- What is Adultery?
- Adultery law in India
- Why in news?
- What’s the issue?
- What Section 497 of IPC says?
- What Section 198(2) CrPC says?
- Argument in favour of the present law
- Argument against the present law
- Law Commissions’ views
- Views on adultery
- Way ahead
Adultery Law in India: Why punish married men alone for adultery?
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What is Adultery?
- Adultery is a voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner
- Adultery is at best a violation of the terms of agreement between a married couple.
Adultery law in India
- Section 497 of the Indian Penal Code deals with Adultery.
- As per the Indian law, a woman cannot be punished for the offence of adultery. Only a man who has consensual sexual intercourse with the wife of another man without his consent can be punished under this offense in India.
- If someone “lives in adultery”, the partner can file for divorce.
Why in news?
- The Supreme Court agreed to examine the constitutional validity of a 157-year-old ‘gender discriminatory’ provision in Indian Penal Code which punishes a married man for adultery for consensual sexual relations with another man’s wife.
What’s the issue?
- The court is hearing a petition challenging the constitutionality of Section 497 IPC read with Section 198(2) of the CrPC.
- The petition says, Section 497 IPC is unconstitutional as it discriminates against men and violates Article 14, 15 and 21.
What Section 497 of IPC says?
- Section 497 states: “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.”
What Section 198(2) CrPC says?
- Section 198(2) CrPC says that “… no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
Argument in favour of the present law:
- Answering the question why a wife cannot be prosecuted as an abettor to adultery, a senior judge said the protection from prosecution given to women under Section 497 is in tune with Article 15 (3) of the Constitution. Article 15 (3) allows the legislature to make “special provisions” which are “beneficial” for women and children.
- It is a key fact that Article 15 of the Constitution deals with Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- The erring man alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither can the husband prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail.
Argument against the present law:
- While Section 497 gave husbands the exclusive right as an aggrieved party to prosecute the adulterer in a case involving his wife, a similar right has not been conferred on a wife to prosecute the woman with whom her husband has committed adultery.
- Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.
- The law also does not take into account cases where the husband has sexual relations with an unmarried woman. Thus, the provision deems that “husbands have a free licence under the law to have extra-marital relationships with unmarried women.”
- Section 497 (adultery) of the Indian Penal Code was sometimes taunted as a “flagrant instance of gender discrimination, legislative despotism and male chauvinism.”
- It was sometimes described as a kind of “romantic paternalism,” which stemmed from the assumption that women, like chattels, are the property of men.
- Even the court agreed that “a man seducing the wife of another” was the most seen and felt evil in society.
- The IPC version of criminalising adultery with five years imprisonment is just a more moderate version of the Islamic versions which see it as a grave offence that deserves barbaric punishments like stoning and lashing. Such laws serve as encouragement to peep into people’s bedrooms though only the husband can make a complaint.
Law Commissions’ views:
- Law Commission of India in its 42nd report had recommended the retention of Section 497 in its present form with the modification that even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery.
But this was not accepted by Parliament.
Views on adultery:
- In 2003, the Malimath Committee, constituted by the Union home ministry, declared that “there is no good reason for not meting out similar treatment to a wife who has sexual intercourse with a married man.” So, instead of confining itself to anyone who has sex with “the wife of another man”, the Malimath Committee said that Section 497 should penalise anyone who has sex with “the spouse of any other person”.
- In 2006, the National Commission for Women rightly recommended that adultery be decriminalised.
- Most countries in the West have decriminalized adultery. India should follow their example rather than split hairs over making it gender just.
- The apex court’s re-visit signals a paradigm shift in the way the apex court views the modern Indian women. The time has come for the society to realise that a woman is equal to her husband in every respect.