Report No. 42
20.11. Section 49.-punishment to be reduced.-
Section 496 punishes one who fraudulently go through a marriage ceremony knowing that he is not there lawfully married. In keeping with our recommendation reduce the maximum punishment under the two preceding sections, the maximum here also should be reduced from seven years' imprisonment to three years.
20.12. Section 497.-
The offence of adultery under section 497 is very limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. The offence is committed only by a man who has sexual intercourse with the wife of another man and without the latter's consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence for which the man can be (but never is) sent to jail for five years.
20.13. Views of Macaulay and of the Law Commissioners.-
The section did not find a place in the first Draft Penal Code prepared by Macaulay. His reasons for not including it were as follows1.-
"We considered whether it would be advisable to provide a punishment for adultery, and in order to enable ourselves to come to a right conclusion on this subject we collected facts and opinions from all the three Presidencies. The opinions differ widely. But as to the facts there is a remarkable agreement.
The following positions we consider as fully established: first, that the existing laws for the punishment of adultery are altogether inefficacious for the purpose of preventing injured husbands of the higher classes from taking the law into their own hands; secondly; that scarcely any native of the higher classes ever has recourse to the Courts of law in a case of adultery for redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in case of adultery to the Courts of law are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider wives as useful members of their small households, that they generally complain not of the wound given to their affections, not of the stain on their honor, but of the loss of a menial whom they cannot easily replace, and that generally their principal object is that the woman may be sent back. Where the complainant does not ask to have his wife again, he generally demands to be reimbursed for the expenses of his marriage.
These things being established, it seems to us that no advantage is to be expected from providing a punishment for adultery. The population seems to be divided into two classe.-those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honor are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances, we think it best to treat adultery merely as a civil injury."
The Law Commissioners in their Report on the Draft Penal Code took a different view and said.-
"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 remark in Note 'Q', regarding the condition of the women in 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 uses for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine."
This latter recommendation was not accepted, and in 1860, section 497 was enacted in its present form.
20.14. Position in the U.S.A.-
It is not surprising that the attitude of criminal law towards adultery varies from country to country. In the United States of America, it varies from one State to another. We may quote from the Harvard Journal of Legislation (January 1970) the following.-
"A review of the many different definitions of criminal adultery throughout the United States will highlight the variance problem. Four major formulations of adultery exist under State law: the 'common law' view, the 'canon law' view, and two hybrid views. Under the common law view, adultery takes place only when the woman is married, but both parties are deemed to be guilty. Under the canon law view, adultery is the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife, only the married person is guilty.
Under the majority hybrid rule, followed by twenty States, if either spouse has sexual intercourse with a third party, both transgressors are guilty of adultery. Finally, eight jurisdictions make both transgressors guilty if the woman is married, but, if the woman is single only the man is guilty. Six States have never passed a statute changing adultery from a common law tort to a statutory crime, so it is not a crime unless it constitutes a public nuisance by being open and notorious; three of these States, however, have anti-cohabitation "statutes.
Three States have statutes punishing adultery but define it neither by statute or case law. Georgia has held that the parties cannot commit adultery unless both are married to someone else; if one is unmarried, the crime is called 'fornication and adultery', and indictments have been quashed where the wrong crime is charged. Eight States require a showing of cohabitation or at least more than a single adulterous act for conviction of adultery."
20.15. Position in Britain, France and Germany.-
While adultery is not a criminal offence in Britain, it is punishable, though mildly, in some of the countries of Europe. Thus, in France a wife guilty of adultery is punishable by jailing for a period ranging from three months to two years but the husband may put an end to her serving the sentence by agreeing to take her back. The adulterer is punishable similarly. A husband who keeps a mistress at the matrimonial home is, on prosecution by the wife, punishable with fine. In Germany, if a marriage is dissolved as a result of adultery, then the guilty spouse, as well as the guilty partner, is punishable by imprisonment for a term of not less than six months, but the prosecution has to be initiated by the aggrieved spouse by means of a petition.
20.16. Questions on which opinion was sought.-
Against this background we included in our Questionnaire the Questions (a) should adultery be punishable at all, and (b) if so, should the offence be limited to men only as in section 497. We found opinion to be more or less equally divided between those who favoured the total abolition of the offence, those who favoured retention of section 497 without any change, and those who would have the section modified so as to make the errant wife punishable along with her paramour.
20.17. Views of the Commission.-
We also could not come to an agreed conclusion among ourselves on these points. It seemed to us, however, that from the factual and practical point of view, the position today is not appreciably different from that described by Macaulay more than 130 years ago. Criminal complaints of adultery (which under section 199 of the Criminal Procedure Code can be brought only by the husband of the woman or, in certain circumstances, by someone else on his behalf) appeared to be comparatively few and confined to the poorer and unsophisticated sections.1
The object of such prosecutions is seldom to send the offender to jail, that is, if the court will regard the offence as serious enough to merit a sentence of imprisonment. It is more often with a view to come to a settlement with the offender on the mercenary level. The existence of the section in the Penal Code has no apparent affect on the number of cases where the irate husband metes out condign punishment on the wife or on her lover or on both of them.
However that they be, among the judges and lawyers who expressed their views on the subject, the majority were in favour of retaining the offence of adultery as defined in section 497. Though some of us were personally inclined to recommend repeal of the section, we think on the whole that the time has not yet come for making such a radical change in the existing position. We, however, think that the reasons which weighed with the Law Commissioners in the last century in exempting the wife from punishment are by and large no longer valid, and there is hardly any justification for not treating the guilty pair alike. The suggestion that, in the name of equality of the sexes, the unfaithful husband who has a mistress or goes to a prostitute should also be punishable for committing adultery did not find a sympathetic response in any quarter.
1. The statistics furnished in the official reports of Administration of Criminal Justice in the States lump together all offences under Chapter 20, making it impossible to find out the number of complaint cases under section 497 only.