Dated: August 13, 2018
Are Adultery Laws Biased in India
In simple words, adultery means illegitimate relationship with opposite sex, i.e. sexual intercourse between individuals who are not married to each other.
Section 497 of the IPC describes the term adultery and the punishment for it. Adultery as defined in sec 497 is, “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.”
As the last line clearly states that the wife will not be punishable for the act. So as to explain it in simple words, let’s take an example. A, a woman, is married to B, a man; M, a man has an affair with A. When M has sexual intercourse with A, B can charge M for the offence of adultery but not A. It is evident from the language of the section that, adultery is only illegal in India when a man commits that offence. Act of adultery is only illegal when the man has sexual intercourse with a married woman who does not have the consent of her husband. The wife of the adulterer also cannot take any action against her husband under this section.
It is very unreasonable and discriminatory in nature to say that the women are not guilty and punishable for the offence, but then man in the same case is. The law of adultery is not applicable to women and expressly provided that the women cannot be held for abetment. The object of the law is to inflict punishment on those who interfere with the sacred relation of marriage, and the legislature also considers it to be an offence against the sacred matrimonial tie.
Same is the situation from the side of women. The wife of the husband who has had an intercourse with other lady cannot file a case under this section. It does not serve the interest of the women at all.
Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery.
Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. The Court said in the case of Sowmithri Vishnu v Union of India, that the law is that the wife who is involved in an extra-marital sexual relationship is not guilty of a crime but is a victim and the legislature considers it to be offence against the sanctity of a matrimonial home, and the offence is generally considered to be committed by a man.
Section 497 does not take in cases where the husband has sexual relations with an unmarried woman, with the result that husbands have, as it were, a free licence under the law to have extramarital relationship with unmarried women.
Section 497 is gender biased in terms of following mentioned grounds,
It does not allow the wife to prosecute the woman with whom her husband has illicit relations though it allows the husband to prosecute the man who did adultery with his wife.
It has exempted the wife from all types of criminal liability
It permits the husband to prosecute his disloyal wife but the wife cannot lawfully prosecute her disloyal husband.
Against interest of women
No wife can bring to justice the lover of her husband. But a husband can, with the help of this section, persecute his wife's lover.
If a married man is having an affair with an unmarried woman or a divorcee or a widow, it shall not be treated as adultery under this section. Even if a man is having an affair with a married woman, it shall not be treated to be a crime under this section, if the husband of the woman consents to it or if the affair is carried out with his connivance. This effectively means that husbands can freely indulge in having extramarital affairs with spinsters, widows, prostitutes or even married women directly or indirectly.
Women cannot file a case of adultery against their husbands under this section, even if he is having an extramarital affair with a married woman. On the other hand, the husband of an adulterer wife cannot only file a case of adultery against his wife’s lover and bring him to justice, under this section, but can also file for a divorce from his wife, on the ground of adultery, if the charges brought under this section, are proved.
The section does not even provide any provision which enables the court to hear the woman against whom the husband brings charges of having indulged in an extramarital affair.
As per the arguments presented above, it can be clearly seen that, the adultery laws in India are gender biased. But the biasness is not specific to gender, sometimes it is biased towards male or sometimes towards female, and at times biased in general. There is a urgent need to reform this law, so that there can be proper implementation of the same, and no injustice of any sort is caused to any gender.