Dissection of the Crime of Adultery: Quash or Amend?

Adultery refers to a voluntary sexual intercourse between a married person and a person who is not their spouse. In India, this act is considered a crime in which a man engages with the wife of another in such sexual activity. The provision of adultery as a crime has been quite a controversial issue in the last few years and it has come up again in the face of an affidavit filed by the Centre on July 11, 2018, against any change in the existing law on adultery.The offence of adultery has been explained under Sec 497 of the Indian Penal Code as-

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 offence of rape, is guilty of the offence 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 case, the wife shall not be punishable as an abettor.

I would like to discuss the evolution of such law into the Indian laws and the recommendations given by the Malimath Committee and the Law Commission at the first place and would then analyze the current status of the law with the deserved criticisms and suggestions.

Initial Draft by Lord Macaulay

The provision of adultery was not included in the first draft of the Indian Penal Code prepared by Lord Macaulay who reasoned such exclusion by saying that the husband wouldn’t come to the court if his honor is too hurt by such act of adultery or if his honor is not a concern, he would be satisfied by pecuniary compensation in that respect. So, in his opinion, it would have been sufficient to keep adultery as a civil injury. This has been taken from the Law Commission of India's 42nd Report in 1971.

Law Commission’s Recommendation

At that time Law Commission was of an opposing opinion that it should be kept as a crime in which both the sexes are put on trial and empowering the court to give a decree of divorce against the woman indulging in such adultery. Despite this, none of the views was completely accepted and adultery was incorporated in the form of the present section of the penal code. This was also explained in the 42nd Report of the LCI.

Malimath Committee Report, 2003

The Report of the Committee on Reforms of Criminal Justice System observed: “ the object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).” So, the report recommended that there is no need to quash the existing provision of adultery; rather, it should be amended so as to confer liability upon women as well.

Present Provision

Adultery was made a crime to protect the sanctity of a marital bond and to preserve the pure bond of marriage. The current status of the crime of adultery is that it confers liability only on the man so involved in the sexual act and the woman is absolved from any kind of liability. Also, Section 198(1) read with Section 198(2) of the Criminal Procedure Code, 1973 provides that only the husband of the woman engaging in the activity can bring the case to the court i.e. only he is aggrieved in a case of adultery. Moreover, if such the act of adultery is performed by the consent or connivance of the husband of the woman, then such an act would not amount to the crime of adultery.

Firstly, the current provision allows the sexual intercourse between a married man and an unmarried woman and an unmarried man and an unmarried woman. It only restricts the sexual intercourse carried out between a man (irrespective of the fact that he is married or not) and a married woman. In all of the aforementioned cases (adulterous acts between a married man and an unmarried woman or between an unmarried man and unmarried woman), the sanctity of a marital bond is not affected as per the jurists since they are not included in the laws.

Secondly, the law in the present form prescribes a punishment only for the man (other than the spouse) involved in an adulterous act and not the woman. The reason behind this discriminatory provision was provided by the court in the case of Sowmithri Vishnu v. Union of India (1985) Supp. SCC 137 which ran as: “it is commonly accepted that it is the man who is the seducer and not the woman,” and that “the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.” This explanation does not hold true in the present scenario and times have changed drastically. The rate of infidelity on the side of the woman has also been rising and that the difference in such rates between men and women has been increasingly decreasing.[Bahareh Zare, Review of studies on infidelity, IPEDR vol.19, 2011.]  It cannot be said that women cannot be the abettors or the inducers. Such punishment should also be extended so as to make the wife liable too. In the case of Yusuf Abdul Aziz v. the State of Bombay, 1951 (53) Bom LR 736, it was pleaded that such a provision is a violation of Article 14, but the court denied it by saying that such provision could be made under Article 15(3). The provision under Article 15(3) should be made for upliftment or betterment of the women or child but by making a provision like this, the laws are letting loose female offenders.

Thirdly, the consent of the husband to the man who engages in sexual intercourse with his wife makes the whole act legal. This makes a woman a property/chattel of the husband. This kind of notion was put forward in the case of Sowmithri Vishnu but the court was not moved by any such arguments. It is true that this provision subjects the protection and security to the wish and will of the husband.

Fourthly, the provisions under Section 198 of CrPC deprives the woman from any kind of suing right which could come in use in case of an infidelity on the part of the husband. This lacuna allows the husband to engage into extra-marital relations since the right to be aggrieved is also with the husband of the wife and not the wife.

Quashing the Provision of Adultery

The provision of adultery needs to be quashed by the court of law since it is not serving the purpose that it should have been. Instead, it is providing an opportunity to engage in extra-marital affairs as has already been deliberated. Furthermore, engaging in sexual relations with any person is absolutely one’s personal choice and where does the law get the power to decide this? If any such problem arises between spouses, then they can take a divorce and be separated. In the end, it is a case of infidelity.

If at all, the provision is not quashed by the court of law, then a direction for amendment should definitely be decreed and such amendment should confer liability upon both the man (other than the spouse) and the wife of the husband. Moreover, an amendment should also be made in Section 198 of CrPC that would allow the women to sue the husband in the case of an adulterous act committed by the husband.