ADULTERY: AN ARCHAIC CRIME


“Autonomy is intrinsic in dignified human existence and section 497 denudes women from making choices and held adultery as a relic of past” [1]
Justice Chandrachud
Section 497 of the Indian Penal Code, 1860 is no more. Quite striking to see the section being struck or more emphatically scrape out from the act. One of the archaic that was being prevalent even-though it had been done away with by our then beloved masters, British. However, there are countries like Pakistan, South Korea, Taiwan which still criminalize adultery. Feminism is at rising where women have started to be vocal following the #MeToo mishap for some people for sure which stormed the whole world where women have confessed the sexual abuse being done onto them. However, while these confessions were airing in the western world, the Indian judiciary was planning something extraordinary yet manifestly late to do away with the archaic law. Many have welcomed however it had scum with some opposition.

Gender Equality
The matter came before the court comprising of a five-judge bench which included the then chief justice of India Deepak Mishra, Justice R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra where the petitioner demanded making the law gender-equal. The matter came to the court in 1958, 1985 and 1988 but the Apex Court called it constitutional or women not to be included as a party, etc. however things have changed. The court called the law as archaic. Since the law was there from 1860 where the status of women was quite pathetic. Women were only depicted as the mural of family values. Now being the progressive society, women are considered equal to men and she is excelling in every field. Section 497 of the Indian Penal Code, 1860 (Act 45 of 1860) reads “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 the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offense 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 a case, the wife shall not be punishable as an abettor.” “Thus adultery is an offense committed by a man against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow, or even with a married woman whose husband consents to it or with his connivance.” [2]
The provision had defeated the two major perspectives of gender equality: from the men's side, it was advocated that only men were held liable for punishment whereas women were let free thus violating Art. 14 the constitution of India, 1950 since in the act there is the involvement of both men as well as the women equally. Moreover, the status of a woman has changed drastically from 1860 to 2018. She is now equally partner in crime. From the women's side, the Hon’ble Court advocated that it was against Art. 21 of the constitution of India, 1950 as women is not a chattel where the consent of the husband is needed.  As a result, the consent or willingness of the woman is no excuse for the crime of adultery.[3] She is independent self-sufficient no one can be the master including her own husband. Being a woman is something to celebrate and embrace oneself and not to shackle oneself in chains of depression blaming the almighty for the creation. It could be seen that the provision tilted on neither of the genders rather it was an unbalance provision that was languishing inside the pages of the penal code invisibly without causing any discomfort to the Hon’ble Bench. 

Is Marriage at Stake?
“Adultery might not be cause of unhappy marriage, it could be the result of an unhappy marriage” [4] well that sums up all. 
Many women spirited NGOs and housewives questioned the very judgment as being given green signals to all Casanova husbands and hence the very institution of marriage is at stake. However, judgment paved a middle path where adultery is still regarded as one of the grounds for Divorce as mentioned in section 13 of the Hindu Marriage Act, 1955 (Act 25 of 1955) or if it becomes the case of section 306 of the Indian Penal Code, 1860 (Act 45 of 1860).  Marriage was never at stake because of adultery. Adultery happens because there was no scope in marriage, one is not happy with the marriage but s/he is forced to live together for the sake of family, society, etc. It can be said there is no spark left. It is passionless.
The very provision is quite misunderstood by those who are not at the neck with the judiciary. For them adultery just meant cheating with the spouse having extra-marital affairs. Well, the provision tells more then what it is understood in common parlance. One of the examples can be deducted from the celebrated case of KM Nanavati [5] which was popularised by film adaptation among the general masses as Rustom. In the movie, the loneliness and emotionally unbalance side of a wife has been shown which drives her to commit the very act of adultery and as a result, her husband got in pretty serious trouble. It can be seen that due to the weak pillars of marriage it led her to take such a step. So adultery was never a punishment. It can be said it was the consequence of failed marriage and not the cause of it.
It is true to say that every mind is a room full of archaic furniture but at some point in time, it needs a renovation that is much needed in the provision of the existing law. The penal law dates back to 1860 where scenario, situation, rulers were quite different. Now India is a sovereign republic state which advocates equality. Women are no longer considered only the symbol of beauty, she is smart, independent and master of her own or more precisely mistress of her own. The provision has survived to remain in the act for more than a century which is quite commendable but it is never too late to rectify the mistake done on a positive note. The judgment opened the gate for removing many out-dated laws which are of no use but still untouched. Adultery is the remnant of the past which invites unequal treatment of women which is unconstitutional. Marriage is sacramental and removing the provision will not affect the very sacramental institution. Adultery was the result of insufficient love and affection in marriage. Hence it was never a crime!!!

References
[1]  “Husband is not the master of a woman” – Top quotes from Supreme Court judgment on adultery law, Available Here
[2] K.D. Gaur, Textbook on Indian Penal Code, 843(LexisNexis, Haryana, 5th edn, 2014).
[3] Gul Mohammad v. Emperor (AIR 1947 Nag 121).
[4] CJI Deepak Mishra and J. Khanwilkar, Adultery law deprives women of dignity, has to go: Supreme Court in a unanimous verdict, Available Here 
[5] K. M. Nanavati vs. State of Maharashtra (AIR 1962 SC 605).

5 comments:

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