Tuesday, 10 December 2019

Discriminatory Law

Updated: September 15, 2012 3:13 pm

It would certainly amount to an exaggeration if I say that Section 497 of IPC pertaining to adultery must be abolished. But certainly I won’t be overstating or exaggerating if I state that it needs to be amended suitably at the earliest to meet the present circumstances because we are now living in 2012 and not in 1812 or 1912. I am totally dumbstruck to see that even after so many years of Independence, this most discriminating section in not only IPC but in our entire criminal law which imposes punishment on men alone even though women fully consented to it or even lured him as an abettor still remains untouched after so many years. What a pity! Section 497 says: “Whoever has sexual intercourse with a person 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, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

It is beyond at one’s comprehension that why a married women alone has been given a blank cheque of open exemption to indulge in free sex with as many men as she likes and yet not be punishable as an abettor notwithstanding the fact that it was she who lured them and they all will be punishable for being a man! Can on earth there be any such discriminatory law which openly discriminates between men and women and punishes men alone even though women abetted it? At least, not in my knowledge have I ever heard of such a law.

I was just nonplussed totally when I first came to know that even in England itself adultery is not a criminal offence because IPC is their creation. In some European countries, adultery is mildly punished. For instance, in France, a wife guilty of adultery is punishable from minimum three months to maximum two years of imprisonment. The husband, however, has discretion to end her sentence and take her back. The adulterer is similarly punished. In Malaysia, Singapore and Hong Kong, adultery is not punishable. In the US, six states do not punish adultery at all, in 20 states both transgressors are guilty and in eight states both transgressors are guilty if woman is married but if she is single then only man is guilty. In Pakistan and most Islamic countries, adultery can be punished with death also. In Philippines it is the married women who are alone liable for adultery.

Just recently, Justice SN Dhingra of Delhi High Court said: “We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband who is holding an MBA degree cannot be treated differently to an unemployed wife who is also holding an MBA degree.” Does this concept of equality not apply in case of adultery also? Is woman a child, an insane or suffers from any other infirmity that anyone can easily take her for a ride? If such is the case then certainly men alone deserves punishment. A crime is a crime whether it is murder, theft or adultery. If a woman can be punished for murder, theft and other offences then why not for adultery also? Time has come when this gross injustice perpetuated on men is rectified.

To be brutally honest, if there is one section in the IPC which is detestable, it is obviously Section 497. No other section of IPC so blatantly discriminates between men and women with men here being at the receiving end and women being at the gaining end. No men can ever even stare continuously at a woman without her consent, leave alone the question of having physical relationship.

Don’t get me wrong. I’m not against women rather I strongly support equality demanded by them with men in all spheres including permanent commission in armed forces. I’m just saying that why adultery should be a special exception? Either there should be no punishment at all both for men and women or both should be awarded equal punishment or only that individual who is married and breaks the faith of his/her spouse by indulging in it should be held liable irrespective as to whether he/she is a man or a woman. We must learn something from Ranbir Penal Code 1932, S. 497 applicable to Jammu & Kashmir under which both are equally punished. Similarly in Korea, both husband and wife are equally punishable for adultery under Article 241 of the Korean Criminal Code. But in Uganda adultery is criminal for women and not for men.

The Fifth Law Commission of India in its 42nd Report, 1971 had recommended the retention of Section 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband should be made punishable for adultery. It also recommended for revision of the current punishment for the same, which is five years, as it felt that it is, “unreal and not called for in any circumstances.” The suggested modification was not accepted by the legislature. Joint Selection Committee suggested equal culpability of both the sexes for their promiscuous behaviour, but it was of the view that the old punishment of five years should be retained as it is. The Committee on Reforms of Criminal Justice System in 2003 recommended: “In view of the fact that an adulterous relationship cannot take place without the consent of the married woman, it is highly discriminatory to hold only the man guilty of the offence without making the adulterous woman liable for her infidelity.” Even the apex court in Sowmithri Vishnu v. Union of India AIR 1985 SC 1618 held : “It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the legislature to consider whether S. 497 should be amended appropriately so as to take note of the ‘transformation’ which the society has undergone.”

The National Commission of Women had also criticised the British era law of being anti-feminist as it treats women as the property of their husbands and has consequentially recommended deletion of the law or reducing it to a civil offence. The 14th Law Commission in its 156th Report also recommended reformation of the criminal law of adultery and changes in relevant sections of Cr PC also. At least now our government must act and initiate necessary changes in it whether it is making either it gender neutral or decriminalising it entirely! Media should also play its part in this regard by debating it more vigorously and prominently to draw the attention of our law-makers in this regard. What a pity that a woman can now be prosecuted for rape as the government is planning to make rape laws gender neutral but still she cannot be prosecuted for adultery!

By Sanjeev Sirohi

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