Re-criminalising AdulteryBy Dr. R.K. Nimai
After the five-Judge Constitution Bench of the Supreme Court which on 27th September, 2018 struck down Section 497 of the IPC as unconstitutional in Joseph Shine versus the Union of India, Writ petition (Criminal) No. 194 of 2017; many opined that it will open a flood gate of adulterous affairs which is still frowned upon by the society. Many even opined that the judgement had legalised adultery which is far from the truth as the Court has not legalised adultery as it says that adultery can still be a ground for divorce. The judgement only decriminalises adultery as the existing provision hurts the right to equality and demeans women. The Court restricted itself only on whether Section 497 IPC is constitutional or not. They strictly confined themselves to the interpretation of the extant law and refrained from commenting on whether adultery is good or bad to the society. Thus from 27th September, 2018, there is no Section 497 of the IPC.
The former Section 497 IPC imposes penalty only on the man and treats woman as a commodity which can be clear from the provision:
“497. Adultery- Whosoever 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 the 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 provision indicate that it is not a criminal offence if the husband permits a man to have a sexual relation with his wife as if she is not a human being who can think and decide what is good or bad for her but only as a commodity. It only penalises man even though many acts of adultery are initiated by woman causing many marriages to fail; and in some cases in Manipur, the wife reportedly caused the murder of her husband with the connivance of her paramour.
The attitude of the government in many parts of the globe is totally different towards adultery. In some countries mainly Islamic countries, the woman is stoned to death while the man is generally allowed to go scot free (the whole responsibility is cast on the women in total contrast to what was practiced in India), while in Australia it took a very liberal view that why should the Government intervene on acts committed in privacy by two consulting adults, though there are civil consequences but not criminal. The process in the modern world is to decriminalise adultery and in all the European countries, it has been decriminalised while in USA only 19 states continue to criminalise it despite the fact that very limited cases are registered. In other words, the law is not taken recourse as perhaps it has outlived its purpose. Quite a few Asian countries have decriminalised adultery. Whether to criminalise or decriminalise adultery cannot be left to the judiciary alone but it should be dependent upon whether the society is ready to accept adultery as a matter of fact of life, and can view it as not a criminal act but a civil matter between the husband and wife. With the old law, even if the finger point to the adulteress, she can’t be prosecuted, thus it is legalised discrimination between the genders. It is seen that countries which are developed and the literacy rates of the populace are high move towards decriminalising adultery.
In Manipur and in many parts of the country, many groups are advocating that adultery need to be criminalised to protect marriages and the country is not ready to fully decriminalise it. On the other hand, there are also groups which support decriminalising it and should be seen only as a civil act. On weighing the pros and cons, it is perhaps not too wrong to say that this country is not yet ready to accept adultery not being criminalised as it is mainly in the urban pockets that people clamour for fully decriminalising it though India is still a rural country, where the progress is still slow. If both the partners are on equal footing economically and socially, perhaps it may be decriminalised but as things stand today the time is not yet ripe. Manipur had seen a few murders where it was alleged that it was due to the instigation of the adulteress and such incidents heightened the demand for re-criminalising it. Many argue that criminalising adultery will support, safeguard and protect the institution of marriages and decriminalising it will lead to adulterous relationships having more free play leading to attack on the institution of marriage. We have come out of the belief that marriage is sacrosanct made in heaven and that it is a social contract but as human feelings are involved in the process it just cannot be decided just by pure logic as things stand today.
If one accepts that re-criminalising adultery is necessary for the society in Manipur, should we wait for the Central Government to bring out suitable Bill in the Parliament and argue that as the relevant Acts are Central Acts, we should wait for their decision or for drafting a Bill. It may be remembered that Central Acts are also amenable to State Amendments which can be carried out if the principle of the principle Act is not violated by the amendments. The only point to be noted is that once the Amendment Bill is passed by the Legislative Assembly, the Governor cannot assent to the Bill rather he should reserve it for the President to assent. This has been carried out in a number of cases even in the Criminal Laws in the past, as an example where the period of submission of charge sheets is three months in the Principle Act, in Manipur due to a State Amendment it is six months.
Taking into the concern expressed in the state by various organisations and intellectuals, the state government may consider to bring a state amendment which should be non-discriminatory and would passed the test of judicial scrutiny.
If a new Criminal law Amendment Bill with a clause to re-insert 497 IPC as “497. Adultery - Whoever has sexual intercourse with a person who is and whom he or she knows or has reason to believe to be the spouse of another person, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punishable with imprisonment of either description for a term which may extend to five years, or with fine, or with both” and also amending Section 198 of the CrPC by deleting the word and figure “section 497” in sub-section (2) and after sub-section (2) insert the following “For the purposes of sub-section (1), no person other than the spouse shall be deemed to be aggrieved by any offence punishable under 497 of the said Code”, the desire of a large section of the people of Manipur will be satisfied and perhaps this will be more appropriate for the state rather than totally decriminalising adultery as the society is not yet prepared for it. Such provisions will not hurt the question of discrimination nor treat any gender as inferior and thus shall pass the test of judicial scrutiny.
In fact, in Manipur many women enters into adulterous relations with married man as they know that they can never be penalised legally, except sometimes by social sanctions, which they care a hoot, with a view to become the second wife of the man. Many including our public leaders from almost all walks of life had committed bigamy, which was preceded by adulterous behaviour. If women are also recognised as culprits, the tendency of bigamy may also be curtailed to an extent, which in many cases cause not only private sufferings but also become a public tamasha. The point however, is that neither the state nor any others would be allowed to exploit such incidents and only those who are actually hurt by the incident, that is the spouse should be the only one aggrieved and the law should only be available to them. The trend of many men showing their macho tendency by having illicit affairs with numerous women also need to be curtailed, even though this has the sanction of the society, as all persons need to be treated equally under law as enunciated by Article 14 and the proposed amendment, if the wife is aggrieved and approach the law court, she will have the benefit of the law. But whether our Government will listen as many in the government are bigamous and when they are in an infighting mode is a debatable question. The respected MLA’s main duty is to frame good laws in the interest of the public and not primarily execute contract works must be reminded from time to time.
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