Report No. 42
II. Amendment of section 497
I regret that I find myself unable to agree with my learned colleagues on their recommendation regarding the amendment of section 497. This section which punishes the offence of adultery is a part of Chapter XX of the Indian Penal Code dealing with offences relating to marriage.
Generally speaking the whole chapter is based on the postulate that the wife is the property of the husband and the wife has no corresponding rights in relation to her husband. Any transgression by or relating to the wife is to be punished, while the law is silent on similar misdeeds by or relating to the husband.
This postulate is nothing peculiar to India or to the Indian Penal Code. Most countries in the world had, at some time or other, laws relating to property, succession, polygamy and other material offences, which were quite frankly biased in favour of the male. This however is no longer very prevalent. Most advanced societies have already done away with such debasing discrimination.. India too is progressing in the same direction and has passed some enlightened legislation, such as those relating to women's rights of succession, prevention of polygamy etc. And now that we are at the job of amending the Penal Code, I think it is the right time to consider the question whether the offence "of adultery as envisaged in section 497 is in tune with our present day notions of woman's status in marriage.
The Commission discussed this section at some length. The final decision of the majority of the members is that the section should be left as it is, after deleting the provision which exempts the wife from punishment for adultery.
In my opinion, the recommended amendment would be a retrograde step, which would be difficult to justify.
To appreciate the effect of the amendment, it would be useful to glance briefly at the back ground of the section.
Macaulay had, in his Draft Penal Code,1 decided not to make adultery an offence. One of the reasons for that decision was given thus.-
"There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest interests of the human race are closely connected with the chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still children.
They are often neglected for other wives while still young. They share the attention of a husband with several rivals. To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain, operation of education and of time.
But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law. We have given the reasons which lead us to believe that any enactment on this subject would be nugatory. And we are inclined to think that if not nugatory it would be oppressive. It would strengthen hands already too strong. It would weaken a class already too weak. It will be time enough to guard the matrimonial contract by penal sanctions when that contract becomes just, reasonable, and mutually beneficial."
1. Macaulay's Draft Penal Code, (1837) Notes, Note Q pp. 90-93.
The Law Commissioners, in their second report1 on the draft Penal Code, did not think it advisable to exclude the offence of adultery from the Code, but relied on Macaulay's remarks quoted above to recommend the exemption of the woman from punishment for adultery. They gave their reasons thus.-
"While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remarks in Note Q, regarding the condition of the women of this country, in deference to it we would render the male offender alone liable to punishment. We would however put the parties accused of adultery on trial "together", and empower the Court in the event of their conviction to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine. By Mr. Livingstone's Code the woman forfeits her "matrimonial gains", but is not liable to other punishment."
1. Second Report on the draft Indian Penal Code, (1847), pp. 134-135.
The present Commission's recommendation is that this exemption clause be deleted. The reasoning behind it is that with the general advancement in the status of women and especially their education, they can now be held responsible for their own actions and so have no further need for any artificial protection. This idea of equality between men and women in the field of responsibility for their own actions is progressive and is quite unexceptionable; but the resultant recommendation, I am afraid, does not fully reflect the idea. In fact, far from disapproving the mediaeval postulate behind the present provision, the recommendation, in effect, reinforces it.
The wife being considered the husband's property, the present provision reserves for the husband the right to move the law for punishing any trespass on it, while not giving the wife any corresponding right to complain against any transgressions on the part of or relating to her husband. Perhaps to make amends for this harsh discrimination, the present section provides that the wife should not be punished along with the trespasser. The removal of this exemption clause does not cause damage to the basic idea of the wife being the prpperty of the husband. On the other hand, it merely restates the idea, and adds a new dimension to it by making not only the trespasser but the property also liable to punishment. This, as noted before, can hardly be considered a progressive step.
The Supreme Court, while dealing with a case1 under section 498, observed.-.. ,
"The provisions of section 498, like those of section 497 are intended to protect the rights of the husband and not of the wife. The policy underlying the provisions of sestion 498 may no doubt sound inconsistent with the modern notions of the status of women and of mutual rights and obligations under marriage."
1. Alamgir v. State of Bihar, AIR 1959 SC 436 (per Gajendragadkar, J.).
It is time now that we began to look at marriage as an equal partnership, and not as a transaction giving rise to proprietary rights for one over the other. If this equality is to be reflected in the Code, then section 497 would have to be either omitted altogether or reframed so as to make transgressions by either party equally' punishable.
Speaking for myself, I am not for removing the offence of adultery from the Penal Code. No doubt, the idea is spreading in most advanced societies that adultery is not a criminal offence but only a civil wrong. The example of countries which no longer treat adultery as a crime, is no doubt of persuasive value, but it is not binding on us. I do not think our society is as yet ready to take that step. From ancient times our society has stressed the sanctity of marriage and has always considered any violations of it as highly reprehensible. This is the real sanction behind the punishment for adultery. I do not think that there is any change in the popular mind with regard to this matter.
The main argument against making adultery a crime, is that marital morality is the private concern of the husband and wife, and law has "no business" there. True, it is a private matter to a great extent; but society has also a vital interest in the preservation of the family. When immorality goes to the extent of endangering the existence of the family, society can rightly claim to step in; for, in the preservation of the family unit lies ultimately the preservation of society itself. This border line between private and social concern is crossed when adultery results in the dissolution of the marriage and the break up of the family.
The idea that the State should step in only at this stage is nothing new. It is reflected in the provision on adultery in the German Penal Code,1 which is as follows.-
1. If a marriage is dissolved as a result of adultery, then the guilty spouse as well as the guilty partner shall be punished by imprisonment for a term of not less than six months.
2. Prosecution shall be commenced only upon petition."
I am, therefore, of the view that the section be amended to bring out that a perso.-male or femal.-who, being married, has sexual intercourse with a female or a male (as the case may be), not his or her spouse, without the consent or connivance of such spouse, commits adultery, provided that it shall not amount to adultery unless the marriage had been dissolved by reason of that offence.
Mrs. Anna Chandi.
1. Section 172, German Penal Code (1871).