The Law Relating to Adultery: A Critical Evaluation in Present Social Context By Parvez Ahmed Assistant Professor Department of Law Green University of Bangladesh Mirpur, Dhaka. E-mail: [email protected] Mob: 0172 049 1119 And Rehena Parvin Assistant Professor Department of Law and Muslim Jurisprudence Islamic University Kushtia. E-mail: [email protected] Mob: 01985 808 969 0 The Law Relating to Adultery: A Critical Evaluation in Present Social Context [Abstract: Adultery had been brought under punishment nearly 150 years ago under the Penal Code 1860 where women were exempted from any penal liability. Though many provisions of the Code had been amended during the span and demand of time, the provisions of adultery remain unchanged. The relevant legal provisions appear to be unconstitutional but the judicial interpretations are still in favour of them. This article measures the provisions of adultery from legal and social perspective of 21st century. It is explored that the law of adultery is not only defective but also induces the extra-marital sexual relationships. Apparently the law protects the women but because of its weakness, the law makes the women more vulnerable in society and also deprives them of legal protection. After analysing the issue from each and every corner, the article rationally establishes the necessity of amendment of the Code]. Key words: Adultery, Women’s exemption, Constitutional provisions, Court’s judgement, women’s interest 1. Introduction ‘Marriages are made in heaven.’ Over centuries this has been believed and marriages have always been considered as the building block of the society and its sanctity has been accepted and respected in all societies and across cultures. But the cosmopolitan societal environment and approach, excessive tendency on capitalism, the breakdown of family bondage, lack of skills and motivation to solve the problems of conjugal life drive the spouses to drift away from their marriage and start searching for a new partner in whom they find happiness and satisfaction. Though the laws of Bangladesh uphold the sacredness of the matrimonial tie and punish the intruders, there remain many lacunas and loopholes. The penal provision of adultery is one of them. The purpose of this research article is to review the penal provision of adultery as stated under section 497 of the Penal Code 1860 (hereinafter referred as the PC). The punishment of adultery was codified more that 150 years ago considering the vulnerable position of 1 women under the social structure of the erstwhile Indian sub-continent. Though the society has undergone through many historical, political, economical and value-based development within this long period of time, surprisingly the penal provision of adultery remains stagnant in the same place. Law is an ever changing dynamic subject. Any law, if it fails to keep pace with the changing times becomes obsolete. Hence, there is a need to revisit and review the present provision of the Penal Code dealing with adultery and bring the necessary changes. The objective of the article is to achieve the following goals: 1. To represent the existing provision of adultery under the Penal Code of 1860. 2. To find out the reason of immunity of woman from the charge of adultery. 3. To address such debated issue of exemption from the legal point of view and under the present social context. 4. To recommend the necessary amendments which the researcher deems fit in the backdrop of 21st century. The readers of the article will get an in-depth analysis on this issue and the judicial standings regarding it. The judicial decisions have been criticised in this article to rationalize the proposal for amendment of this section 497 of the PC. By this way the readers will find out the necessary arguments for defending the changes as demanded in this article. The whole article has been devised into few parts. For better understanding, it has been discussed under different numbered and sub-numbered lists. It starts with an introduction which covers the justification, goals, objectives and outcomes of this article. It also briefs the chapterisation of the article. The second part has elaborated the statutory meaning and ingredients of adultery. The third part, being the backbone of this article, evaluates the statutory punishment of adultery under the social, philosophical and legal context. This part critically analyses those judicial decisions which have guaranteed the immunity of women from any penal liability for the offence of adultery. A social argument has also been presented in this part in order to prove that this exemption, in reality, humiliates the women rather than honour them. The fourth part advocates for necessary reforms on the basis of the present 21st century social development and proposes the amended punishment for adultery. The fifth and final part of the article concludes by summarizing the total discussion 2 and opines that the law of adultery under the PC is genuinely gender biased and must be revisited and reformed. 2. Adultery: Meaning, ingredients and complainants 2.1: General definition Generally, adultery refers to the illegitimate relationship with the opposite sex; sexual intercourse between individuals who are not married to each other. The term ‘adultery’ has its origin in the Latin term ‘adulterium’. The term comes from the words ‘ad’ (towards) and ‘alter’ (other).1 At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse. Under the Common Law, the crime of fornication consisted of unlawful sexual intercourse between a married woman and a man, regardless of his marital status is adultery. Almost every religion condemns it and treats it as an unpardonable sin.2 However, this is not reflected in the penal laws of countries. 2.2: Legal Definition of Adultery Section 497 of the Penal Code 1860 perceives a consensual intercourse between a man, a married or unmarried, and a married woman without the consent or connivance of her husband as an offence of adultery. The section states: “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 punished as an abettor.”3 The offence is committed only by a man who has sexual intercourse with the wife of another man without her husband’s consent. However, it is not necessary that the other person is 1 Jovan Payes, “Adultery and the Old Testament”, http://biblicalfaith.wordpress.com/2008/06/12/adultery and-the-old-testament/ accessed 12.06. 2013 2 Encyclopaedia Dictionary of Religion (The sisters of St. Joseph of Philadelphia 1979) 3 s 497 of the Penal Code 1860 3 married.4 Adultery is an offence which is committed by a third person against a husband in respect of his wife and of which a man can alone be held liable for the offence.5 Adultery is considered to be an invasion to the right of the husband over his married wife.6The law of adultery is not applied on a woman and has been expressly provided that the woman cannot be held for abetment of the offence. The object of the law is to inflict punishment on those who interfere with the sacred relation of marriage, and the legislature also considers it to be an offence against the sacred matrimonial tie.7 It is commonly accepted that it is the man who is the seducer and not the woman, and it is considered as an anti-social and illegal act by any peace lover and citizen of good morals who would not like anyone to be indulged in such acts before their nose.8 2.3: The Ingredients of Adultery The essential ingredients of adultery are: 1. There must be sexual intercourse with the consent of the woman; 2. the penetration must be sufficient to constitute sexual intercourse necessary to the offence;9 3. knowledge and reasonable belief that the woman is married to another man and that marriage should be lawful; 4. the husband of the woman had not consented or connived for the sex with his wife;10 5. and the husband has complained about the sexual intercourse.11 4 Samraj Nadar v Abraham Nadachi, AIR 1970 Mad. 434, 437. 5 Gansapalli Appalamma v Gantappali Yeliayya, (1897) ILR 20 Mad 470. 6 Chandra Chhitar Loha v Mst. Nandu, AIR 1965 MP 268, 269. 7 Re Rathna Padayachi, AIR 1917 Mad 220; V. Revathi v Union of India, AIR 1988 SC 835; See also, Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System 190 (2003) (“Criminal Justice” hereinafter), http://www.mumbaipolice.org/%5Carchives_report%5Cmalimath%20committee%20report.pdf accessed 09.10.2013 8 V. Revathi v Union of India, AIR 1988 SC 835; See also, Hatim Khan v State, AIR 1963 J&K 56. 9 Hari Singh Gour, 4 Penal Law of India (Law Publishers (India) 11th ed 2009) 4654-55 See also, Section 376, Explanation of Indian Penal Code, 1860 10 Nurul Haq Bahadur v Bibi Sakina and others 1985 BLD 269 11 ibid pp. 4656-61 4 2.4: Person Entitled to Make Complaint on Adultery A husband alone is authorized to make a complaint on adultery.12 An offence of adultery can be charged only against a male and based on a complaint by a husband and nobody else. In absence of husband a charge of adultery can be brought with the leave of the court by somebody who had the care of the woman on his behalf at the time when such offence was committed.13 Provided that, where such husband is under the age of 18 years, or is an idiot or lunatic, or is from sickness or infirmity unable to make a complaint, some other person may, with the leave of the Court, make a complaint on his behalf.14 A wife cannot make a complaint against her husband for his ‘illicit lady-friend’.15 3. Punishment of Adultery and Its Justification under Social and Legal Context 3.1: Punishment of Adultery The punishment for adultery is a jail term of maximum five years or with fine or both. Only the male offender is punishable under this section and the adulterous wife cannot be punished not even as an abettor. 3.2: The Philosophical and Social Reason for Keeping the Woman Outside from Punishment: In order to find out the philosophical and social reason of this exemption, one needs to look back the time of codification of this Code. The framers of the Code i.e. the first Indian Law Commission comprising of Lord Macaulay, J.M. Macleod, G.W. Anderson and F. Millet, did not deem fit to put infidelity in the First Draft of the Indian Penal Code. Reviewing facts and opinions collected from all the three Presidencies about the feasibility of the criminalisation of adultery, Lord Macaulay concluded: 12 1974 Cri LJ 117 13 s. 199 of the Code of Criminal Procedure 1898 14 ibid 15 W. Kalyani v State Tr. Inspector of Police & Anr (2012) 1 MLJ (Crl) 546 (SC) 5 "It seems to us that no advantage is to be expected from providing a punishment for adultery. The population seems to be divided into two classes - those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honour are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances, we think it best to treat adultery merely as a civil injury.”16 The 2nd Law Commission of 1853 headed by Sir John Romilly, however, took a different view. Disfavouring the Macaulian perception of adultery, but placing heavy reliance upon his remarks on the status of women in India, they concluded: "While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note 'Q', regarding the condition of the women in this country, in deference to it, we would render the male offender alone liable to punishment.” 17 The authors also defended themselves by quoting that “Though we well know that the dearest interests of human race are closely connected with the chastity of women and the sacredness of nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily, very different from that of the women of England and France; they are married while still children; they are often neglected for other wives while still young. They share the attentions of husband with several rivals. To make laws for punishing the inconstancy of the wife, while the law admits the privilege of the husband to fill his zenana with women is a course which 16 Macaulay's Draft Penal Code (1837), Notes, Note Q, pp. 90-93, cited from, Law Commission of India, Forty-second Report: Indian Penal Code (Government of India, 1971), para 20.13. 17 Second Report on the Draft Indian Penal Code (1847), pp. 134-35, cited from, Law Commission of India, Forty-second Report: Indian Penal Code, (Government of India, 1971), p. 365 6 we are most reluctant to adopt. We are not so visionary as to think of attacking, by law, an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain operation of education and of time. But while it exists, while it continues to produce its never-failing effects on the happiness and respectability of women, we are not inclined to throw into a scale, already too much depressed, the additional weight of the penal law.”18 It is explicit from the views of the authors of the Code that they have exempted the wife from the charge of adultery considering the philosophical perspective and the social fragility of a wife during the middle of the nineteenth century. There was a common tendency of polygamy and child marriage. The difference of ages between the spouses was even more than 40 years. The wives were treated as a property and they were thought as a product bought for procuring son. There were limited chances to education and for earnings for a woman. Though the situation has changed now-a-days, few experts still advocate on this provision. They opine that though except Mohammedans no community can now practise polygamy, nor is child marriage legal, yet as a matter of fact Hindu women are still socially discriminated in a male dominated society. Polygamous marriages, child marriages and accusation of adultery against her character still take place in outlying rural areas either due to ignorance of law or due to the long prevailing social practices. Therefore, it may feel that the change of female life style is not perhaps too right and the wife who is seduced is really the victim and not the author of the crime. In this background, perhaps time is not yet ripe to punish women for adultery.19 3.3: Justification of Exemption of Wife in Present Social Context and from Legal Point of View: As the male offender alone has been made liable to punishment and the wife has been exempted from any criminal liability, the section has created huge criticism from different aspects of law. Jurists opine that the provision under section 497 of the Penal Code is unconstitutional and gender biased. Moreover, it goes against women’s interest more than it 18 Ratanlal & Dhirajlal “ The Indian Penal Code” ( 33rd edn 2012 LexisNexis Butterworths, India) 1011 19 ibid 7 serves their interests. The women’s rights activists today say that the law relating to adultery is premised on the outdated notion of "marriage". The law, according to them, is not only based on the husband's right to fidelity of his "wife" but also treats "wife" merely as a chattel of her husband. Such a gender-discriminatory and proprietary-oriented law of "adultery", they argue, is contrary to the spirit of the equality of status guaranteed under the constitution. 3.3.1: Punishment of Adultery from Legal Point of View The punishment of adultery under s. 497 of the Penal Code has been challenged from legal point of view. It is considered that the exemption of wife violates the constitutional provisions of the country in the following ways: 3.3.1.1: Violation of Constitutional Provisions The contention which can be presented at first is that the section 497 of the PC is unconstitutional as it violates Articles 27, 28, 31 and 34 of Bangladesh constitution. Article 27 has guaranteed all citizens of Bangladesh the equality before law and the equal protection of law in the country. Article 28 ensures that The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth. Women shall have equal rights with men in all spheres of the State and of public life. No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. 20 Article 31 says: To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no 20 Article 28 (1-3)of Bangladesh Constitution 8 action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.21 and Article 34 of the constitution prohibits forced labour by declaring that all forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.22 3.3.1.2: Judicial Standings as to Violation of Constitution The initial important discussion regarding the constitutional validity of this section was held in the case of Yusuf Abdul Aziz v The State of Bombay and Husseinbhoy Laljee23.In this case, section 497 was challenged to be ultra vires the Articles 14 and 15 of the constitution of India (as similar as Articles 27 and 28 of Bangladesh constitution). It is thought whether the section would be at loggerheads with Article 14 of the constitution, which guarantees the right to ‘equality before law’, on account of the fact that it leaves out the woman adulterer from the purview of punishment while punishing her male lover, arose.24 The Supreme Court of India held that Article 14 is a general provision and should be read keeping in mind the other provisions which sets out exceptions to fundamental rights. However, such thoughts were laid to rest due to the presence of Article 15(3) of the Constitution (as similarly provided in Article 28(3) in the constitution of Bangladesh), which states that ‘Nothing in this Article (i.e. Article 15 as a whole) shall prevent the State from making any special provision for women and children'. Though the petitioners argued that this clause is made only for the benefits of the women and not for giving licence for committing or abetting crime, however, the Court held that they cannot see any restrictions as such; nor they agree that the section tantamount to a licence 21 Article 31 of Bangladesh Constitution 22 Article 34(1) of Bangladesh Constitution 23 AIR 1954 SC 321. 24 Avik Ghatak, ‘Section 497 (Adultery) of the Indian Penal Code - The MYTH and the REALITY’ online journal: LAWYERSCLUBINDIA http://www.lawyersclubindia.com/articles/Section-497-Adultery-of-the-Indian- Penal-Code-The-MYTH-and-the-REALITY-4876.asp accessed 25.09.2013 9