SC judges refer to evolution of law penalising adultery in India

Evolution of an archaic law which criminalised adultery in India found mention in the Supreme Court during Thursday's historic verdict declaring the penal provision as unconstitutional and striking it down.

Justices R F Nariman and Indu Malhotra, who were part of the five-judge constitution bench, discussed in their separate concurring judgements the origin of the now struck-down law in India.

Both the judges have termed Section 497 of the India Penal Code, which was formulated in 1860, as "archaic", with Justice Nariman pointing out that the "real heart" of the provision is disclosed when it says that no offence is committed if adultery happens with the consent or connivance of the husband.

 

"In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament," Justice Nariman noted, adding that a Hindu man could marry any number of women until 1955.

Justice Malhotra, the lone woman judge in the bench, also pointed out that the Indo-Brahmanic traditions prevalent in India mandated that the chastity of a woman to be regarded as her "prime virtue" which is to be closely guarded to "ensure the purity of the male bloodline".

"The objective was not only to protect the bodily integrity of the woman, but to ensure that the husband retains control over her sexuality, confirming her 'purity' in order to ensure the purity of his own bloodline," Justice Malhotra said.

Justice Nariman said, "It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time."

He said post 1955-1956, with the advent of the Hindu Code, a Hindu man can marry only one wife and adultery has been made a ground for divorce in Hindu Law.

Justice Malhotra in her separate but concurrent verdict said that in the first draft of the IPC released by the Law Commission of India in 1837 did not include adultery as an offence.

"Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence. The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, who were of the opinion that the existing remedy for adultery under Common Law would be insufficient for the poor natives, who would have no recourse against the paramour of their wife," she said.

Justice Malhotra discussed the debate that took place in order to determine whether adultery should be a criminal offence in India.

She noted that in the debate, the then existing laws for the punishment of adultery were considered to be altogether "inefficacious" for preventing the injured husband from taking matters into his own hands.

"The Law Commissioners considered that by not treating adultery as a criminal offence, it may give sanction to immorality. The Law Commissioners considered the plight of women in this country, which was much worse than that of women in France and England. 'Note Q' (prepared by the Indian Law Commissioners) records this as the reason for not punishing women for the offence of adultery," Justice Malhotra said.

She also said that Colonel Sleeman, who was part of the law commission which debated over the enactment of the penal code, opposed the reasoning of the Law Commissioners on this subject.

"The backwardness of the natives to take recourse to the courts for redress in cases of adultery, arose from the utter hopelessness on their part of getting a conviction. He was of the view that if adultery is not made a crime, the adulterous wives will alone bear the brunt of the rage of their husbands. They might be tortured or even poisoned. In his view, offences such as adultery were inexcusable and must be punished," she said.

"This debate along with the recommendation of the Law Commissioners was considered by the Indian Law Commissioners while drafting the Indian Penal Code. It was in this backdrop that Section 497 came to be included in the IPC," Justice Malhotra added.