Criminal Law

Analysing the archaic laws for Adultery

 

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WRITTEN BY- Richa Shukla

 Introduction:

By reconsidering constitutional validity of section 497 IPC generally read with section 198 CrPC , the Supreme Court has proffer yet another example that laws must go harmoniously with the current moment. Codes and law formulated in the nineteenth century have to be amended with the present age. While section 497 IPC provides for prosecution of the man in an adulterous relationship with a married woman and lets off the woman who is otherwise an equal participant in the extra-marital relationship, section 198 of CrPC allows the aggrieved husband of the married woman in adulterous relationship to file a complaint and not to the aggrieved wife of the man in adulterous relationship.

Gender discriminatory nature of section 497 IPC:

The Supreme Court in the recent petition by Mr. Joseph Shine said that “A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring.”  Why only men are culprit when there is equal participation of woman in the case of adultery, is a question to think upon. The point that man is being considered the offender while the equally guilty woman is surmised to be the victim for the reason that she is a woman seems purportless and obsolete.

Article 15(3) of Constitution of India is often proposed as a rebuttal, according to which the state shall not be prevented from making any kind of special provision for women; a deeper analysis serves us with the objective of the framers. The reference was to those provisions which shall uplift the status of the women in the society and improve her condition or promote reservation to strengthen her in male dominating society. It could definitely not mean to formulate a device for getting away from being punished when the guilt is of same amount as that of a man.

Empowering women?

Howsoever tricky it may sound, but the fact of the matter is that section 497 IPC read with Section 198 CrPC provides only the husbands the right to initiate a case against the adulterer of her wife. The wife has no such right as remedy if her husband commits adultery with either a married adultery woman or an unmarried girl. Empowering women seems illusionary.

Another point to ponder is the gender discriminatory nature not facilitating women empowerment. Further, not punishing wife cannot be expected to result into peace and harmony between her and her husband, thus the conflict remains in disguise.

Shunning the wife perspective

 Where parliament have legislated almost half a century statute to dignify women, ‘Sec 497 IPC creates a dent in the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. This tantamount to subordination of a woman where the Constitution confers (women) equal status’, as declared by Supreme Court on Friday.

The patronizing language of Sec 497 IPC dismantles the very objective since the “fulcrum of the offence is destroyed” once the consent or the connivance of the husband is established.

Besides this, does having an intercourse with an unmarried woman or a widow makes him less guilty of breaching his wife’s trust? Another loophole which stays untended.

Is criminalising adultery appropriate?:

 Let us examine the reasons which resulted into the section not finding a place in the initial draft of IPC by Macaulay on the advice of three presidencies.

Marriage involves two persons and at most two families and the state does well to stay out of it unless either of the parties approaches it for the reasons of domestic or dowry violence or for civil remedies like mediation, divorce and maintenance. Adultery is at best a violation of the terms of agreement between a married couple. Hindu marriage act 1956, provides the remedy of judicial separation and divorce when the wife or husband is involved in adulterous act. Giving them the option of pursuing criminal proceedings is uncivil and any catharsis for the wronged party is illusory. Imprisoning for 5 years for a moral defect moulded as a criminal act is not only barbaric, it’s rather a penance to the family and children who suffer the loss and face social stigma.

Conclusion:

While we wait for the justification from central government, counting lacunae is just an attempt to fathom out the issue. Rather than split hairs over making it gender just, it is time to be one with western countries and reckon scrapping adultery from Indian Penal Code.

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