RPC is adhead of IPC

B L Saraf
Once again,    constitutionality of   the    Section 497  Indian Penal   Code    (IPC)    is  on  a test .  Supreme Court has  raised a   question, ” Why penalize only men for adultery  and  treat women  involved in the crime as victims .”  This  question   arose  on   hearing   a petition  challenging   the constitutionality of  Section 497 IPC. Joseph  Shine  has   challenged the provision as ” unjust, illegal and arbitrary and violative    of  citizens fundamental right.”  He has    argued that  Section 497  ” discriminated against the women by holding an erroneous presumption that women are the property of men.  This is   evidenced   by the fact that if adultery is engaged with the consent of the woman’s husband then such act ceases to be an  offence.  It amounts to institutionalized   discrimination.”
On  5th  January,    Supreme Court  referred  it  to the Constitutional Bench of  five   Judges   for  a decision, noting that” though criminal law was based on  gender neutrality,  the concept was absent in Section 497 IPC that criminalized adultery …”
Section 198  (2 )  of Criminal Procedure Code   has also been challenged  which  empowers only  a husband to bring charges  against  the man with whom his wife has committed adultery.  According the petitioner these sections were  discriminatory and violated gender justice as they  denied a husband the right to charge his wife  with adultery  as also a woman the right  to charge her husband with adultery .
In 1985  it was argued   before the Apex Court,  in Sowmithri Vishnu case, that Section 497 gave husband exclusive right as an aggrieved party to prosecute the adulterer in case involving his wife, a similar right has not been conferred on wife to prosecute the woman with whom her husband has committed adultery . Secondly , the provision does not confer any right on the wife to prosecute her husband for adultery . The law does not take into account cases where the husband has sexual relations with an unmarried woman .
However, the three judge bench , relying upon Yusuf Abdul Aziz’s case   of 1954 ,  dismissed these arguments    as having only “emotive appeal.”     Answering   why a wife cannot be prosecuted as an abettor in adultery, Justice Vivian Bose , speaking  for the  bench  said the protection given to a woman under Section 497 is in tune with Article 15 (3) of the Constitution. This Article allows for   making ” special provision which are beneficial  for  the women and children .”
In 1988 two judge bench of the Supreme Court in V. Revathi’s case denied gender   discrimination   in adultery offence   by saying” the  community punishes the outsider who  breaks into the matrimonial home and violates the sanctity of the matrimonial tie by developing illicit relationship with one of the spouses. The erring man alone can be punished and not the erring woman . It does not arm the two spouses to hit each other  with the weapon of criminal law. That is why neither  the husband can  prosecute the wife and send her to jail nor can wife prosecute the husband and send him to jail .”
Supreme Court    intends  to   revisit the   issue   on a   concern  for woman’s independence and   her   identity.  Question posed by the CJI   suggests so,  ” The time has come for the society  to realize that a woman  is equal to her husband in every respect .”   And    asked    does  Section 497 demean a woman   by relegating  her to the level of commodity ?
In  J&K, the debate  to this extent  is  irrelevant.   Ranbir Penal Code (RPC), which   governs penal    jur-isprudence in the state, does not exempt    wife     from   culpability  in offence of adultery.  In   Sections   497   and  498 she  is made   an abettor.  RPC answers much of the concerns expressed by is the Apex Court    about the inadequacy in  Section 197  IPC, in as much as later   exempts woman from prosecution in the offence of adultery.
For  RPC, however,    a   challenging  looms large  should  the Supreme Court    affirm what  it has said in 1954 and    1988  about    leaving  women  out   of the criminality in  Section 197 IPC. In that event we may hear a clamor that  women should be left out in Section 497 RPC as well.
In  Sowmthri case  Supreme Court   held ” …. No grievance can be made that Section does not allow the wife to prosecute the husband. The contemplation of law, evidently, is that wife,who is involved in the illicit relationship with another man,  is    a  victim and not the author of the crime . ..”
At the moment  it may not be a matter of concern  to   us in   J &  K  but  one can’t be oblivious to the situation which may emerge, either way.  If the   view  of Sowmithri case  prevails and decisions rendered in earlier cases  are affirmed  by the Apex Court  in the  pending case, then, provision of  Section 497  RPC, in so far as it  makes the woman an abettor of the offence, will come under a serious cloud. Especially so, in view  of the observation that   “wife, involved in the illicit relationship  with another man, is a victim and not the author of the crime.” A victim can   hardly  be an accused in the same occurrence.
RPC is a  law in the domain of criminal jurisprudence, though its applicability is restricted to  J&K. A question may be asked: can two  laws  aimed at same  purpose but contrasting in material aspect be allowed to remain    on  the statute books   of one  country  ?  Despite  earlier  decisions of the Supreme  Court,  Section497 RPC  has stood  thus far   as it is . Given today’s  activism and level of public awareness,  same cannot be   said should    the Court  affirm its earlier decisions.   Maybe   the Apex Court  follows RPC’s gender neutrality and makes a  participating  woman an abettor  in  Section 497 IPC, as well.
(The author is former Principal District & Sessions Judge)
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