October 2, 2022

History of adultery law in England and India

Supreme Court struck down the section 497 of IPC which was providing punishment for adultery, in Joseph Shine v. Union Of India (2018). After this, its reading remained just for academic interest. But, reading of such section gives us the insight of English influence on Indian Laws, and the conditions and situations which affects the Indian law and accordingly modify English law in Indian’s Conditions.

The word adultery[1] derives its origin from the French word avoutre, which has evolved from the Latin verb adulterium which means to corrupt.

The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as adultery.

This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the property of her husband; and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an abettor, even though the relationship was consensual.

Adultery laws in England

In sixth-century Anglo-Saxon England, the law created elaborate tables of composition which the offended husband could accept in lieu of blood vengeance. These tables were schemes for payment of compensation depending upon the degree of harm caused to the cuckolded husband.

However, as Christianity spread in England, adultery became morally wrong and therefore, a sin, as well as a wrong against the husband.

Post 1066, the Normans who took over, viewed adultery not as a crime against the State, but rather as an ecclesiastical offence dealt with by the Church. The common law of England prescribed an action in tort for loss of consortium based on the property interest a husband had in his wife. Thus, the action for conversation, which is compensation or damages, usually represented a first step in obtaining divorce in medieval England.

In fact, adultery was the only ground for divorce in seventeenth-century England, which had to be granted only by Parliament. Interestingly enough, it was only after King Charles I was beheaded in 1649, that adultery became a capital offence in Cromwell’s Puritanical England in the year 1650, which was nullified as soon as King Charles II came back in what was known as the restoration of the monarchy.

It will be seen therefore, that in England, except for an eleven-year period when England was ruled by the Puritans, adultery was never considered to be a criminal offence. Adultery was only a tort for which damages were payable to the husband, given his proprietary interest in his wife.

THE DOCTRINE OF COVERTURE

Adultery, as an offence, was not a crime under Common Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over sacramental matters that included marriage, separation, legitimacy, succession to personal property, etc.

In England, coverture determined the rights of married women, under Common Law. A feme sole transformed into a feme covert after marriage. Feme covert was based on the doctrine of Unity of Persons i.e. the husband and wife were a single legal identity. This was based on notions of biblical morality that a husband and wife were one in flesh and blood. The effect of coverture was that a married woman’s legal rights were subsumed by that of her husband.

A married woman could not own property, execute legal documents, enter into a contract, or obtain an education against her husband’s wishes, or retain a salary for herself.

The principle of coverture was described in William Blackstone’s Commentaries on the Laws of England as follows:[2]

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.

Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquires by the marriage.

For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all contracts made between husband and wife, when single, are voided by the intermarriage.”

On this basis, a wife did not have an individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for, or against each other.

Medieval legal treatises, such as the Bracton, described the nature of coverture and its impact on married women’s legal actions. Bracton states that husbands wielded power over their wives, being their rulers and custodians of their property. The institution of marriage came under the jurisdiction of ecclesiastical courts. It made wives live in the shadow of their husbands, virtually invisible to the law.

The principle of coverture subsisted throughout the marriage of the couple. It was not possible to obtain a divorce through civil courts, which refused to invade into the jurisdiction of the church. Adultery was the only ground available to obtain divorce.

An allied consequence of the wife’s coverture was that she was not legally able to enter into a contract. Apart from anything else, she had no property against which to enforce any order against her for payment under a contract; so it was only a small step for the law to conclude that she did not have the ability to enter into the contract in the first place. If, however, the wife went into a shop and ordered goods, say of food or clothing, which the law regarded as necessary for the household, the law presumed, unless the husband proved to the contrary, that she had entered into the contract authorised agent. So the shopkeeper could sue him for the price if the wife had obtained the goods on credit.

In the seventeenth century there was a development in the law relating to this so-called agency of necessity. It was an attempt to serve the needs of wives whose husbands had deserted them.

The law began to say that, if a deserted wife had not committed adultery, she could buy from the shopkeeper all such goods as were necessary for her and, even if (as was highly likely) the husband had not authorised her to buy them, he was liable to pay the shopkeeper for them. But the shopkeeper had a problem. How was he to know whether the wife at the counter had been deserted and had not committed adultery? Sometimes a husband even placed a notice in the local newspaper to the effect, true or untrue, that his wife had deserted him or had committed adultery and that accordingly he would not be liable to pay for her purchase of necessaries.

Criminal Conversation

The remnants of coverture sowed the seeds for the introduction of Criminal Conversation as an actionable tort by a husband against his wife’s paramour in England.

Criminal Conversation as a tort, gave a married man the right to claim damages against the man who had entered into a sexual relationship with his wife. The consent of the wife to the relationship, did not affect the entitlement of her husband to sue.

The legal position of matrimonial wrongs underwent a significant change with the passing of the Matrimonial Causes Act, 1857 in England. Section 59 of this Act abolished the Common Law action for criminal conversation. Section 33 empowered the Courts to award damages to the husband of the paramour for adultery. The claim for damages for adultery was to be tried on the same principles, and in the same manner, as actions for criminal conversation which were formerly tried at Common Law.

Matrimonial Causes Act, 1923

Gender equality between the spouses came to be recognised in some measure in England, with the passing of the Matrimonial Causes Act, 1923 which made adultery a ground for divorce, available to both spouses, instead of only the husband of the adulterous wife. The right of the husband to claim damages from his wife’s paramour came to be abolished by The Law Reform (Miscellaneous Provisions) Act of 1970 on January 1, 1971.

In England, adultery has always been a civil wrong, and not a penal offence.

Adultery Laws in India

The Indo-Brahmanic traditions prevalent in India mandated the chastity of a woman to be regarded as her prime virtue, to be closely guarded to ensure the purity of the male bloodline. The objective was not only to protect the bodily integrity of the woman, but to ensure that the husband retains control over her sexuality, confirming her purity in order to ensure the purity of his own bloodline.

The first draft of the I.P.C. released by the Law Commission of India in 1837 did not include adultery as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence.

The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, who were of the opinion that the existing remedy for adultery under Common Law would be insufficient for the poor natives, who would have no recourse against the paramour of their wife. The debate that took place in order to determine whether adultery should be a criminal offence in India was recorded in The Second Report on the Indian Penal Code prepared by the Indian Law Commissioners

The existing laws for the punishment of adultery were considered to be altogether inefficacious for preventing the injured husband from taking matters into his own hands. The Law Commissioners considered that by not treating adultery as a criminal offence, it may give sanction to immorality. Law commission was of the view-

“Nobody proposes that adultery should be punished with a severity at all proportioned to the misery which it produces in cases where there is strong affection and a quick sensibility to family honour. We apprehend that among the higher classes in this country nothing short of death would be considered as an expiation for such a wrong. In such a state of society we think it far better that the law should inflict no punishment than that it should inflict a punishment which would be regarded as absurdly and immorally lenient.”

The Law Commissioners considered the plight of women in this country, which was much worse than that of women in France and England. Note Q (surpa) records this as the reason for not punishing women for the offence of adultery. The relevant extract of Note Q is reproduced herein below:

“There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest interests of the human race are closely connected with the chastity of women, and the sacredness of the nuptial contract, we cannot but feel that 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 condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still children. They are often neglected for other wives while still young. They share the attention of a husband with several rivals.

To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain operation of education and of time.”

In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955. It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence.

Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the Hindu Code, so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for divorce in Hindu Law. Further, the real heart of this archaic law discloses itself.

Joseph Shine Judgement

In Joseph Shine Case (2018), Supreme Court struck down the section 497 which provided the offence of ‘Adultery’. In the said case, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitution of India.

Supreme Court said that,

“On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted.

As we notice, the provision treats a married woman as a property of the husband. It is interesting to note that Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow.

The dictionary meaning of adultery is that a married person commits adultery if he has sex with a woman with whom he has not entered into wedlock. As per Black’s Law Dictionary, adultery is the voluntary sexual intercourse of a married person with a person other than the offenders husband or wife. However, the provision has made it a restricted one as a consequence of which a man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of Section 497 IPC. Section 198 CrPC deals with a person aggrieved. Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.

Reference

Joseph Shine v. Union Of India (2018)


[1] The New international Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopaedic Edition, Trident Press International (1996 Edn.) at page 21

[2] Blackstones Commentaries on the Laws of England, Books III & IV (8th Edn.), 1778