What is apparent on a cursory reading of these ingredients is that a married man, who has sexual intercourse 24 Id, with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery. The consent of the woman committing adultery is material only for showing that the offence is not another offence, namely, rape. The background in which this provision was enacted now needs to be stated. 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
35 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 when consent or connivance of the married woman‘s husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the
chattel or is licensed to use the chattel by the ―licensor‖, namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has ‗seduced‘ her, she being his victim.
What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with 36 which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today‘s day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary. That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1, as follows Manifest arbitrariness.
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