YES | Sudhir Mishra

Critics of Section 497 are those who define morality according to their whims and fancies

Sudhir Mishra

Indian criminal law explicitly criminalises acts that deceive a person. However, it is surprising that the criminalisation of an act that breaches the sanctity of a pure social institution such as marriage, by way of deceit and lies, is facing challenges in the past few decades.

The constitutionality of Section 497 of the Indian Penal Code (IPC) was previously challenged before the Supreme Court in Yusuf Abdul Aziz v. The State of Bombay (1954). A constitutional bench held then that Section 497 did not violate the right to equality as enshrined in Articles 14 and 15 of the Constitution. Sex is a sound classification and although there can be no discrimination on such account, the Constitution itself provides for special provisions with regard to women and children. Thus, Articles 14 and Article 15 read together validate Section 497 of the IPC.

Criminal law everywhere in the world serves as a guardian of the moral principles of society, protecting a society’s historical roots while leading it towards a progressive social order. If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter-narrative would always exist.

Critics of Section 497 allege that the law is sexist in nature, for it only criminalises the conduct of the man while excusing the woman. They say that in making the husband the only person who can prosecute for adultery, the law is founded upon the idea that the status of the wife in a marriage is akin to that of the property of the husband.

Legislative intent

However, the legislative intent behind the enactment of Section 497 is quite different from what is perceived by these critics. In 1847, the Law Commission of India was given the responsibility of drafting a new penal code. The Commission rendered liable only the male offender, keeping in mind “the condition of the women in this country” and the law’s duty to protect it.

While critics of Section 497 argue that the adultery law tries to dictate and intervene in the lives of two consenting adults, they forget how adultery wrecks the life of another. Generally, the people who advocate the decriminalisation of adultery are those who define morality according to their whims and fancies.

The law deters the adulterer

The intention behind criminalising adultery in the present day is to deter the adulterer from committing such a crime again. One may argue that the law has failed to prevent the act of adultery. Such failure cannot be attributed to the law itself but to its enforcement. If such reasoning is to be taken into account, it would apply similarly to laws against rape, murder, trafficking, etc., but we do not talk about decriminalising them, do we? If we were to bring down a single brick, the whole house would collapse.

A welfare-oriented and inclusive country like India, while demanding that a marriage be registered in order to acknowledge and protect the rights of the parties involved, cannot do away with a crime which undermines the same legally recognised institution. Even if the Supreme Court were to decriminalise adultery, it would still remain intact in various personal laws, eventually leading to harrowing inconsistencies.

Need for amendment

There is no denying that there exist ambiguities within Section 497 of the IPC. First, it only regulates the seemingly sordid conduct of the man who commits such a crime, all the while exonerating the voluntary conduct of the wife involved. Second, the benefit of such a law has not been extended to the wife whose husband engages in such an offence with another woman. However, such a plight can be resolved eventually by way of an amendment.

Sudhir Mishra is managing partner in Trust Legal, and advocate, Supreme Court of India

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NO | Talish Ray

Section 497 will have to be struck down to uphold human life and dignity

Talish Ray

Even within the narrow confines of the heteronormative definition of marriage as recognised under Indian law, the provisions of the IPC regarding adultery seem particularly medieval. The Constitution guarantees the fundamental right to equality and that is inconsequential of gender. It also gives right to life and liberty. Life means dignified existence. It has been widely interpreted. From it flow many rights to secure the principle of human dignity.

The law on adultery, as it exists today, prima facie is violative of the fundamental right to equality.

Power equation in marriage

Under Section 497, what stands out is that only a man can prosecute another man for adultery. The power is vested in a husband to control the sexuality of his lawfully wedded wife. Monoandry, therefore, seems the basic premise in the power equation of a marriage. The wife being the sole and exclusive property of a man must be protected from any other man. Her sexuality must be controlled by the husband in order to assert this sole and exclusive claim to her body. A woman cannot bring this particular charge against a man as she is an object of possession in this entire flawed discourse. She has no say not only over her own body but even the body of the man to whom she is legally wedded. This itself is an archaic provision. It reinforces the submissiveness of women within the marriage.

Even the apex court in its recent observation opined that this provision treats women as personal property. It observed that the fulcrum of offence within the Section is destroyed if the husband were to consent to the wife having a relationship with another man. If it is so obviously discriminatory, why does it still exist in the statute book? The answer lies in the overarching patriarchal structure of society and the state. That any woman may choose to have a sexual relationship disregarding the institution of marriage does not lend itself well to patriarchy or our laws. Patriarchy is about controlling the behaviour of women so that they do not demand equality, and sexual equality is a particularly sensitive area. Marriage remains a strong bastion of patriarchy. At its core, marriage builds a power hierarchy that is unequal for women. It isn’t surprising that apologists often quote the argument of the sanctity of marriage to support the criminalisation of adultery. The laws lend themselves well to bring about the submission of women, with the patriarchal structures prevalent in marriage as an institution.

Technology has unleashed a freedom unknown to civilisation ever before. The same technology has also enabled surveillance. The power in the hand of a disgruntled spouse exercised through the might of state machinery is immense and so is its potential for abuse and misuse. How can a society which calls itself civilised use its power and might to enforce a certain notion of puritanical behaviour, which is antithetical to the notion of human rights and dignity?

Right over one’s body

No marriage or alliance can take away one’s right over one’s own body. Therefore, while the law on adultery as it is today in the IPC is discriminatory on the ground of sex, the very existence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity. These issues will therefore remain unaddressed even if the court reads down Section 497 and gives women also the right to send their husbands to court. This Section will have to be struck down to do justice to the very notion of human life and dignity.

Talish Ray is a partner at TRS Law Offices and project director of Girls Gotta Know India, a website offering legal information

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IT’S COMPLICATED | Anand Grover

The premise that the woman is always the victim undermines the notion of women’s agency

Anand Grover

Section 497 provides that if a man (the offender) has sex with the wife of another man without his consent, he is punishable with imprisonment of up to five years. The wife of the other man is not punishable even as an abettor.

History of adultery

The plain reading of it makes it clear that the offence of adultery, as it exists in India today, is premised on the personality of the wife being merged with that of her husband. She has no independent existence in the eyes of law. She is supposed to be the innocent victim and therefore not punishable. It has been justified on the basis of the integrity of marriage as an institution that an adulterous man is supposed to have breached. Thus, it does not apply to an unmarried woman. But it has not always been like that.

Adultery is of ancient vintage. It is found in the Code of Hammurabi, was embraced in the Seventh Commandment, and used by Henry the VIII of England to get rid of his wife, Catherine Howard. Pertinently, historically it had wider application, in that it applied to sex not only between a man (married or unmarried) with a married woman but also between a married man and an unmarried woman. The institution of marriage was considered sacrosanct and a breach actionable. It was cause of annulment and divorce as also punishable with diverse sentences.

In the present form in India, adultery was considered to be appropriate in early independent India by the Second Law Commission and upheld by the Supreme Court in Yusuf Abdul Aziz. The 42nd Report of the Law Commission continued it, though there was a strong dissent by Anna Chandy, 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 woman’s status within marriage.” The Supreme Court again upheld the constitutional validity of the law in Sowmithri Vishnu v. Union of India (1985), where it was held that even though the social scenario may have changed, it is not for the court but for the legislature to decide the policy of law.

Though the Supreme Court has issued notices in the matter recently, it is anybody’s guess what the Supreme Court will decide according to the present notions of a woman’s place in a marriage. Much is dependent on the views of the Bench that hears the matter. Therefore, the legislative route is an option. In any event, this antiquated law has to go completely, whether by a judicial decision or by an amendment by the legislature.

The law should go

First, the very premise is against women’s autonomy and dignity. Second, even if the argument is that marriage as an institution must not be breached, it is not understandable why an unmarried woman having sex with a married man should not be culpable. Third, criminalisation as a rule doesn’t work in practice in altering social behaviour.

That apart, the burden is too heavy in a criminal case for the prosecution to discharge. Also, the criminal justice system in India does not encourage genuine prosecutions. It only targets the most vulnerable — in this case, the woman who would be castigated even though she is not considered to be criminal. The wrong should only be considered to be civil wrong and be the basis of divorce only. It is surprising that the government, which is getting rid of antiquated laws, is not doing anything about the offence of adultery. It is high time that this law is put in the dustbin of history where it belongs.

Anand Grover is a senior advocate in the Supreme Court