B L Saraf
Once again, constitutionality of the Section 497 Indian Penal Code (IPC) is on a test . Supreme Court has raised a question, ” Why penalize only men for adultery and treat women involved in the crime as victims .” This question arose on hearing a petition challenging the constitutionality of Section 497 IPC. Joseph Shine has challenged the provision as ” unjust, illegal and arbitrary and violative of citizens fundamental right.” He has argued that Section 497 ” discriminated against the women by holding an erroneous presumption that women are the property of men. This is evidenced by the fact that if adultery is engaged with the consent of the woman’s husband then such act ceases to be an offence. It amounts to institutionalized discrimination.”
On 5th January, Supreme Court referred it to the Constitutional Bench of five Judges for a decision, noting that” though criminal law was based on gender neutrality, the concept was absent in Section 497 IPC that criminalized adultery …”
Section 198 (2 ) of Criminal Procedure Code has also been challenged which empowers only a husband to bring charges against the man with whom his wife has committed adultery. According the petitioner these sections were discriminatory and violated gender justice as they denied a husband the right to charge his wife with adultery as also a woman the right to charge her husband with adultery .
In 1985 it was argued before the Apex Court, in Sowmithri Vishnu case, that Section 497 gave husband exclusive right as an aggrieved party to prosecute the adulterer in case involving his wife, a similar right has not been conferred on wife to prosecute the woman with whom her husband has committed adultery . Secondly , the provision does not confer any right on the wife to prosecute her husband for adultery . The law does not take into account cases where the husband has sexual relations with an unmarried woman .
However, the three judge bench , relying upon Yusuf Abdul Aziz’s case of 1954 , dismissed these arguments as having only “emotive appeal.” Answering why a wife cannot be prosecuted as an abettor in adultery, Justice Vivian Bose , speaking for the bench said the protection given to a woman under Section 497 is in tune with Article 15 (3) of the Constitution. This Article allows for making ” special provision which are beneficial for the women and children .”
In 1988 two judge bench of the Supreme Court in V. Revathi’s case denied gender discrimination in adultery offence by saying” the community punishes the outsider who breaks into the matrimonial home and violates the sanctity of the matrimonial tie by developing illicit relationship with one of the spouses. The erring man alone can be punished and not the erring woman . It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can wife prosecute the husband and send him to jail .”
Supreme Court intends to revisit the issue on a concern for woman’s independence and her identity. Question posed by the CJI suggests so, ” The time has come for the society to realize that a woman is equal to her husband in every respect .” And asked does Section 497 demean a woman by relegating her to the level of commodity ?
In J&K, the debate to this extent is irrelevant. Ranbir Penal Code (RPC), which governs penal jur-isprudence in the state, does not exempt wife from culpability in offence of adultery. In Sections 497 and 498 she is made an abettor. RPC answers much of the concerns expressed by is the Apex Court about the inadequacy in Section 197 IPC, in as much as later exempts woman from prosecution in the offence of adultery.
For RPC, however, a challenging looms large should the Supreme Court affirm what it has said in 1954 and 1988 about leaving women out of the criminality in Section 197 IPC. In that event we may hear a clamor that women should be left out in Section 497 RPC as well.
In Sowmthri case Supreme Court held ” …. No grievance can be made that Section does not allow the wife to prosecute the husband. The contemplation of law, evidently, is that wife,who is involved in the illicit relationship with another man, is a victim and not the author of the crime . ..”
At the moment it may not be a matter of concern to us in J & K but one can’t be oblivious to the situation which may emerge, either way. If the view of Sowmithri case prevails and decisions rendered in earlier cases are affirmed by the Apex Court in the pending case, then, provision of Section 497 RPC, in so far as it makes the woman an abettor of the offence, will come under a serious cloud. Especially so, in view of the observation that “wife, involved in the illicit relationship with another man, is a victim and not the author of the crime.” A victim can hardly be an accused in the same occurrence.
RPC is a law in the domain of criminal jurisprudence, though its applicability is restricted to J&K. A question may be asked: can two laws aimed at same purpose but contrasting in material aspect be allowed to remain on the statute books of one country ? Despite earlier decisions of the Supreme Court, Section497 RPC has stood thus far as it is . Given today’s activism and level of public awareness, same cannot be said should the Court affirm its earlier decisions. Maybe the Apex Court follows RPC’s gender neutrality and makes a participating woman an abettor in Section 497 IPC, as well.
(The author is former Principal District & Sessions Judge)
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