Report No. 42
20.18. Revision of section 497 recommended.-
After much discussion and careful consideration, we are of the opinion1 that the exemption of the wife from punishment under section 497 should be removed, that the maximum punishment of five years' imprisonment prescribed in the section is unreal and not called for in any circumstances and should be reduced to two years, and that with these modifications, the offence of adultery should remain in the Penal Code. It is accordingly recommended that the section may be revised as follows.-
"497. Adultery.- If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
1. One of us, Mrs. Anna Cahndi, is of a different opinion. Her views are set out in the annexure to this Chapter.
20.19. Section 498.-
Section 498 punishes any one who "takes or entices away" a married woman from her husband with intent that she may have illicit intercourse with any person, and also any one who "conceals or detains" any married woman with the same intent. As observed by the Supreme Court,1 "the gist of the offence under section 498 appears to be the deprivation of the husband of his custody and his proper control over his wife, with the object of having illicit intercourse with her. Section 498 is intended to protect, not the rights of the wife, but those of her husband; and so, prima facie, the consent of the wife to deprive her husband of his proper control over her would not be material. It is the infringement of the rights of the husband, coupled with the intention of illicit intercourse, that is the essential ingredient of the offence."
1. Alamgir v. State of Bihar, 1959 (Supp) 1 SCR 464 (467, 468).
20.20. Meaning of "detains".-
The question raised before the Supreme Court that case was whether the word "detains" did not involve the detention of the married woman against her will. In regard to the three other acts mentioned in the section, namely, taking away, enticing away and concealing, it cannot be seriously contended that the consent of the woman affects the guilt of the actor so long as the intention and knowledge specific in the section are established. In regard to the act of the detention also, the Supreme Court, after reviewing the decisions of the High Courts, has held that, although the word may denote detention of a person against his or her will, it is impossible to give it this meaning in the context.
20.21. Policy of section.-
Gajendragadkar, J. (as he then was) remarked that "the policy underlying the provisions of section 498 may no doubt sound inconsistent with the modern notions of the status of women and of the mutual rights and obligations under marriage. Indeed Mr. Saran vehemently argued before us that it was time that sections 497 and 498 were deleted from the Penal Code. That, however, is a question of policy with which Courts are not concerned".
We considered whether section 498 should be repealed or amended so as to make it accord with "modern notions of the status of women". By way of amendment, it could hardly be suggested that it should be an offence for any one (man or woman) to entice away or conceal a married man so that he may have illicit intercourse with a woman. On the other hand, repealing of section altogether might result in giving unchecked liberty to procurers and go-between which; point of view, would not be desirable.
20.22. Revision of section recommended.-
We feel, however, that it would be an improvement to limit the offence to the three acts of taking away, enticing away and concealing. Detention which in the context may even cover the act of giving shelter to a married woman who has left her husband of her own free will, may be omitted. We propose the section may be amended as follows.-
"498. Taking or enticing away or concealing with criminal intent a married woman.- Whoever takes or entices away or conceals any woman who is, and whom he knows or has reason to believe to be, the wife of any other man, from that man or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both."
20.23. Maintenance of pregnant woman.-
We considered a suggestion that the Penal Code should contain a provision for punishing a person who, having made a woman pregnant leaves her uncared for and help less at the time of her confinement. It is provided in the German Penal Code1 that "anybody who unscrupulously with holds assistance from a woman whom he has rendered pregnant, which assistance she need by reason of such pregnancy or child birth, and thereby endangers the life of the mother or child, shall be punished by imprisonment". We think, how ever, that such a provision cannot be appropriately put in a penal law.
The man's conduct will certainly be disapproved by society, but to haul him up before a criminal court does not seem right. Interference of the criminal law in these matters of family life should, we think, be extremely limited. If any hardships are caused to the woman or to the child by such indifference or neglect on the part of the male, then, the remedy certainly does not lie in treating it as a crime; the welfare of the woman or child, could be better taken care of by other measures.
1. Section 170c.
20.24. Endangering a child by neglect.-
Another suggestion we considered was also derived from the German Penal Code. A section1 makes it an offence punishable with imprisonment for "anybody who endangers the physical or moral welfare of a child by grossly and unscrupulously neglecting his duty of supporting and educating the child, especially by leaving the child without sufficient food or care." We do not, however, think that such a provision is particularly suited for inclusion in the Code as a punishable crime. The complaint being that the offender has failed to maintain his child, the proper remedy would be to force him to maintain his child. This is already provided for to a certain extent in section 488 of the Criminal Procedure Code. Alternatively, it could be appropriately included in special legislation relating to children.
1. Section 170d.
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