Annihilating an archaic law

Crimes are created by law and committed by the people. The law also prescribes punishments for the crimes including imprisonment to disable the culprit from repeating the crime.

In the case of Section 497 of the Indian Penal Code, the main observation of the learned Chief Justice is that adultery shall not be treated as a crime at all as “it does not fit into the concept of a crime.” Perhaps the contention is that a crime must be considered to have been committed against somebody or interests of some organization. In the case of adultery, the consent of both the parties is involved. Then who could be called the victim is doubtful. If a victim is necessary, it could be only the husband. But he is a stranger to the offence. He cannot claim any loss unless the law accepts his wife as his own, a part of his property subject to be enjoyed by himself exclusively. That makes the wife a commodity of the husband and that is exactly what the court wanted to forbid.  They wanted to resurrect the individuality of the wife which has been destroyed by section 497 of the Indian Penal Code. 

The section runs as follows:

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 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.

The section did not say who has the right to make a complaint. The wife is a party to the offence cannot be expected to complaint. It is obvious that it is the husband only that has a ground to object. It is common knowledge that the husband has an exclusive interest in and right over the sexuality of the wife according to the prevailing notions. He gets the right only because adultery is considered a crime under section 497. If nobody is affected adultery cannot be considered a crime. By decriminalizing adultery, which was considered quite reasonable and legal, the court solved the problem of Sn.497.  That naturally results in removing the section from the Code.

In fact, the petition was against the discrimination encoded in Sn.497. The discrimination lies in not giving the same rights to the wife as given to the husband. Nobody had an objection for the husband is given the right to prosecute the adulterer, an outsider, leaving the wife unaffected. The section ignored the fact that the husband also can commit adultery with another woman and the wife is not given a similar right to the wife to prosecute the adulterer woman. Perhaps the petitioner would have been satisfied by giving such a right to the wife. But the courts do not have the right to create rights that are not contemplated in law. They can only strike down any unlawful provision in law but cannot introduce any lawful provision of their choice. That is the business of Parliament. It is possible for the court to pick up some wording in the section and try to interpret it and analyze to give the meaning they intend as happened in the case of Art.124 of the constitution. But such a possibility was not found in this case. So the section was struck down as a whole. The learned Chief Justice was also of the view that considering adultery a crime leads to intrusion of law into the sacred privacy of marital relations which is not desirable.

But Hon’ble Justice Chandrachud has gone to an extreme level stating that “by marrying she has not consented to refrain from relations outside marriage without the permission of the husband” (as reported in the press.) This is obviously in complete contradiction of factual position. The very basis of marriage under any law is that both the parties agree to be faithful to each other. In fact, that faith was extended to every aspect of life in earlier days. But in modern times it is confined to sexual aspects in every society. Even in the most liberal western societies, where promiscuous life is not a taboo, keeping that faith after marriage is considered very essential. Other aspects of life like economic, social and political, are allowed free from any obligation and left to the free will and discretion of the individuals. That is why we find the spouses spending money on relatives (like parents) when they feel necessary, have social contacts and friendships and also affiliate with any political party of their choice. We find many families where husband and wife get affiliated to different political parties. In fact, there are relationships across different religions and castes. Both the Hindu Marriages Act and Special Marriages Act specifically states that if the spouse “had voluntary sexual intercourse with any person other than the spouse” it could be ground for divorce. Thus it is clear that the law demands both the spouses to be loyal and faithful to each other as far as sexual aspirations are concerned. It is not only the husband that owns the sexuality of the wife. It is also the wife that owns the sexuality of the husband. It is reciprocal. It is surprising that the learned justice states that “a husband is not the owner of his wife’s sexuality.” In fact, if there is anything which the husband gets from the wife and the wife gets from the husband, legally and exclusively, it is only the sexuality. In all other aspects, the spouses are considered free to have their own choices for their own happiness. To demand loyalty in any other aspect is considered violence and forbidden by law. It amounts to the invasion of individuality and violation of individual privacy which is different from marriage privacy. It appears that the usage of specific words like individuality and freedom was avoided. Instead, the words autonomy and identity were used. By asserting that a married woman can make her own sexual choice, the Hon’ble Justice has upset the apple cart of marriage. Is the country prepared for its consequences?

In their Declaration of Independence, the American leaders have asserted that pursuit of happiness is an unalienable human right on par with life and liberty. But we do not find any such concession in the constitution of India, either in the Preamble or in Directive Principles or in Fundamental Rights. The government of Bhutan has adopted the measure of happiness of people in general as a criterion for development.

Section 497 is questioned mainly because of its extreme form of discrimination against women. Refraining from external sexual relations is a mutual obligation of the spouses. This is called ownership of sexuality. But the ownership is given to the husband by section 497 but not to the wife. That is the discrimination. This ownership is not something that can be delegated or bartered. The 497 did exactly the same by introducing a provision that adultery is not a crime if it is committed “with consent or connivance” of the husband. It is one of the most obnoxious provisions of law that could ever be found. It is not clear how the section was upheld earlier by the Hon’ble Court in toto and allowed to stay on the statute book until a Non-Resident Indian questions it.

The right to seek divorce on the ground of infidelity is not anything new sanctioned by the present judgement. It is already there in the Marriages Acts. Section 497 only states that adultery is a punishable crime but silent on who could make the complaint. By bestowing the right on the husband to give (prior) consent it is implied that he can have discretion even not to prosecute the adulterer. But the right to prosecute is against the adulterer, an outsider, but not against the wife even as an abettor. All this is excused on the presumption that the wife is in a helpless position in society. Justice does not allow treatment of woman (wife) as a commodity (of husband or of anybody). The law insists that she shall be treated with dignity as an individual. That is what it should be. With that status, what could be her role in the case of adultery? Does she take an active part or only a passive victim? It is implied that the adulterer has tempted (or seduced) her to have illegal relations with him.

The next section 498 refers to enticing and not to seduce. Enticing is defined as “taking away any woman…..from the man….with intent that she may have illicit intercourse…” Seducing as per dictionary refers to “tempt immorally into sexual intercourse.” Whatever words are used in the two sections the ultimate motive is “illicit sexual intercourse”. Adultery can be committed either in the house or outside. Whether it is the result of seducing or enticing makes no difference. (Sedition is different from seducing. It is a different offence.) In both cases, the woman is supposed to be a passive partner. But it cannot be ignored that the woman in modern conditions can also be an active partner and the law has to provide for meeting that situation as well. If the intention is to give the same rights to the wife as given to the husband, it follows that she would be made to bear a similar responsibility subject to facts of each case. It needs a law afresh which parliament only could do. There is no (ambiguous) wording in section 497 (like ‘consult’  in the case of Art.124 of the constitution) to facilitate the exercise of the right to invent a doctrine to interpret, analyze and extend the rights to unintended persons. The only alternative was to strike down the entire section 497 leaving a vacuum on how to treat adultery in law. The judgment specifically stated that no effort shall be made to revive the criminal nature of adultery.

Having declared specifically that adultery is not a crime, the husband is deprived of the right to prosecute the adulterer and the wife is also left free from harassment. The only right made available to the husband is to go for divorce, a right which is available under the Marriages Acts. Under section 497 the wife is not deprived of ownership of her sexuality as alleged. On the other hand, it is protected by suggesting ‘no action’ against her. But she is deprived of her right to protect conjugal rights against the husband. The section did not maintain a balance between the two spouses in regard to rights and opportunities granted. That forms its nemesis.


Jawaharlal Jasthi 
on 11 October 2018
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