Starting on July 10, the hearings on four important constitutional cases shall begin in the Supreme Court. One of these four, Joseph Shine versus Union of India, pertains to the constitutional validity of the adultery law in India.
In this context, it becomes pertinent to revisit the law and the judicial and legislative engagements with it, in order to comprehend the past anxieties of the court for a better understanding of what we are looking at in the days to come.
The SC will begin hearing the constitutional validity of the adultery law from July 10. (Photo: PTI/File)
Adultery, in plain terms, refers to extra-marital voluntary sexual intercourse. It is recognised as a criminal offence in some nations, a civil wrong in others, and in some nations, it is not recognised as an offence at all. The punishment for adultery as a criminal offence ranges from a mere fine to even capital punishment around the globe. In a few nations, the punishment for adultery can be public whipping or even stoning. As a civil wrong, the most sought-after remedy is a decree of divorce.
In India, however, adultery features in both the criminal law as well as the civil law. The current constitutional challenge pertains to the decriminalisation of this act, enshrined in Section 497 of the Indian Penal Code, which mandates a maximum punishment of five years in prison.
The section of adultery, remarkably, punishes the man who has had consensual sexual intercourse with a married woman, but not the married, unmarried/divorced/widowed woman who has had consensual sexual intercourse with a married man. The underlying reasons are anything but feminist — they are deeply patriarchal, parochial and paternalistic.
The first known case to have highlighted this problem was Yusuf Aziz v. The State of Bombay ( 1951), wherein a petition was laid down before the court that the section governing adultery was in contravention of Articles 14 and 15 ( Equality clauses) of the Constitution of India.
It was argued that by punishing only a man for adultery, the law is discriminating against citizens based on “sex”, covered under Article 15 of the Constitution, and that the fundamental right to equality is being violated as per Article 14. It was also stated that by not putting women in an equally culpable position as men, a licence of sorts was being given to them to commit and abet crime.
The court held that by no means was a licence given to women, but the said section exempted them from culpability as per Article 15 (3) of the Constitution, which reads that nothing in Article 15 shall prevent the state from making “special provisions” for women.
Instead of looking at the institution of marriage itself as a violent, unequal space, the law attempts to repress the fissures that would arise from these inequalities. (Photo: PTI/File)
By declaring Section 497 as a special provision for women, the court threw this debate into a further vortex of controversy. The court in its brief judgment did not delve in to explain as to how this section would serve as a special provision, and gave further scope for questions of discrimination in this ambit.
In Sowmithri Vishnu v Union of India (1958), the court not only reiterated the ratio held in Yusuf Aziz that women cannot be held as adulterous, but went one step further to claim that women could not be brought under the purview of this section as “it is commonly accepted that it is the man who is the seducer, and not the woman.”
It was also propounded by this court that in cases of adultery, the woman is merely the victim of the crime and not the author. Along the same lines, it also stated that women could not be punished as they were vulnerable, and this vulnerability is owed due to the deprivation of love and affection they faced from their husbands, who had a social sanction to be adulterous, which in turn made the wives vulnerable and an easy target to be seduced.
In the next significant case, V Revathy v Union of India (1988), the court had interpreted the reasoning to not include women under the law because it promoted “social good in the society”, as the law gave the couple a chance to “make up” and condone the offence and thereby not bring each other to court. It was also opined by the court that adultery needs to be seen as a "shield rather than a sword".
The 42nd Law Commission of India Report (1971) and the Malimath Committee on Criminal Law Reforms (2003) suggested that the section be amended 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, which is a pressing concern.
Going by the archaic logic of Section 497 and the interpretations accorded thereof, it is pertinent to note that this provision, which punishes the paramour of the adulterous wife as the “outsider” who has caused a blow to the matrimonial home, does not recognise a woman as an “outsider” in a similar sense.
In Sowmithri Visnu, the court had held that to ask unmarried women to be brought under the ambit of this section is a crusade by a woman against a woman. 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 court. This conspicuous silence splits bare the fissure and inherent weakness of the disharmony theory.
The decision to not hold a woman culpable stems from a patriarchal position which delegitimises her sexuality by a careful erasure of it. (Photo: Reuters/File)
Another complexity that arises with the law is who can raise a complaint with regard to adultery. According to Section 198 (1) of the Code of Criminal Procedure, only the “aggrieved party” can bring forth a complaint on cases of adultery. Section 198 (2) clarifies that only the husband of the erring wife is the “aggrieved party” for purposes of Section 198 (1).
This discrepancy had also been brought before the court in Sowmithri Vishnu, wherein the Court opined that women need not be included as an aggrieved party as a form of even-handed justice. It was the view of the court that just like men are not allowed to prosecute their wives in order to protect the sanctity of the matrimonial house; women are not allowed to prosecute their husband, thereby meting out a form of even-handed justice.
By terming only the husband as an “aggrieved party” and by stating that “breaking a matrimonial home is not less serious a crime than breaking open a house”, the court has given the husband a right to the chastity of his wife. Thereby, if such chastity is broken, he becomes aggrieved.
On the question raised by Nalini Chidambaram before the court, that by not including women under the ambit of Section 198(2) of the Code of Criminal Procedure, the law plays the role of a “romantic paternalist”, the court simply claims that this argument has an emotive appeal but no legal basis.
The Indian Penal Code is recognised as the principle penal law in India. The first draft of the Indian Penal Code did not consist of a provision for adultery, and Lord Macaulay noted that considering the vast cultural diversity in India clubbed with the progressive nature of social sanctioning, there was no need for a section on adultery in the IPC and it was better off treated as a civil injury.
A revolting logic that is widespread in most justifications of the court, as aforementioned, is that only the man can be seen as capable of seduction and having an active sexual intention. This begs the question whether the court, de facto, does not recognise the sexuality and sexual activity of a woman.
On a close analysis of this bunch of cases and the reasoning it entails, it is manifestly clear that the decision to exclude women from culpability stems from a bizarre patriarchal position which delegitimises the sexuality of women by careful erasure of it.
It is not untrue that women were at a sexual disadvantage and vulnerable and deprived of love and affection at some point of time in Indian history given the skewed acceptable behavioural patterns, something which arguably exists widely even today in many contexts.
But instead of looking at the institution of marriage itself as a violent space that percolates inequality, the court and the law attempt to repress the obvious fissures that would arise as resentment from these inequalities.
Ultimately, the law’s emphasis on criminalising adultery, and the court’s desperate attempt to justify it, with such stark inequalities, comes from the drive to maintain a clean chit to the institution of marriage and not directly engage with the structural flaws that it entails.
Of course, it might be far-fetched to expect the technocratic court to engage with these questions, but it does behove the interested reader to read into what is deliberately left unsaid.
Questions that must necessarily be asked are: why is it a pattern for women to feel vulnerable and disadvantaged in marriages? Are these only exceptional scenarios or has it gained a normative social nod? Why have Indian courts not engaged with this question directly even when they go close to accepting this with regard to adultery?
By giving unbalanced, unequal positions with regard to adultery, is the court, and by extension the law, trying to actively repress the fissures emanating from marriage? Can the court reconcile these inequalities without engaging with the aforementioned questions? Will that lead to further repression of the fissures?
It is in this context that the upcoming hearings will be interesting — to see if there is a normative shift in the pattern of the court’s engagement with these questions, whatever the constitutional validity of Section 497 is held as.
It is in this context as well that the reader must not just look at what it being said, but also look at everything that is left unsaid, for that reveals the anxieties of the court, and of the law.
Also read: Why the court is right in asking if men should pay compensation when a live-in relationship breaks up