and defenses were given decades ago. The most important factor that has led to the re-ignition of the debate is the drastic change in the social status of women. Women are no longer suppressed or subjugated. The practices of sati, child marriage, polygamy, e.t.c, 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. Almost all professional college has a quota for 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 that women, today, have an edge in the society. All this has resulted in them gaining the power of choice. They can no longer be classified as victims in cases of adultery.
The re-discovery of the Indian sexuality has just begun. Permissiveness is at an all-time high, the statistics tell a completely different tale of the supposedly conservative India. 27% in Bangalore, 28% in Chennai, 22%in Delhi, 32% in Kolkata, 20% in Hyderabad and 24 % of the People in Bombay have no qualms about extra marital affairs. Several sex surveys carried out recently point to a definite resurgence of guilt-free extramarital sex, as much on the initiative of women now as it was on the bidding of men before.

There can be no further ignorance of the fact that our society has changed drastically. Section 497 Of the I.P.C had been drafted in a time and era where conservatism was the norm. It belongs to a past that laid great stress on morals and where sex in itself was a taboo activity. In that era an illicit relationship could not have imagined about and hence it was befitting that adultery was a crime. Today the changed views of the society have started raising questions on the law of adultery.

Proposed Remedies: There is little doubt that the law of adultery is not in consonance with the society and so it must change. There exist to different views here. The recommendations of the 42nd law commission and with the Justice Malimath committee report can be taken into consideration and equality of treatment in the law of adultery between men and women can be introduced. Or the suggestions of the NCW and the Madhav Menon committee and adultery can be converted into a social wrong than a crime.

Weighing The Pros And Cons: In the light of the above reasons it is lucent that there is a need for amendments in the law and it needs to be reconsidered. In pursuance of this two major recommendations have been made. Either the discrepancies in the law should be removed or adultery should be removed from the status of a crime to that of a social evil.

Malimath committee and the 42nd Law commission

have suggested that women should also be made liable for the offense and the law should be made sterner. This would indeed remove the prima facie arbitrary treatment meted out to men and women. Enforcing the suggestions would bring about equality of manner and ultimately the same punishment shall be given for the same act. However there is a darker side to the implementation of this recommendation. We risk making the state a moral watchdog. Morality is a very specific and personal matter. Controlling this through the iron hand of the state would endanger the freedom of personal liberty of the individuals in the state. Moreover the state should not play a role in the private lives of the individuals, those states, such as the Nazi Germany or the communist Russia, that have done this in the past have not fared well. It shall also be prudent to take the social change and the liberated moral standards into account as the sterner law and the criminal status may not be apposite to the contemporary India.

Contrary to the above proposal is the recommendation of the Madhav Menon Committee and that of the National Commission for Women. They have taken the altered social factors into account and on that basis mooted for the removal of adultery from a crime and its conversion into a social wrong. Implementation of this proposal would be in consonance with the social scenario of our country today. The recourse to divorce shall still be available to the aggrieved party as shall be the other recourses in civil law such as damages for mental trauma. The wife who indulges in adultery is not entitled to maintenance . Thus the aggrieved individual can seek redress under other areas of law. Hence converse to popular believes the deterrent shall still exist. Nevertheless removal of adultery from the status of a crime would greatly reduce the deterring effect. Instead of limiting the degeneration of morals and values from the society making adultery a social wrong would unconsciously promote the evil of infidelity.

My Observations: It is indeed apparent that the law as it exists is neither socially apt nor does it stand to the principles of equality. Thus the only certainty is that the law must be revised. But before suggestions of the Madhav Menon Committee and the N.C.W are to be followed the social change, that they make their basis, must be evaluated. After due consideration it appears that there has been a downfall in the morals and virtues of the society. From absolute conservatism the society has progressed to absolute liberty. Imposing no restriction on such a change would be absurd.

Thus I believe that the law of adultery should be made sterner and the prima facie irregularities should be done away with. This shall impose a justified restriction on the adulterous pair and act as a deterrent. Not only does adultery destroy the sanctity and happiness of a matrimonial alliance but it may also have far reaching consequences on the psyche of the innocent children. Thus such a heinous activity should be attempted to be prevented at all costs.

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