ARTICLE: CRITICAL ANALYSIS OF ADULTERY
WHY WOMEN ARE NOT PUNISHED UNDER ADULTERY
Adultery means voluntary sexual intercourse of a married person other than with spouse. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent.
Though the modern trend is to decriminalize adultery, historically, many cultures have regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery. In most cultures both the man and the woman are equally punishable. However, according to ancient Hindu law, in ancient Greece and in Roman law, only the offending female spouse could be killed and men were not heavily punished.
In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC)1860. As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors.
The Reports on Criminal Justice Reforms and the 42nd Report of the Law Commission of India recommended redefining Section 497 to make women also punishable for adultery. The Central Government accordingly has sought the views of all the 30 states in the country regarding the implementation of the said recommendations. This paper attempts to establish the idleness of Section 497 in the light of Personal and Matrimonial laws and changing social conditions subsequently making a case against amending and for completely deleting Section 497 from the IPC
Many cultures have considered adultery to be a very serious crime. Adultery often incurred severe punishment, usually for the woman and sometimes for the man, with penalties including capital punishment, mutilation, or torture. Such punishments have gradually fallen into disfavor, especially in Western countries from the 19th century. In most Western countries, adultery itself is no longer a criminal offense, but may still have legal consequences, particularly in divorce cases.
An analysis of Section 497
Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate.
Why women are not punished for Adultery
The offence of Adultery did not punish women but still existed in the code because at the time the enforced law was enacted polygamy was deep rooted in the society and women shared the attention of their husbands with several other wives and extramarital relations. Women were treated as victims of the offence of adultery as they were often starved of love and affection from their husbands and could easily give in to any person who offered it or even offered to offer it. The provision was therefore made to restrict men from having sexual relations with the wives of other men and at the same time to restrict their extra marital relations to unmarried women alone.
Polygamy in all religions except Muslims, who are legally allowed to have four wives, has ceased to exist and become illegal. Men now have only one wife who has no rivals for her husband’s love and affection. Today, not only a person having two wives can be prosecuted for bigamy but his second marriage is void ab-initio. Unlike the past when it was required to prove that the husband “lived in adultery” to obtain a divorce, even a single instance of sexual intercourse with anyone other than the spouse entitles the other spouse for divorce.
wives are not deprived of their husband’s love and care and spouses can hardly maintain any polygamous or extramarital relations without inviting any legal action. Even the definition of adultery in civil law is much wider in scope than in criminal law. The personal laws, which did not exist in the present form at the time this law was passed, have not only become operational but also given somewhat of a level playing field for both, the husband and the wife. Naturally, these factors have made the then object of Section 497 obsolete.
Merely because we have been able to give women the attention they deserve from their husbands does not mean women are being treated equally in every aspect socially. We live in a society where far from prosecution, even an allegation of a woman’s unfaithfulness is sufficient to reap havoc in her life. In case women are made punishable for adultery Section 497 would become haven for all husbands and in-laws wanting to get rid of their wives and daughter in-laws at the cost the woman’s social status. Once a woman’s reputation is ruined she will become an easy prey for abuse by other men. The Legislature must understand that what is not equal cannot be equalized by changing definitions. Making a provision which makes a woman lose her reputation in Indian society is like killing the soul of the person while keeping only the body alive. In no case should such a murder be allowed.
The object of prosecution for adultery is more often to reach a settlement with the offender at the mercenary level and seldom to send the offender to jail. In fact, this was the very reason why the offence of adultery did not figure in the very first draft. To this extent, the conditions are not appreciably different even today. The existence of Section 497 has no apparent effect on society.
Section 198 in The Code of Criminal Procedure, 1973
Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to.
Make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorized by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf
where the person aggrieved by an offence punishable under 1 section 494 or section 495 of the Indian Penal Code 45 of 1860 is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’ s or mother’ s brother or sister 2 or with the leave of the Court, by any other person related to her by blood, marriage or adoption.
(2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
(3) When in any case falling under clause (a) of the proviso to subsection (1)the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
(4) The authorization referred to in clause (b) of the provision to subsection (1) shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer.
Absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
(5) Any document purporting to be such an authorization and complying with the provisions of sub- section (4), and any document purporting to be a certificate required by that sub- section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code, where such offence consists of sexual intercourse of a man with his own wife, the wife being under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.
(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
Instances of Adultery
(a) Wife had been absenting herself from her house for some times and seen in the company of a stranger to the family of her husband without reasonable explanation or any explanation.
(b) Unrelated person found alone with wife after midnight in her bedroom in actual physical juxtaposition.
(c) Child born beyond the period of twelve months after the cessation of marital consortium between the spouses.
(d) Evidence on post-suit adultery is admissible to prove and explain other evidences.
(e) Admission of adultery by wife through letters.
(f) Testimony of disinterested witnesses to the effect that they had seen the respondent sleeping together with another person in nights is sufficient to prove adultery.
(g) A solitary instance of voluntary sexual intercourse by wife with another person is enough.
(h) Wife left her husband and was living at her parent’s house. The allegation by husband that she became pregnant there without his access to wife. Statement by wife that husband used to visit her parents’ house and stayed overnights and cohabitated with her. Wife failed to examine her parents or any other witness in support of her statement. There was no interference with the decree of divorce granted against the wife.
Instances of No Adultery
(a) The presence of the wife in a restaurant cabin with her blouse and brassiere unhooked and the co-respondent holding her breasts in his hands is not sufficient to prove adultery.
(b) No conclusion of adultery where the wife was found going on the scooter of some other person or talking with someone other than her husband
(c) No corroboration to prove adultery of wife when she remains in a room with door though shut but unbolted at 10 p.m. with another person when the mother of the husband and five grown-up children were present in the house.
(d) Mere fact that some male relation writes letters to a married woman does no necessarily prove that there was illicit relationship between the writer and recipient of the letters.
(e) Wife becoming pregnant after husband had undergone vasectomy operation without proving that the operation was successful, no illicit relationship of wife can be presumed.
(f) Serious doubts may be raised as to the allegation of adultery of wife when the husband makes no such allegation in the notice for divorce prior to the filing of the suit.
(g) Where the husband files the petition for divorce 8 years after he came to know that his wife has committed adultery and has not explained the reason for the inordinate delay alone.
(h) Mere presence of the alleged adulterer in the bedroom of the parties does not constitute an adulterous act.
(i) Masturbation of co-respondent by wife is not adultery.
(j) Allegations of the husband that he saw his wife talking with other persons on three occasions in daytime without any physical contact are not sufficient.
Swati Rai , Amity law school, Noida