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Adultery law must apply equally to men and women: Justice Malimath Committee

August 12, 2003 16:41 IST

Suggesting a radical change in the law on adultery, the Justice Malimath Committee for reforms in the criminal justice system has recommended amendments to provisions of the Indian Penal Code that disallow prosecution of women for the offence.

According to the present law, only a man can be prosecuted for the offence of adultery with the woman being granted immunity from proceedings on account of her position in society.

However, the Committee's report seeks to end, what has often been referred to as the gender bias in the law, by recommending similar treatment of both men and women in such cases.

"The object of this section (Section 497 of the IPC) is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband)," the Committee said in its report submitted to the Centre.

It therefore suggested that "section 497 be suitably amended to the effect that whosoever has sexual intercourse with the spouse of any other person is guilty of adultery."

The Fifth Law Commission had in 1971 recommended similar changes, though it was never implemented.

Ever since the law on adultery came into force, it has been subjected to much criticism with men crying hoarse that it amounted to gender bias and was violative of the right to equality guaranteed by the Constitution.

However, the Malimath Committee report is silent on another controversial provision of section 497, which says that prosecution in such cases shall be initiated on the complaint of the husband of the adulterous woman.

The provision was challenged in the Supreme Court with the petitioner arguing that depriving a woman of the right to proceed against an adulterous husband was a classic instance of 'gender discrimination, legislative despotism and male chauvinism'.

However, the Supreme Court did not agree.

The IPC, when in took form in 1860, was silent on the punishment for adultery with Lord Macaulay observing, "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 circumstances he referred to included child marriage and polygamy. Macaulay, hence, advised that it would be enough to treat it as a civil injury.

However, the Second Law Commission thought otherwise and said it would not be proper to leave the offence out of the IPC and suggested that only the man be punished, again keeping in mind the condition of women in the country.

In 1951, one Yusuf Abdul Aziz challenged the constitutional validity of the provision. However, Bombay high court chief justice M C Chagla had upheld the provision saying the Constitution permitted such special legislation for women.

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