Adultery law lowers the dignity of women, needs to be revisited

Parmanand Pandey

It is easy to allege about adultery but really very difficult to prove. The conviction rate in adultery cases is ‘next to zero, because most cases are filed for the purpose of securing a divorce and are not pursued beyond that. It is considered to be a cruelty by the husband on the wife but not the vice versa. Thus, it is not based on gender equality. However, Supreme Court and other High Courts are now crystallising the adultery cases by pronouncing that to have the extra marital cannot termed to cruelty. Let us first see what section 497 says, “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.” Section 497 has to be read with section 498 of the IPC which says, ‘whoever takes or entices away any woman who is and whom he knows or has reason to believe to be wife of other man, from that man, or from any person having the care of her on behalf of that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person , or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Conscientious people have been raising this question as to why a woman is still treated like chattel although she has made giant strides in all fields.  Even if a married woman seduces a man to have sexual intercourse with her betraying in the most her own husband she is not even slightly punished or even fined. Why is it that only the man who has to go to jail for a term of up to five years? This law of adultery is more than 150 years old and therefore no right person in his or her senses would like to retain it in the present form. This section 497 of the Indian Penal Code wrongly assumes a woman to be incapable of having a sound mind and exempts her from punishment even though she herself may lure a man and prompt him to have sexual relations with her with her own free consent. Does it not appear to be strange in the twenty first century that a woman can be adulterous but she cannot be prosecuted? On the one hand, it gives a blank cheque to a woman to misuse it but on the other hand, her position is no better than that of the property of the husband. Why is it that a married woman can indulge in sexual relations with as many men as she likes and yet is not held liable in anyway? Why is it that a woman is treated as personal property of the husband under our law?

Why is it that a woman who after getting educated from highly reputed educational hubs, getting a top corporate or government job like IAS, IPS etc.; is still considered incapable as a person and therefore in spite of being married and sleeping with some person other than her husband is not punishable under IPC? How can this be justified by any sane person? How can a woman who betrays the unflinching faith of her husband and sleeps with some other person be allowed to escape unpunished? In Pinakin Mahipatray Rawal Vs State of Gujarat, the Supreme court said, that Marital relationship means the legally protected marital interest of one spouse to another which include marital  obligation  to  another  like companionship,  living  under  the  same  roof,  sexual relation and   the exclusive enjoyment of them, to have children, their  up-bringing,  services in the home, support, affection, love,  liking  and  so  on.   Extra-marital relationship as such is not defined in the IPC.   The court said that merely being “intimate” with another woman is not sufficient ground for a man to be held guilty of inflicting cruelty on his wife on the charge of failing to discharge his marital obligations. The ruling came in a case where the wife committed suicide suspecting the husband of intimacy with a woman colleague in office. The trial court and the Gujarat high court held him guilty under Section 498A for causing cruelty to his wife and under Section 306 of IPC for abetting suicide.  “Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of section 498A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life,” the bench said.   Following the ratio decidendi of K.V. Prakash Babu Vs State of Karnataka, the Supreme Court said that ‘we intend to make it clear that if the husband gets involved in an extra-marital affair that may not in all circumstances invite conviction under Section 306 of the IPC but definitely that can be a ground for divorce or other reliefs in a matrimonial dispute under other enactments’.  Similarly, the Delhi High Court has also termed the adultery charge very painful for the spouse and has therefore granted divorce on this ground in the case Harjit Kaur Vs Surinder Singh.

It is perplexing that the laws on adultery only criminalise a man having sex with a married woman. The reason for this could lie in the genealogy of the word ‘adultery,’ which finds its root in ‘adulterate’ — to make something impure. It isn’t just the patriarchal language of the two laws that make them such a prickly issue: it’s also that they have been understood by lawyers and courts in a patriarchal, regressive way.

In Alamgiri vs State of Bihar, the Supreme Court found that “The gist of the offence under Section 498 appears to be the deprivation of the husband of his custody and his proper control over his wife with the object of having illicit intercourse with her.” It also said, ‘The consent of the wife to deprive her husband of his proper control over her would not be material.’ In V Revathi vs Union of India, the Supreme Court held that the man is always the seducer. In Yusuf Abdul Aziz vs The State of Bombay, the constitutionality of Section 497 was questioned on the grounds that it violated gender equality, as promised by Articles 14 and 15 of the Constitution. The Supreme Court found the section to be constitutional. Years later it again came up before the Supreme Court on the same grounds in Sowmithri Vishnu vs Union of India when the Court looked into the meaning and purpose of the law more closely. It said, “It is commonly accepted that it is the man who is the seducer and not the woman.” It also said, “The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime,” and that adultery is “an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is.” The Court went on to say, “The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another.”

It is high time that this law is revisited even in India and amended to meet the present circumstances. In France, the wife is punishable with a minimum term of three months to a maximum of two years but discretion rests with the husband to terminate the sentence and accept her again as his wife. The adulterer is also similarly punished. It must be noted here that in Malaysia, Hong Kong and Singapore and many other countries adultery is not punishable at all. In Pakistan and most Islamic countries, adultery can be punishable with death and very harsh punishment is inflicted. In most of the states of USA it is either not punishable or both the parties indulging in adultery are equally punished and there is no gender discrimination. In Philippines, it is the married woman who is alone held accountable. Will our law makers think of enacting the law that is more in tune with the times for upholding the dignity of women at par with men as it is the crying need of the hour?


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