Adultery and Gender Equality: Proposals for Reform

The Fifth Law Commission of India, as early as in 1971 recommended that the exemption of the wife from punishment for committing adultery be removed from Section 497 IPC. It also felt that an imprisonment for a term upto five years (stipulated in Section 497) is "unreal and no called for in any circumstances." The recommended Section 497 reads as: "497. Adultery: If a man has sexual intercourse with a woman 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,  the man and the woman are guilty of adultery, and shall be punished for imprisonment of either description for a term which may extend to two years, or with fine, or with both." However the Joint Select Committee substituted the above revised Section 497 by the following: "Whoever has sexual intercourse with a person who is, and whom he or she knows or has reason to believe to be the wife or husband as the case maybe, of another person, without the consent or connivance of that other person, such intercourse by the man not amounting to the offence of rape, commits adultery, and shall be punished with imprisonment or either description for a term which may extend to five years, or with fine, or with both." Inspired by the spirit of equality the Fifth Law Commission and the Joint Select Committee have thus shown their inclination to the equality of the sexes by recommending equal culpability for the "man" as well as the "woman" for committing the adultery. Surprisingly, however, for reasons bet=st known to them, neither the Law Commission nor the Joint Select Committee has how any sensitivity to the equally pertinent traditional proprietary rights of the "husband" over his "wife" and to the subordination of woman in the Indian family institution. Mrs Anna Chandi, one of the Members of the Fifth Law Commission, voicing her reservations about the revised section 497 suggested by her other colleague Law Commissioners, observed: "The wife being considered the husband's property, the present provision reserves for the husband the right to move the law for punishing any trespass on it, while not giving the wife any corresponding right to complain against any transgressions on the part of or relating to her husband. Perhaps to make amends for this harsh discrimination, the present section provides that the wife should not be punished along with the trespasser. The removal of this exemption clause does not cause damage to the basic idea of the wife being the property of the husband. On the other hand, it merely restates the idea, and adds a new dimension to it by making not only the trespasser but the property also liable to punishment. This, as noted before, can hardly be considered a progressive step." It is pertinent to note that recently in 1997 the Fourteenth Law Commission,in its 156th Report on Indian Penal Code, endorsed with minor modifications, the proposal for reform recommended by the Joint Select Committee. It also stressed that changes suggested in its revised Section 497 IPC be made in Section 198(2) CrPC. The Apex Court curiously, did not attach any judicial significance to the proposal for reform recommended by the Fifth Law Commission and of the Joint Committee approved by the Rajya Sabha. It could have justifiably relied upon these proposals to inject gender equality in the adultery law. But it preferred to assert, time and again, that it is for the legislature to take cognizance of the social "transformation" and the changed values as they involve questions of "policy of law".