Parliament Panel May Tell Government To Criminalise Adultery Again

New Delhi:

A parliamentary committee is likely to recommend re-criminalisation of the adultery law and criminalisation of non-consensual sex between men, women and/or trans members, as part of an overhaul of colonial-era criminal laws, sources said. The panel is studying three bills to replace the Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act – the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam, respectively.

The bills – tabled by Union Home Minister Amit Shah – were sent to the Standing Committee on Home Affairs, which is headed by BJP MP Brij Lal, for further scrutiny in August with a three-month deadline.

On Friday the committee met but did not adopt a draft report on the bills as opposition members sought a three-month extension. The next meeting will be on November 6.

On Adultery

The draft report is expected to recommend that adultery be made a criminal offence again – either by restoring the law struck down by the Supreme Court in 2018 or passing a new law.

In 2018 a five-member bench ruled “adultery cannot and should not be a crime”. “It can be a ground for a civil offense… for divorce…” then Chief Justice, Dipak Misra, had said, reasoning also that a 163-year-old, colonial-era law followed the invalidated concept of “husband is master of the wife”.

READ |Adultery Not A Crime, “Husband Not Master of Wife,” Says Supreme Court

The law then said that a man who had sex with a married woman – and without her husband’s consent – could face a five-year sentence if convicted. The woman would not be punished.

The report is likely to recommend that the struck-down provision on adultery, when brought back, be made gender-neutral, meaning the man and the woman could face punishment.

The unpublished draft report states: “For the sake of protecting the institution of marriage, this Section (497 of the IPC) should be retained in the Sanhita by making it gender-neutral.”

On Section 377

Meanwhile, the committee reportedly also discussed Section 377 – a British-era provision that criminalised homosexuality, and which was also struck down by the Supreme Court five years ago.

READ |Love, Equally: Homosexuality No Longer A Crime, Says Supreme Court

The committee is expected to recommend to the government, which opposed decriminalisation of both 377 and 497, that “it is mandatory to re-introduce and retain Section 377 of the IPC”. 

The committee argued that although the court had found this section in violation of Articles 14, 15, 19 and 21 of the Constitution, provisions of Section 377 “remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality”. 

“However, now, in the Bharatiya Nyaya Sanhita, no provision for non-consensual sexual offences against male, female, transgender and for bestiality has been made.”

Other recommendations

Other likely recommendations are to increase punishment for deaths due to negligence from six months to five years, and reduce those for unauthorised protests from two years to 12 months.

The committee is also likely to say that the name Indian Penal Code be retained.