Very recently, an Indian national Josef Shine living in Italy filed a petition before the Supreme Court challenging the legality of 497 of the Indian Penal Code. The petitioner urged before the court that with the passage of time in our fast changing society, such a provision in the penal code has become obsolete and is an anachronism. This requires a review and fresh look.
The petitioner also told the court that the penal law was drafted during the British Raj and such a colonial law now does not suit the changing life style of the Indian society. The petition of Josef was admitted by the apex court and a notice was issued to the Union Government to file rejoinder in the matter. The court while issuing notice made it clear that the penal provision of ‘adultery’ in Section – 497 of IPC has become old and archaic and requires a rethinking for its continuance in the penal statute.
In this backdrop, the view taken by the apex court was widely discussed both in print and electronic media. It is worthwhile to mention that Section – 497 of IPC provides that if a man with his full knowledge and knowing that a woman is married and is the wife of another man, commits sexual co-habitation with her without the consent or connivance of her husband, even though such a person is not guilty of commission of rape, he is guilty of ‘adultery’ which is a criminal offence visited with punishment of imprisonment up to 5 years or fine or with both.
It is strange but true that the person concerned guilty of commission of adultery is punished in accordance with law but the concerned married woman, who indulged in sexual acts having her consent, is not penalized and she goes scot – free. Significantly, our Constitution guarantees equal rights of both men and woman. Article – 14 speaks in laudable terms regarding equality before law and equal protection to the laws.
Therefore, rule of law expressly forbids discrimination in any form. In that view of the matter, Section – 497 of IPC when squarely indicts of adultery committed by the man alone, not the married woman with whom he had sexual intercourse, palpable injustice is meted out to the concerned male partner.
In this context, it may be mentioned that 157 years back during British India, the penal laws like Code of Criminal Procedure, Indian Penal Code and Indian Evidence Act were drafted by lord Maculay and his team of legal draftsmen for administration of criminal justice system in India.
The penal laws were prepared taking into consideration the contemporary conservative life style, manner, habits and customs of Indian society. Therefore, the question is in our fast changing society now whether Section – 497 IPC requires a review regarding punishment prescribed only for the concerned person guilty of ‘adultery’ or whether the married woman who is a consenting party to the sexual act is equally liable to the punished. The matter is now before the apex court awaiting a verdict which will go a long way to settle the law.
It is striking to note that a woman partner to sexual act with the concerned person, to bring home the charge of adultery against him, she will not be even held as an abettor. Peculiarly enough, law gives protection to the woman partner even though she is a consenting party to the sexual act.
It is worthy of mention that the law Commission of India had earlier observed in their reports that in the contemporary Indian society, married women had to pass through many hurdles in life and both at physical and mental level, women are not strong enough to face the ordeals of life.
Therefore, even though in sexual cohabitation with another man, a married woman is a consenting partner, he is not guilty of adultery and the concerned male partner is alone guilty of such crime. This has been accepted by our society that a man always lures or entices a married woman to indulge in sexual cohabitation.
It is heartening to note that way back in the year 1951, Chief Justice of Bombay High Court MC Chagla in the case of Isuf Abdul Ajij, while examining the propriety of Section – 497 of IPC, ruled that such a provision in IPC is not unconstitutional.
The ruling of the Bombay High Court was confirmed by the Supreme Court in the year 1954. The position of law was set at rest by the apex court in the case of Soumitri Vishnu and Veer Revati. As a matter of fact, earlier the Supreme Court had also examined the legality of the penal provision of ‘adultery’ in the year 1954, 1985 and 1988. In this context, the law Commission of India had also observed that in our country the woman are different both physically and mentally in relation to woman in England and France. In England, adultery is not a criminal offence and the husband of the married woman who was involved in sexual act with another man can file only a suit for damages under law of Tort.
However, the decision of the Supreme Court and the reports of the law Commissions would reveal that it is always the man who lures or entices a married woman to satisfy his sexual desire. Therefore, the concerned married woman in such sexual act cannot be held in the charge of adultery.
It is needful to mention that Section – 497 is not a cognizable offence and police cannot arrest the offender without warrant and order of a magistrate. Therefore, this being the legal position, the gravity of the offence can be easily understood.
Concluding, the view taken by the Supreme Court recently regarding the propriety of Section – 497 of IPC is a welcome step. Therefore, the review of such a penal provision in days to come by the apex court would decide the crucial issue of joint liability of both man and woman partner in the commission of adultery.
(The writer is an ex-CBI Judge, who lives in Bhubaneswar)