Adultery and related issues in criminal law

Adultery means different things in law and English language. In law, it is socially and legally objectionable sexual intercourse, voluntarily made by a man with the wife of another person, with the knowledge that she is a wife and without her husband’s consent or connivance. Therefore, adultery per se is not an offence. But when it is committed without the consent or connivance of the husband it becomes an offence.

Some reports questions its legality

In 1971, the 42nd Report of the Law Commission of India examined various provisions of Indian Penal Code and made significant recommendations. One of them was to remove the exemption provided for women from being prosecuted under the offence of adultery and to reduce the punishment for the offence from 5 years to 2 years.

In 2003, the Committee on Reforms of Criminal Justice System, headed by Justice V. S. Malimath, considered measures for revamping the Criminal Justice System. The report suggested removing the exemption provided for women from being prosecuted for adultery. The report says the object of the provision of adultery in the penal code is to preserve the sanctity of the marriage. The society abhors marital unfaithfulness. Therefore there is no good reason for not providing similar treatment to wife who engages in sexual intercourse with a married man. Therefore the Committee suggests that the Section 497 of the Indian Penal Code (IPC) should be suitably amended to add that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery…….”

Ingredients of adultery

Adultery is a non-cognisable, bailable and compoundable offence, triable by the Magistrate of First Class. It comes under Section 497 of the IPC. The offender can be punished as prescribed under the Section 198 of the Criminal Procedure Code (CrPC).

The Section 497 says that when a man engages in sexual intercourse with another's wife without the husband's "consent or connivance", he is guilty of adultery and shall be punished. The Section 198 (2) entitles only a husband to file a complaint on adultery against the male engaged in adultery but he cannot prosecute his wife for the same offence.  Both sections go hand in glove with each other to deal with adultery which invades the sanctity of matrimonial relations. The provision does not arm both the spouses to fight each other. In essence, adultery becomes an offence only when a man has sexual intercourse with another man’s wife without her husband’s consent.  

Therefore, in order to prove the offence of adultery, as a judgment of the High Court of Kerala in Thomman v Sukumaran (1990 KHC 625) states, the following ingredients must be established:

1. That the accused had sexual intercourse with a woman
2. That such woman was married
3. That the accused knew or had reason to believe it
4. That the intercourse was taken place without the consent or connivance of the husband
5. That the intercourse so held does not amount to rape

The essence of the offence of adultery is the deprivation of the husband’s control over the wife in sexual relation with the outsider. The Section which punishes the male alone, in turn protects the interest of the husband.

Kind of evidence needed

Evidence of sexual intercourse is essential to prove adultery. But the sexual intercourse taken place in utmost privacy can rarely be proved by direct evidence. Therefore adultery can be proved by ocular evidence and corroborative circumstances.  It is impossible for the court to lay down the circumstances and evidence generally required for proving adultery. But evidence must go much beyond generating suspicion in order to convince the court. The circumstances must be convincing to any prudent man to figure out conclusion of the offence.

The husband must prove that the sexual intercourse happened without his consent or connivance. To constitute consent or connivance more than mere negligence by husband is necessary. The facts and circumstances of each case must establish absence of consent or connivance on the part of the husband. Strict proof is not necessary.

In an offence of rape, the conclusion of sexual intercourse cannot be presumed. But in adultery, presumption can be made when evidence points strongly to the inference of guilt. In a charge of adultery, it is not necessary to specify the exact date when the offence was committed. It is enough if the charge specifies the dates between which the offence was committed.

The penal code has no provision for hearing the married woman with whom the accused is alleged to have committed adultery. That does not mean she is not to be heard at all. If she wants to be heard she should receive due consideration in appropriate case. It is part of the principle of natural justice.

Timeline of challenges against the provision

The provision on adultery was challenged before the Supreme Court in the following four important cases:-

1. Yusuf Abdul Aziz v State of Bombay and Another, AIR 1954 SC 321,
2. Sowmithri Vishnu v Union of India AIR 1985 SC 1618 and
3. V. Revathi v Union of India, (1988) 2 (SCC) 72.
4. Joseph Shine v Union of India WP (Crl) No 194 of 2017 

In the case of Yusuf Abdul Aziz v The State of Bombay, a four member bench of the Supreme Court decided that Section 497 of IPC did not violate the right to equality enshrined in Articles 14 and 15 of the Constitution. While Article 14 guarantees individuals equality before the law, the Article 15(3) allows the state to detract from such equal treatment when it comes to making special provisions for women and children. In this case, the provision was upheld on the basis of Article 15(3) of the Constitution.

Another challenge to Section 497 came 30 years later in 1985, in the case of Sowmithri Vishnu v Union of India. The husband of the petitioner had filed a complaint against the alleged adulterer Mr Ebenzer. Then Mrs Sowmithri, the alleged adulteress, approached the Supreme Court and argued that Section 497 violated Article 14 as “by making an irrational classification between man and woman, it unjustifiably denies to women the right which is given to men”. The petitioner added that the Court presumes man is the seducer but not the woman in whatsoever situation. Even an unmarried woman who engages in sexual relation with a husband is ‘an outsider’ for the matrimonial home. Such persons ought to have been included as the persons capable of committing the offence.  But the court does not consider so. The woman cannot be prosecuted because the definition of the offence as of now does not allow so.

In V. Revathi's case in 1985, the Court observed that the Section 497 of the Indian Penal Code (IPC) and Section 198 (1) read with Section 198 (2) of the Criminal Procedure Code (CrPC) go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners in the unit. The law punishes the male 'outsider' who breaks into the matrimonial home and violates the sanctity of the matrimonial tie by forging an illicit relationship with the female spouse. It does not arm the two spouses to hit each other with the weapon of criminal law. Therefore neither the husband can prosecute the wife nor can the wife prosecute the husband, so as to end up in a punishment. The Court finds no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished, but if the outsider is a woman she is excused from punishment. To the court it is a case of reverse discrimination in favour of woman. The law does not envisage the punishment of any spouse at the instance of each other. Therefore no discrimination exists against the woman in the law for not permitting her to prosecute her husband. A husband is not permitted because the law does not treat the wife an offender. The Court says there is no discrimination in entrusting the right to prosecute the adulterer to the husband of the adulteress alone, but excluding the wife of the adulterer.

In Joseph Shine v Union of India, the Supreme Court in its order on 5th January 2018 noted that the provision of adultery seems to be quite archaic in the light of societal progress, shift in gender equality and changes in gender sensitivity, it is quite necessary to refer the larger issue of examining the constitutionality of the provision on adultery to a Constitution Bench.

Unconstitutional nature of the provision

The key argument in the case is that the Section 497 discriminates against men. There is no justification for insulating the woman from punishment when she is a willing participant in the crime of adultery. When the sexual intercourse takes place between two consenting parties, there is absolutely no reason for excluding one party from its liability. The discrimination militates against the scope and nature of Article 14. The Section 497 of the IPC cannot be treated as a beneficial provision that falls within the exemption provided for women under Article 15(3) as well.

The provision indirectly discriminates against women by holding that women are the property of the men. This presumption is manifested by the fact that the adultery engaged with the consent of the husband of the woman ceases to be a punishable offence.

The provision also goes against the ratio laid down in Justice K.S Puttaswamy (Retd.) v Union of India and Ors, which declared sexual privacy an integral part of the fundamental ‘right to privacy’.  The Section 198 (2) of CrPC, which excludes the woman from prosecuting any other woman engaging in adultery, violates the Article 14, 15 and 21 of the Constitution of India.

In a consented sexual intercourse between two equal and similarly situated persons, there is no justification in punishing one party and allowing the other to escape with no punishment. Those who are on similar footings are to be treated alike. Equals should not be treated as unequals.

The purpose of Article 15(3) is to bring in socio-economic equality between men and women and permit reservation and such other welfare. It cannot operate as a licence for exemption in criminal cases. The present view of the court that women are incapable of initiating and committing adultery is irrational and perverse.

The said provisions also cannot be held to be part of a measure of reasonable classification. Exempting women from criminal prosecution for the offence of adultery does not stand the test of reasonable classification. Married women - who are not different from married men for the purpose - cannot be treated as a special class for the purpose of prosecution in the offence of adultery. No special purpose will be achieved by this exemption in legislation.

The section discriminates women

The provisions on adultery are discriminatory against women. A woman cannot prosecute a husband under Section 497 IPC read with 198(2) for adultery.  Therefore, a woman, whose husband is committing adultery, is left with no remedy to file a case against him. The wife of a man committing adultery is also equally helpless to file a case. No justification is there in excluding the woman from filing a case against her husband. She stands in the same footing as that of an aggrieved husband whose wife has committed adultery. Such exclusion is unjust, illegal and arbitrary. It violates the fundamental rights under Article 14, 15 and 21 of the Constitution of India.

A person’s sexual intercourse with a married woman with the consent of her husband is curiously exempted from the provision. The provision indicates that women are the property of their husbands. The provision conceives a master servant relationship between husband and wife and if the consent of the master is taken, the act of intercourse no longer becomes an offence of adultery. The right to engage in sexual intercourse is an integral part of right to life under Article 21 of Constitution of India. Therefore there is no reason to criminalize consensual sexual intercourse between two adults.

In many western countries, adultery is no longer a criminal offence. Many international organizations propounds the abolition of penal laws on adultery.

Conclusion

In general, gender neutrality is the basis of Indian criminal law. But in the provision of adultery gender bias in favour of woman is quite visible even though a woman is equal to a man in every field.

References

1. Yusuf Abdul Aziz v State of Bombay and Another, {AIR 1954 SC 321}
2. Sowmithri Vishnu v Union of India {AIR 1985 SC 1618} 
3. V. Revathi v Union of India, { (1988) 2 (SCC) 72} 
4. Joseph Shine v Union of India {WP (Crl) No 194 of 2017} 
5. Forty-second Report of the Law Commission of India, 1971 at  http://lawcommissionofindia.nic.in/1-50/Report42.pdf
6. The (Malimath) Committee on Reforms of Criminal Justice System, 2003 at https://mha.gov.in/sites/default/files/criminal_justice_system_2.pdf

The author can also be reached at rajankila@hotmail.com