Ahilya, a name, according to Hindu mythology, gained attraction due to allegations of extra-marital relationship with Indra. While some of the sources declare her a prey to Indra’s trickery and praise her loyalty to her husband but others condemn her adultery. Whatever may be the truth, the point to be noted is – punishment – the curse by her husband for infidelity to become stone for thousand years and another curse for Indra to lose his testicles.
A pious philosophy, underlying Section 497 IPC of not enabling the spouses to send each other to jail perhaps to save the children from this trauma, might be looking forward to move on now and seems to be stale one. Not because the current challenge in the Supreme Court, but as no such philosophy is shown to have been imbibed in other provisions which are prone to send the husband in jail at the instance of wife.
Before opening the arguments for or against adultery law in India, let us go through some more facts relating to the same context come across in professional capacity. A man came to me to pursue a divorce case against his wife on the ground of adultery. I, as usual, tried to explore the possibilities of settlement. His words, “What if she does it again?” made me speechless. Another man, different words, thereafter, “I cannot work with a fear in my mind of her unchaste behaviour” drove me towards the same sensation. Moreover, a well known murder by K.M. Nanawati in order to take revenge from his wife’s paramour is also an example which reading with the above are sufficient to form a particular image of adultery in one’s mind.
Now coming to the point, a reference may be made to the words of Prof. HLA Hart i.e. “Legal system is a system of social rules” Hence, only the rules which fit in the social framework, can survive. Those which are not socially acceptable have to be discarded. Though theories of reformation and expiation have successfully taken their places in the modern criminal justice system still deterrence is must to maintain an orderly society.
“The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, wife can be subjected to someone else’s desire. That’s not Indian morality.” A recent observation of the Constitutional Bench while hearing a batch of petitions seeking quashing of Section 497 IPC, certainly, seems to be logical, however, smells like the provision is in danger.
Since 1951 (Yusuf Aziz vs State of Bombay) till date, the courts have been in favour of the provision and against the view of inclusion of women within the ambit of the provision. Despite rendering the arguments that the section governing adultery is in contravention of equality clauses of the Indian Constitution, the courts kept on setting the wives apart from the ambit of the law and thereby decided in favour of the provision.
The 42nd Law Commission of India Report (1971) and the Malimath Committee on Criminal Law Reforms (2003) had already recommended to modify the law to the effect that both the erring wife and the paramour be held equally liable for adultery. However, no modification or amendment has been made to this effect till date.
The question that when a paramour of the erring wife can be seen as adulterous, because of the infringement upon the sanctity of the matrimonial home, why a similar reasoning cannot be extended to an unmarried woman who wrecks the sanctity of the matrimonial home, remains unanswered by the courts.
Lord Macaulay may not have included the women within the purview of the provision considering the then social structure and prevalent male dominance. However, the current scenario is totally changed to that extent. Another angle is, by not putting women in an equally culpable position as men, a license is being given to them to commit and abet crime, is also important. Moreover, striking down the provision will further accelerate such immoral act and may cause more heinous incidents like K. M. Nanawati case.
The question is whether the law of adultery be strike down or sustained with certain modifications. If the Section is struck down from the pages of the IPC, it will again pave the way for men as a driving force to indulge in the immoral and illegal act of adultery. Striking down the provision will mean go and seduce the woman you want. The consequence being a ground for divorce only, the people will not hesitate to do so which is otherwise detrimental to the basic tenets of the Indian Culture. Therefore, considering the aforesaid discussion including the ancient Indian History, morality, professional experience, social framework and requisitions of time, change in the law is necessity. A deterrent provision for both erring wife and the paramour is need of the hour in order to maintain the balance in the society. Incorporation of recommendations of the 42nd Law Commission of India Report (1971) and the Malimath Committee on Criminal Law Reforms (2003) will certainly serve the purpose.
While advocating the aforesaid view, touching one more aspect is equally important. One collateral modification in Section 198(2) of CrPC is also required. As per this Section the husband is only “aggrieved party”. In other words, the husband of erring wife is victim of the crime and he is the only person who can prosecute the paramour through a court complaint. However, a woman whose husband has been indulged in adultery should also be termed as “aggrieved party” and then only the even handed justice can be meted out.
(This Article is Written By – Kunal Manav Advocate)