Parliamentary panel’s draft proposal to make adultery a crime contradicts landmark SC judgment

The move also raises questions about the direction of legal reforms in India.

By seeking to recriminalise adultery, even in gender-neutral terms, the Parliamentary Standing Committee would go against what the Supreme Court had held five years ago.  | Photo Credit: SUBRAHMANYAM VV

In what appears to be a retrograde move, the draft report of the Parliamentary Standing Committee on Home Affairs, examining the three Bills which are set to replace the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Indian Evidence Act (IEA), has reportedly recommended the restoration of adultery as a crime, on gender-neutral lines.

The Bills were introduced in the Lok Sabha on August 11 with the aim of reforming the colonial-era laws to protect the rights of the citizens and enhance the potential of justice delivery. Since then, the Parliamentary Standing Committee on Home Affairs, consisting of 30 members of Parliament (of whom 16 belong to the BJP), to which they were referred for scrutiny, has been examining them, in order to submit its report by November 11, after consulting the experts and stakeholders.

Coming close on the heels of the Supreme Court’s dismissal of petitions seeking recognition of the right to marriage equality of same-sex couples, the proposal to restore the offence of adultery only vindicates the petitioners’ concern in that case that the Court was egregiously wrong in expecting Parliament to initiate reforms in the institution of marriage.

The proposal to restore adultery as an offence is sure to invite the wrath of the committee members (belonging to the Opposition) who have already been protesting against the inexplicable haste in finalising the report and the lack of effective consultation with experts and stakeholders which preceded it.

One wonders whether the Parliamentarians who have proposed to bring back the offence of adultery read the Supreme Court’s landmark judgment in Joseph Shine vs. Union of India, pronounced by a five-judge Constitution bench in 2018.

Joseph Shine, a non-resident Indian, hailing from Kerala, filed a public interest litigation under Article 32 of the Constitution, challenging the validity of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the Cr.P.C.

Section 497 IPC imposed culpability on a man who engaged in sexual intercourse with another man’s wife. The offence was punishable with a maximum imprisonment of five years. The wife who had consented to sexual intercourse with a man, who was not her husband, was exempted from prosecution. Section 497 did not apply to a married man if he engaged in sexual intercourse with an unmarried woman or a widow.

Ironically, Section 198(2) CrPC provided that only the husband (of the wife who indulged in sexual intercourse with a man outside her wedlock) might file a complaint for the offence of adultery.

In July 2018, the Centre filed an affidavit in the case arguing that diluting adultery in any form would impact the ‘sanctity of marriage’. On September 27, 2018, the bench pronounced a unanimous judgment in the form of four concurring judgments.

The then Chief Justice of India, Dipak Misra (for himself and Justice A.M. Khanwilkar both of whom had since retired), held that Section 497 IPC treated women as subordinate to men inasmuch as it laid down that when there is connivance or consent of the man (husband) for the adulterous act of his wife, there is no offence. It treated the woman as a chattel, as a property of man and totally subservient to the will of the master, the judgment held.

Section 497’s exclusion of the wife of the adulterer (man) as an aggrieved person, who could complain, was also noted in the judgment critically. As a result, the provision was declared manifestly arbitrary and violative of Article 14 of the Constitution.

In Chief Justice Dipak Misra’s opinion, Section 497 created invidious distinctions based on gender stereotypes which created a dent in the individual dignity of women.

It is not as if the main opinion by Chief Justice Dipak Misra did not anticipate the possibility that adultery could be made a gender-neutral crime. But his judgment questioned the contention that adultery could at all qualify as a crime. “If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce,” he had reasoned.

Justice R.F. Nariman, in his concurring opinion, held that what Section 497 sought to punish was not adultery per se, but the proprietary interest of a married man in his wife.

When the IPC was enacted, Hindus had no law of divorce as marriage was considered to be a sacrament. There was no sense in punishing a married man for having sex with an unmarried woman as he could easily marry her at a subsequent point in time, as Hindu men could marry any number of wives till 1955. Post-1955-1956, with the advent of the Hindu Code, a Hindu man could marry only one wife, and adultery became a ground for divorce in Hindu Law. This archaic law has long outlived its purpose and does not square with today’s constitutional morality, Justice Nariman held.

Justice D.Y. Chandrachud (as he then was) held that Section 497 was grounded in paternalism, and subjugated the woman to a position where the law disregarded her sexuality. The criminalisation of adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other, he added.

Justice Indu Malhotra was categorical that the autonomy of an individual to make his or her choices concerning his/her sexuality in the private sphere should be protected from public censure through criminal sanction. Criminal sanction, in her view, is justified where there is a public element in the wrong, such as offences against State security, and the like. Adultery, though a moral wrong qua the spouse and the family, does not result in any wrongfulness to society in general, in order to bring it within the ambit of criminal law, she explained.

By seeking to recriminalise adultery, even in gender-neutral terms, the Parliamentary Standing Committee would not just be inconsistent with what the Supreme Court had held five years ago but would also be setting the historical clock back by several decades.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.