PAST, PRESENT AND FUTURE
Indian Penal Code (criminal code) was enacted in 1860 but came into effect from 1862, under the Chairmanship of Lord Macaulay, who systematically planned to thwart our culture, religious belief, education, way of life by making our people to think, talk, live the English way. This Act was in tandem with British Laws. As time evolved, the law makers of India have amended, repealed laws to suit our Indian scenario and demands.
One such section, is Section 497 of the Indian Penal Code, where the adultery law states, “If a man has sexual intercourse with a married woman without her husband’s consent, he is punishable by law”. The man could be imprisoned for five years or more and even pay fine. Adultery means “Voluntary sexual intercourse between a married person and a person who is not their spouse”. Here the point to be taken into consideration is, only married men were punished immaterial of the fact whether the other consenting party (not their spouse) was married or not, that is when a married woman had extra marital affair with another man who was not her husband was not punished. There were three times where the Adultery Law came up in Indian Courts, these judgements were passed on Adultery, they were in 1954, 1985 and 1988. In the year 1954, the SC rejected that Section 497 violated the right to equality. In 1985, it said that woman didn’t need to be included in the law as a party which can make complaints. That is, this Adultery Law deprived married women to make complaints, when her husband has illicit relationship, she cannot make a complaint against her husband as she is a concerned party and the complaint will never be accepted. In the year 1988 the SC said that the Adultery Law was a “shield rather than a sword”.
PRESENT AND FUTURE
On September 27th, in the sitting bench of CJI Sri Dipak Mishra, other justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra at SC this matter came for hearing by a petition which stated the following reasons why this Law should be struck down. The petitioners wanted the Adultery Law to be made GENDER NEUTRAL, that is a man is punished for adultery but no action is suggested for an adulteress. No married woman can make a complaint against her adulterer husband, as the law had not made any provision for her. Moreover, it was felt that Adultery Law reduced women to an object because no consent of the married woman is required for a man to have sexual intercourse with her. At the same time as per Section 497, if the woman’s husband agrees (consensual), the act is not a crime, the question is which man or woman would agree for their spouses to have extra marital affairs overtly, unless it is done clandestinely. This was the reason why this Law was called ANTI-WOMEN LAW.
The findings of the SC that day was, Section 497, was archaic and violated Article 14 “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” and Article 21 “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law” of the Indian Constitution. It was felt, unconstitutional as it violated the right to equality and should not be continued any further.
The Justices said “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence as earlier thought of to be”. However, the SC held that adultery still will remain a ground for divorce. Justice Chandrachud said that “Section 497 destroys and deprives women of dignity. CJI Mishra and Justice Khanwilkar opined that “Women must be treated with equality with men. Any discrimination to this effect shall invite wrath of Constitution and a woman cannot be made to think the way society wants her to, moreover he added that the husband is not the master of the wife”. With these, they scrapped and struck down Section 497 of the IPC that dealt with the adultery Laws, overturning three previous rulings which had stated that the Adultery Law was Constitutional.
The major impact of this decriminalising Section 497, has already seen an incident in Chennai very recently, where a watchman of a park with TB ailing wife and a small child, married for three years, didn’t support his family, because he had illicit relationship with another woman. When the wife objected he just said “even Supreme Court has given a judgement that Adultery is not a crime anymore”. The same night the wife committed suicide and the husband was held for abetting a crime. Why hadn’t the SC thought of punishing married women who indulged in adultery as men do, instead of decriminalising the law because it didn’t punish women, men shouldn’t be punished, but can get divorce. This sends wrong signals to the society where, when a man goes wayward the family will be in tact because the women of such households are strong enough to bring up the children and hold family together. But what happens to those families where women go wayward? And it’s not a crime anymore. Hadn’t the judges thought of the aftermath impact of such decriminalisations? That is More divorces.
The writer is an advocate based at Chennai.