By: Varun Agarwal
For innumerable centuries, various factors have nurtured the patriarchal mentality in India. Be it Yudhisthira using his wife as a wager or Rama demanding Sita’s Agni-pariksha, mythology has greatly glorified the concept of male dominance. The practice of Sati and Dowry has been prevalent throughout the history of India. Under the guise of the ‘Will of the Supreme’, the Personal Laws have also promoted inequality among men and women.
It is argued by Historian James Mill in his publication ‘The History of British India’ that the Indian civilisation has remained unchanged since its genesis and due to lack of individualism and rationalism, women are in the state of extreme degradation. He argued in favour of British rule claiming that it provided a positive intervention and protection to the women of India. However, the British enacted laws in India depict a contrary picture. The Indian Penal Code, 1860 (hereinafter IPC), a British enactment, had various gender biased provisions in its original form which still exist. One such provision of IPC, Section 497, treated adultery as a criminal offence and only prosecuted men for it.
The provision has recently been declared unconstitutional by a five-judge Supreme Court bench in Joseph Shine v Union of India (hereinafter ‘Joseph Shine‘). Abolition of this colonial relic of the Victorian era is considered as a huge step towards a gender-neutral society. However, the battle is just half won as Section 498 of IPC which provides for prosecution of men for enticing or taking away a married woman from her husband’s care still exists. Therefore, the central issue to be examined here is the striking similarity between Section 497 and Section 498 of IPC; the latter still makes it possible to prosecute a man for having consensual sexual intercourse with someone’s wife. During the course of this post, the author will highlight the provisions which were the grounds for declaring Section 497 unconstitutional. Following this, the author will pinpoint the presence of similar provisions in Section 498 and lastly conclude by arguing that Section 498 defeats the purpose of Joseph Shine Judgement.
SECTION 498: A HANDBRAKE FOR THE ENGINE OF PROGRESS
For a better understanding of the issue at hand, it is imperative to have a cursory reading of the provisions being discussed:
Section 497 – “Whoever has sexual intercourse with a person who is and whom he knows or has a 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…an abettor”
Section 498 – “Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment… with both”
In S Varadarajan v State of Madras (hereinafter ‘S Varadarajan‘), the Supreme Court acknowledged that the above-mentioned laws were enacted to further the rights of a husband over his wife. The said provisions are outcomes of an archaic and patriarchic approach, which nurtures woman subordination and husband’s superiority in a marriage. It is evident from Joseph Shine that the judiciary is inclined towards transformative constitutionalism, where it wants to abolish the wrongs of the past and guide the society towards a better and brighter future. However, as mentioned above, this step is in vain as Section 498, which is still applicable.
COMPARATIVE ANALYSIS OF COMMON PROVISIONS
A comparative analysis of the provisions of the Sections in discussion brings out the issue in clear light.
1. Only men can be prosecuted as an adulterer and married women are taken as victims
The Second Law Commission while incorporating Section 497 reasoned that polygamy is an everyday affair and a wife is socially conditioned to accept her husband’s adulterous relationships. Some additional reasons for exempting women from prosecution were, a) Men are the seducers, and women are the hapless victims b) Adultery is trespassing of man’s marital property i.e. his wife. This exemption was upheld by Supreme Court of India (hereinafter ‘the Court’) in Yusuf Abdul Aziz v The State of Bombay, where the Court stated that Section 497 is a special provision made for the benefit of women, therefore valid despite being discriminatory under Article 15(1). However, in Joseph Shine, the Court clearly established that adultery is not protected from criminal ramifications and will not be covered under Article 15(3) which allows the State to makes special provision for women. The Court declared that Marriage is an institution which is built on two pillars with equal responsibility. Further, Article 15(3) is only applicable to post-Constitution laws, an ancient provision will not be protected under it.
Thus, if we keep the above-mentioned view in mind then it is evident that Section 498 is also a gender-biased law and here also women are treated as hapless victims or the property of men which can be trespassed. Therefore, this palpable discrimination should not be protected under Article 15(3) since Section 498 is also a pre-Constitution law. Moreover, its unconstitutionality can be asserted through Anuj Garg v Hotel Association of India, where the SC made it clear that laws which are professed for the benefit of women, is based on sexual stereotypes, are unconstitutional.
2. Consent of women is irrelevant, and Section 497 becomes inapplicable if it is established that the husband connived or consented to adulterous act
The inherent paternalistic and patriarchal nature of this Section 497 is majorly formed in this characteristic. Regarding this, the Court observed in Joseph Shine that Section 497 deprives a woman of her sexual autonomy and she is entirely subjugated to the will of her husband. There should be no intervention in the acts of two consenting adults as they fall within the “the private protective sphere and realm of individual choice and autonomy”. If a woman of an unrepairable broken marriage engages in a consensual sexual intercourse outside marriage and then a person who is a party in that activity cannot be criminalized.
The provision “takes or entices away” of Section 498 does not mean forcefully, it means assistance to physical or influence on the wife to get her away from her husband. In Ramaswami Udayar v Raju Udayar it was made clear that “a woman’s free will, or her being a free agent, or walking out of her house of her own accord are absolutely irrelevant and immaterial for the offence under Section 498”.
In Emperor v Ramnarayan Baburao Kapor, it was stated that the Provision covers every form of elopement irrespective of the fact whether the first proposal came from the man or woman. Therefore, if a woman willingly goes away with a man or tempts him first, it won’t diminish the criminality of the man. The only thing that that needs to be proved is that there is illicit intercourse and husband is deprived of the control over his wife. Besides Section 498, Section 361 of IPC also uses the phrase ‘takes or entices away’, in regard to kidnapping from lawful guardianship, but the interpretation is different for both. In S Varadarajan, the apex court held that when a minor girl who is on the verge of attaining majority elopes with her lover and marries him with her own will, the lover cannot be held for taking or enticing away, unless substantial evidence of the force of blandishment is shown. S Varadarajan protects a man from false kidnapping allegations which he is charged with even when the girl willfully elopes. If the court had extended a similar interpretation to 498, its criminal nature would have been justified. But in the same case after interpreting Section 361 the court asserted that the interpretation cannot be extended to Section 498. Consequently, the section deprives the woman of her sexual autonomy which the apex court tried to restore in Joseph Shine.
3. Only husband or the person in whose care the husband has left his wife can file a complaint under Section 497
Section 198(2) of the Code of Criminal Procedure deems husband of the woman as aggrieved by the offence committed under Section 497 IPC and in the absence of the husband, some person who had the care of her on his behalf. Supreme Court declared Section 198(2) unconstitutional to the extent it applies to Section 497. The court opined that the definition of the aggrieved person does not cover woman, hence it is absolutely and manifestly arbitrary. It confers a license on the husband to deal with the wife as he likes which is extremely excessive and disproportionate.
Interestingly, Section 198(2) also covers Section 498 and similarly states that only the husband or the person in whose care the husband left the wife can file a complaint. Women are left out of the ambit of the aggrieved person for Section 498 as well.
4. A woman cannot prosecute another woman for having sexual intercourse with her husband
Supreme Court held that this provision cannot pass the test of intelligible differentia under Article 14. It was argued in Smt Sowmithri Vishnu v Union of India that the discrimination is done with the intention of woman subordination. Sexual intercourse with someone’s wife is deemed equivalent to trespass and theft of property. In Joseph Shine, Justice Chandrachud opined that this provision is all about husband’s exclusive access to his wife’s sexuality, it does not work with the intention to preserve fidelity as husbands having sexual intercourse outside marriage are not allowed to be prosecuted. A similar provision is also available in Section 498 and it also possesses all the above-mentioned patriarchal characteristics. It gives men the exclusive right to prosecute any person for taking or enticing away his wife.
The provision treats women as commodity or property owned by a man which, if taken from his control amounts to a criminal offence, just like moving property out of the possession of a person amounts to theft. Moreover, the control does not have to be an exclusively physical one, even financial care is enough to prove control. Therefore, this exclusive and absolute control of the husband over his wife directly contradicts the principles of equality and women empowerment.
Joseph Shine Judgement decriminalised adultery because it discriminates against women, promotes patriarchy and paternalism, violates privacy by allowing interference of court in the activities of two consenting adults, and treats women as nothing more than husband’s property. Joseph Shine comes as a breath of fresh air, it takes a more liberal approach by giving both men and women sexual autonomy. It allows married men and women to find solace outside marriage if it seems to be void of it. However, as elucidated above, the applicability of Section 498 vitiates the intent of Joseph Shine. It still treats women secondary to their husbands, labels them as their property, and robs them of their sexual autonomy. Besides depriving women their fundamental rights, Section 498 also facilitates husband to still criminally prosecute men for adultery. It won’t be difficult to prove that the husband was deprived of the control over his wife when her will or consent to such deprivation is immaterial. If the view of S Varadarajan was extended to Section 498 of the IPC, then the problem would have been mitigated to some extent but the Judiciary willfully ignored any such step. Therefore, Joseph Shine is nowhere close to wash-off the stain of gender biases that the Indian legal system carries. Legal provisions like Section 498 are still chaining married women’s autonomy and suppressing their confidence to feel independent. Declaring it unconstitutional will have a two-fold impact, firstly, the judgement of Joseph Shine will be strengthened and secondly, married women will be given their long-awaited sexual autonomy and equal status in a marriage, both of which are not privileges but fundamental rights.
 KI Vibhute, PSA Pillai’s Criminal Law (12th edn, LexisNexis 2014) 557.
 ibid 558.
(Varun is currently a student at Dr. Ram Manohar Lohiya National Law University, Lucknow. He is an editor of RMLNLU Law Review and has previously served as an editor of the RMLNLU Law Review Blog. His interest lies in Criminology as well as Public Policy.)