SC scrapped IPC497: A Small Step towards Gender Equality
IPC 497 was a Victorian Law & has taken too long a time to be scrapped down. It's another significant change in the Indian society from the socio-legal perspective.
Does it mean that extra-marital affairs got legal permission?
Not at all. This verdict doesn't legalise extra-marital affairs, neither does it allow everyone to practice extra-marital affairs. They still remain illegal. The wife / husband, on feeling being cheated, can always file a divorce suit against the corresponding spouse. Faith n loyalty in the Institution called marriage still remain legally necessary & indispensable. To remain happily married, couples still need to remain completely faithful towards each other.
Then what's the change that happened?
Nothing but the court addressed that loving anyone else too in spite of being married falls under a person's personal ambit. It's not really punishable by law, particularly when the penal law fails to address a problem or an offence in totality & tries to enact penal provisions on the basis of gender discrimination. I'll explain in details how IPC 497 was discriminative later in this blog. The court scrapped down the provision of punishment of men on this ground.
The SC could have taken either of the two decisions.
1. Could have made both the man & woman equally punishable for adultery
2. Could have relieved the men too from being punished on this ground.
The court took the 2nd decision addressing the natural polygamous, polyandrous nature of human beings.
Further though the SC, even if they wanted, couldn't have taken the first decision because SC is not the law making authority. Hence, for an action, which hasn't been enumerated as a penal offence at all by the Law enacted by law makers, SC couldn't have suggested any punishment. It is the sole prerogative of the legislature to take such a decision and SC in its order never prevented them from taking such decisions afresh through enactment of new law.
But that doesn't at all mean that SC legalised extra-marital affairs. They're still illegal & may be treated as offence, but not penal ones.
What was IPC 497?
Quoting from IPC "497.Adultery.- 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."
What was IPC 497 for simple understanding?
If a married woman involved herself with another man (married / unmarried) her husband couldn't have complained against his wife & demanded punishment for her but could have complained against the man with whom his wife got involved. Then too, the man used to be punished. The wife was never considered to be a human being enough to be punished. However, I also appreciate that keeping the women out of the claws of punishment was perhaps relevant & required from the perspective of time when the law was first written.
On the other hand, if a married man involves himself with another woman, (married / unmarried) not only that his wife couldn't have complained against her husband & demanded punishment for him but also couldn't have complained against the woman with whom her husband got involved.
Thus the possible cases of Adultery are as follows:
CASE 1: A 'married woman' involved herself with 'another man'.
a) The 'married woman' was not punishable by IPC 497.
b) 'Another man' was punishable under IPC 497 against complaint of 'married woman's' husband.
CASE 2: A 'married man' involved himself with 'another woman'.
a) The 'married man' was not punishable by IPC 497.
b) 'Another woman' was also not punishable under IPC 497 as if the question of any complaint of 'married man's' wife doesn't arise at all.
Now isn't it true that IPC 497 was apparently discriminative not only in the eye of the Honourable Court or any person with legal knowledge but also to any layman like me having only legal common sense.
Not only that, there remained even further inequality of treatment towards men & women. If a man could have been sent to the jail because he involved himself with another woman who was wife of some other person, why couldn't the married woman too been sent there on the same ground? Why this এক যাত্রায় পৃথক ফল?
Please note, SC raised the question on hearing the case that if adultery was a punishable offence for men, why won't it be punishable for women too?
This means, because of a lady in between, one man could have heckled another. And even if the lady was the prime cause, she was not punishable by law. Even if the wife, by her own intentions, involved herself into some illicit relationship with some other man, then also on being charged & proven, the MAN with whom she involved herself used to be punished whereas the WIFE used to be considered as just 'dhoa tulsipata' (means flawless).
A highly patriarchal code indeed that assumed nothing bad could be done by a lady. Everything bad or good could be done only by a man.
The code was an insulting one for all the women in disguise. To achieve gender-equality, the women must be ready to face the heat of the society too. If they want the prestige & status of men, they should be ready to shoulder the responsibilities & the charges of them too.
Hence, I'm happy that SC scraped down IPC 497 as 497 exhibited gender-bias & assured unequal treatment towards men & women. Women were actually being treated as dolls & hence, were given complete freedom without any responsibility.
Today's verdict would set the men also free from the charges of adultery.
So it can be said that today's verdict on IPC 497 has established equality between men & women at least in one aspect. Earlier no lady were being punished for having extra-marital affairs. From now on, even no man would be punished for the same.
However, the husband can always file a divorce suit against the wife for being disloyal towards him & vice versa.
There may be some people aggrieved by today's verdict on IPC 497 apprehending the loss of legitimate, exclusive right of a husband on his wife's sexuality & I don't disagree with them. But we should remember that though the right of a wife on her husband's sexuality too is equally justified & supposed to be exclusive, it was denied since the last 150 years. Therefore, would it be unfair for the husbands too to sacrifice similar legitimate right on his wife's sexuality & leave it on his wife's sense of values at least for the time being till our legislators could manage to enact a new law free from any gender bias?
So, am I completely satisfied with the resultant effect of today's verdict?
No. I would be happy if the Government re-enacts the law as follows:
"497.Adultery.- whoever has sexual intercourse with a person who is and whom he / she knows or has reason to believe to be the spouse of another person, without the consent or connivance of that person, such sexual intercourse not amounting to any other offence under this code, 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 said spouse shall also be punishable as an abettor upto the same extent."
If this be the new law, then that would not only be free from any bias but also would be able to address the offence called adultery in totality & thus be a giant leap towards gender equality. However, I think Indian society is lagging long behind from that type of a law as yet & hence, we may have to wait.
Does it mean that extra-marital affairs got legal permission?
Not at all. This verdict doesn't legalise extra-marital affairs, neither does it allow everyone to practice extra-marital affairs. They still remain illegal. The wife / husband, on feeling being cheated, can always file a divorce suit against the corresponding spouse. Faith n loyalty in the Institution called marriage still remain legally necessary & indispensable. To remain happily married, couples still need to remain completely faithful towards each other.
Then what's the change that happened?
Nothing but the court addressed that loving anyone else too in spite of being married falls under a person's personal ambit. It's not really punishable by law, particularly when the penal law fails to address a problem or an offence in totality & tries to enact penal provisions on the basis of gender discrimination. I'll explain in details how IPC 497 was discriminative later in this blog. The court scrapped down the provision of punishment of men on this ground.
The SC could have taken either of the two decisions.
1. Could have made both the man & woman equally punishable for adultery
2. Could have relieved the men too from being punished on this ground.
The court took the 2nd decision addressing the natural polygamous, polyandrous nature of human beings.
Further though the SC, even if they wanted, couldn't have taken the first decision because SC is not the law making authority. Hence, for an action, which hasn't been enumerated as a penal offence at all by the Law enacted by law makers, SC couldn't have suggested any punishment. It is the sole prerogative of the legislature to take such a decision and SC in its order never prevented them from taking such decisions afresh through enactment of new law.
But that doesn't at all mean that SC legalised extra-marital affairs. They're still illegal & may be treated as offence, but not penal ones.
What was IPC 497?
Quoting from IPC "497.Adultery.- 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."
What was IPC 497 for simple understanding?
If a married woman involved herself with another man (married / unmarried) her husband couldn't have complained against his wife & demanded punishment for her but could have complained against the man with whom his wife got involved. Then too, the man used to be punished. The wife was never considered to be a human being enough to be punished. However, I also appreciate that keeping the women out of the claws of punishment was perhaps relevant & required from the perspective of time when the law was first written.
On the other hand, if a married man involves himself with another woman, (married / unmarried) not only that his wife couldn't have complained against her husband & demanded punishment for him but also couldn't have complained against the woman with whom her husband got involved.
Thus the possible cases of Adultery are as follows:
CASE 1: A 'married woman' involved herself with 'another man'.
a) The 'married woman' was not punishable by IPC 497.
b) 'Another man' was punishable under IPC 497 against complaint of 'married woman's' husband.
CASE 2: A 'married man' involved himself with 'another woman'.
a) The 'married man' was not punishable by IPC 497.
b) 'Another woman' was also not punishable under IPC 497 as if the question of any complaint of 'married man's' wife doesn't arise at all.
Now isn't it true that IPC 497 was apparently discriminative not only in the eye of the Honourable Court or any person with legal knowledge but also to any layman like me having only legal common sense.
Not only that, there remained even further inequality of treatment towards men & women. If a man could have been sent to the jail because he involved himself with another woman who was wife of some other person, why couldn't the married woman too been sent there on the same ground? Why this এক যাত্রায় পৃথক ফল?
Please note, SC raised the question on hearing the case that if adultery was a punishable offence for men, why won't it be punishable for women too?
This means, because of a lady in between, one man could have heckled another. And even if the lady was the prime cause, she was not punishable by law. Even if the wife, by her own intentions, involved herself into some illicit relationship with some other man, then also on being charged & proven, the MAN with whom she involved herself used to be punished whereas the WIFE used to be considered as just 'dhoa tulsipata' (means flawless).
A highly patriarchal code indeed that assumed nothing bad could be done by a lady. Everything bad or good could be done only by a man.
The code was an insulting one for all the women in disguise. To achieve gender-equality, the women must be ready to face the heat of the society too. If they want the prestige & status of men, they should be ready to shoulder the responsibilities & the charges of them too.
Hence, I'm happy that SC scraped down IPC 497 as 497 exhibited gender-bias & assured unequal treatment towards men & women. Women were actually being treated as dolls & hence, were given complete freedom without any responsibility.
Today's verdict would set the men also free from the charges of adultery.
So it can be said that today's verdict on IPC 497 has established equality between men & women at least in one aspect. Earlier no lady were being punished for having extra-marital affairs. From now on, even no man would be punished for the same.
However, the husband can always file a divorce suit against the wife for being disloyal towards him & vice versa.
There may be some people aggrieved by today's verdict on IPC 497 apprehending the loss of legitimate, exclusive right of a husband on his wife's sexuality & I don't disagree with them. But we should remember that though the right of a wife on her husband's sexuality too is equally justified & supposed to be exclusive, it was denied since the last 150 years. Therefore, would it be unfair for the husbands too to sacrifice similar legitimate right on his wife's sexuality & leave it on his wife's sense of values at least for the time being till our legislators could manage to enact a new law free from any gender bias?
So, am I completely satisfied with the resultant effect of today's verdict?
No. I would be happy if the Government re-enacts the law as follows:
"497.Adultery.- whoever has sexual intercourse with a person who is and whom he / she knows or has reason to believe to be the spouse of another person, without the consent or connivance of that person, such sexual intercourse not amounting to any other offence under this code, 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 said spouse shall also be punishable as an abettor upto the same extent."
If this be the new law, then that would not only be free from any bias but also would be able to address the offence called adultery in totality & thus be a giant leap towards gender equality. However, I think Indian society is lagging long behind from that type of a law as yet & hence, we may have to wait.
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