• Divah Sprik Law Notes


India has come a long way since its independence in 1947, but unfortunately, is still carrying the burden of several archaic and obsolete laws from years long gone by. One of these is the law relating to Adultery. Since its inception in 1847, the ideas of morality, ethics and culture have evolved multifold, but somehow, we have continued to stick to this century old law.

Let’s begin by taking a note of these much-debated provisions of law:

Section 497 of the Indian Penal Code, 1860: Adultery—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

and Section 198 of the Code of Criminal Procedure, 1973: Only the husband of the married woman, who had sexual intercourse with another man, could file a case against the male who indulged in the act with her.

In the simplest of words, if the wife has sexual intercourse with another man, without the consent of her husband, the husband can take legal action against that man. And, in case, the husband has sexual intercourse with another woman, without his wife’s consent, well, no one gets punished.

Now, let’s examine the intent behind incorporating this law:

In 1847, when the Law Commission of India was given the responsibility of drafting a new penal code, it rendered liable only the male offender, keeping in mind, “the condition of the women in this country”, and the law’s duty to protect it.

From time to time, this provision has been challenged at various stages, sometimes, on the basis of equality and sometimes on the basis of gender bias: In 1954 (Yusuf Abdul Aziz v. The State of Bombay), a Constitutional Bench held then that Section 497 did not violate the Right to Equality as enshrined in Articles 14 and 15 of the Constitution of India. It held that sex is a sound classification and although there can be no discrimination on such account, the Constitution itself provides for special provisions with regard to women and children. Thus, Articles 14 and Article 15 read together validate Section 497 of the IPC.

Again, in 1985 (Sowmithri Vishnu v. Union of India), it was contended that the law was gender-biased. It was held by the Apex Court that despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought, and therefore, has no agency. This judgment also goes on to essentially say that if a man’s property is defiled by another, the man can punish the offender, hence, reducing the status of wives as mere properties of husbands.

At this stage, I am sure you are wondering how inconsequential an act of Adultery is in the eyes of law, but that is far from the truth. In order to dissuade people from committing adultery and indirectly punish the Adulterer, Adultery has been covered under the Hindu Marriage Act:

  • Adultery, if proved, can be considered to be a unilateral condition for divorce;

  • The Adulterous spouse shall forfeit the right to receive any maintenance, though, Child support can still be demanded under existing rules.

The reasoning behind these provisions is that once the relationship is beyond the point when one of the spouses decides to cheat; there is no point in forcing them to stay together, even for the child’s sake.

  • It’s time we scrutinize and point out the deep-seated flaws of this provision:

  • The position of women has changed drastically in India in the last century and it’s high time, women start being treated as independent persons with a mind and identity of their own and not just as a mere property of the husband.

  • The Adulterer, be it the husband or the wife, shall take responsibility of their actions, and should be held equally responsible for committing this offence, on the same level as that of the wife’s boyfriend.

  • The wife shall be allowed to defend her boyfriend in court, if she so wishes.

  • The husband/ wife shall have the right to bring charges against the adulterous spouse.

  • The blanket protection should be lifted from the women which treats them as victims only, in case they commit Adultery. The grant of this special protection should depend from case from to case.

Now, once again, after decades, this law has been challenged before the Hon’ble Supreme Court of India by means of a PIL and a Constitutional Bench will examine the constitutionality of Section 497, IPC. Either Adultery should be completely criminalized for both adulterous parties, be it a man or a woman, or it should be completely decriminalized. It is very important to remember here that legalizing Adultery is not the same as permitting and encouraging Adultery but merely, withdrawing it from the scope of a punishable offence.

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