Criminalise Adultery In Gender Neutral Manner In New Penal Code, Recommends Parliamentary Panel

The Parliamentary Standing Committee on Home Affairs has recommended that the offence of adultery be retained in the Bharatiya Nyaya Sanhita, the new bill which was introduced by the Union Government seeking to replace the Indian Penal Code.

Section 497 of the Indian Penal Code, which criminalised adultery, was struck down as unconstitutional by a Constitution Bench of the Supreme Court in Joseph Shine v.Union of India (2018), on the ground that it was discriminatory towards women and was perpetuating gender stereotypes and diminishing the dignity of women, resulting in the violations of Articles 14, 15 and 21. The Court had noted that the provision was treating a wife like a "property" of the husband and only penalised the man, disregarding the autonomy of a woman.

The Committee was of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity.

"For the sake of protecting the institution of marriage, this section should be retained in the Sanhita by making it gender neutral," it recommended.

Opposition MP P Chidambaram expressed dissent to this proposal by saying :

"Adultery should not be a crime. It is an offence against marriage which is a compact between two persons; if the compact is broken, the aggrieved spouse may sue for divorce or civil damages. To raise marriage to the level of a sacrament is outdated. In any event, a marriage concerns only two persons and not society at large. The State has no business to enter into their lives and punish the alleged wrongdoer."

Retain Section 377 IPC to penalise non-consensual acts

The Committee also recommended that Section 377 of the Indian Penal Code, which was struck down by the Supreme Court in Navtej Johar v. Union of India to the extent it criminalised homosexual sex between consensual adults, be retained in the new bill to deal with non-consensual acts.

It noted that in the Bharatiya Nyaya Sanhita, no provision for non-consensual sexual offence against male, female, transgender and for bestiality has been made. 

"The Committee feels that to align with the objectives stated in the BNS’s Statement of Objects and Reasons, which inter-alia highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain the section 377 of the IPC. The Committee therefore recommends the Government to include section 377 of IPC, in the proposed law."

The Committee also said that the naming the bill in Hindi will not violate Article 348 of the Constitution as its text is in English.

Also, while lauding the Bill for introducing 'community service' as a mode of punishment for minor offences, the Committee expressed the view that the term 'community service' should be properly defined. It further suggested that a provision may also be made with regard to making a person responsible to supervise the punishment given in the form of community service. 

It also recommended to rephrase the word mental illness as a defence of an accused to unsound mind, by pointing out argued that medical insanity cannot be a ground for acquittal and legal insanity is required to be proved.

"..the term mental illness is too wide in its import in comparison to unsound mind, as it appears to include even mood swings or voluntary intoxication within its ambit," it said.

"The Committee accordingly recommends that the the word ‘mental illness’ in this Sanhita may be changed to ‘unsound mind’ wherever it occurs, as the present one can create problems during the trial stage as an accused person can simply show that he was under the influence of alcohol or drugs during the time of the commission of crime and he cannot be prosecuted even if he has committed the crime without intoxication."

On the last day of the monsoon session, the Central Government introduced three bills in the Lok Sabha today to repeal and replace Indian Penal Code, the Code of Criminal Procedure (CrPC) and the Indian Evidence Act.