We live in an age where the scope of natural rights as once propounded by Immanuel Kant has been broadened to reach the threshold of human rights - universal rights inalienable to us by virtue of us being humans. With rights comes the freedom of choice that is subject to certain “reasonable restrictions” under the law. In the wake of this very exercise of free choice comes the aspect of choice of having an extramarital affair, specifically of entering into a sexual liaison outside the matrimonial relationship. However, in this case, this freedom of choice tantamounts to adultery, a punishable criminal offence under the law. Shocking, isn’t it? To criminally charge an individual for establishing sexual relations outside marriage is a bizarre provision in today’s rights-oriented liberal world. This provision that vows to protect the “purity” of marriage stands in stark contrast to the constitutional freedom and equality. A law such as this has lost its relevance and is seen no more than an impediment in the struggle for enlarging human rights.
The law on adultery under section 497 of the Indian Penal Code(IPC) holds a man guilty for voluntarily establishing sexual relations with a married woman without the consent or connivance of her husband. The woman, however, is not charged for the same, not even as an abettor. As discriminatory as it may seem towards men, the law has drawn flak for underlining a patronising tone towards women. The provision states that it is only in the absence of the consent or connivance of the husband that the other man can be charged with adultery. This implies that a woman is a ‘property’ of her husband and it is he who has the sole right on her body. Thus, when an outsider breaches the marital bond, he is intruding the husband’s sole right on her wife.
The Supreme Court of India has recently challenged the constitutionality of section 497 by questioning why only a man is held accountable for committing adultery and not a woman. The apex court has also taken note of the patronising tone of the law towards women.
Interestingly, adultery was not recognised as a criminal offence in the first draft of the IPC under the Chairmanship of Lord Macaulay in the year 1837. It was only in the 2nd report of the Draft Penal Code in 1847 that the Law Commissioners limited it to the cognizance of adultery committed with a married woman, keeping in mind the condition of women in the country and thus, held men liable for punishment for adultery. However, these recommendations were not accepted. In 1860, section 497 was enacted that laid the basis for adultery as follows: -
“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 was enacted in a period wherein polygamous marriage system existed. Men had multiple wives and women were socially and economically dependent on men. Women were seen as objects of possession. Thus, the law on adultery saw a woman as the victim of this offence who could be seduced by a man and this not being the other way around. Since women were viewed as hapless victims of adultery thus, adultery was recognised as a criminal offence only by a man. The law now is seen as archaic and a source of “paternalistic discrimination” when it necessitates the husband’s consent for the wife’s voluntary involvement in a sexual act with another man. Critics of the law have staunchly opposed the law for treating women as “property” of men and thus, have ushered in demands for abolishing the law altogether. The United Nations Working Group (WG) on discrimination against women in law and practice has also urged governments to repeal laws that criminalise adultery. According to WG, such laws when enforced amount to discrimination and violence against women in law and practice.
The law is in consonance with section 198 of Code of Criminal Procedure(CrPC), 1973 that states that no person other than the husband should be deemed aggrieved by any offence punishable under section 497. Thus, the two laws, section 497 of IPC and section 198 of CrPC, reflect the unequal status of men and women in the institution of marriage. On the one hand, where it is only a man who is seen as an adulterer and not a woman thus, signifying that women have no agency of their own and thereby require the consent or connivance of her husband. On the other hand, the redressal for the harm caused unto the spouse is only granted to the husband meaning that a married woman cannot file a case against her husband who engages in an adulterous act.
An advocate of the petitioner, Joseph Shine had contended that the penal section was introduced in a period when women were considered as the ‘property’ of men. They have asked the court to annul section 497 as unconstitutional. This is not the first time that a petition in this regard has been filed. In 1951, Yusuf Abdul Aziz who was charged with adultery challenged the constitutional validity of section 497 in Bombay High Court. Aziz argued that section 497 violated article 14 and article 15 of the Constitution by holding only men as guilty of adultery. The court dismissed Aziz’s appeal and upheld the constitutional validity of section 497 by stating that it is a special provision made for women and is thus, in consonance with clause (3) of article 15 of the constitution. In another case called Sowmithri Vishnu Vs. The union of India, the Supreme Court rejected the appeal that section 497 does not confer the right upon the wife to prosecute her husband and the woman with whom her husband has committed adultery. It was also pointed out in the petitioner’s appeal that the law does not recognise cases where the husband establishes sexual relations with unmarried women thus, giving him a free licence under the law to have an extramarital affair with an unmarried woman. The Supreme Court rejected the appeal once again and ruled that section 497 does not violate article 14 and article 15 of the Constitution. The apex court also maintained that it is for the legislature to make the necessary amendments required by section 497 in the light of the transformation of “feminine” attitudes.
The act of adultery is seen as an invasive attempt in a matrimonial unit. This view was held by the apex court in V. Revathi v. The union of India, 1988 wherein the petitioner argued that the inability of a woman to prosecute her husband amounts to an “obnoxious discrimination.” The apex court once again upheld the constitutionality of section 497. The apex court said that section 497, when viewed with section 198 of CrPC, enables an agency to deal with the “outsider” to the matrimonial unit which is deemed sacrosanct and harmonious. However, critics of the law argue on a different plane. They have contended that the law fails in protecting the sanctity of marriage as soon as it exempts the husband from being prosecuted by his wife for establishing illicit relations with an unmarried woman or a divorcee.
The adultery law views women as victims of adultery and men as the sole perpetrators of adultery. This unequal undertone of the law has been criticised severely. Thus, appeals for extending the offence to women have been coming to the fore every now and then. The judiciary has responded to these appeals for amendments to the law by stating that any amendment to the law is possible only through legislation. However, some have pressed demands for doing away with the law altogether for it denies women an agency of their own and implies their subordination for requiring the consent of their husbands to enter into a sexual act with an outsider. As Justice Chandrachud rightfully asks in the light of the recent petition, "Does this relegate her(woman) to the level of a commodity?"
Critics argue that adultery law is obsolete and is seen as an infringement of human rights as the courts should not be regulating consensual adult behavior that occurs in private. In many countries of the world, adultery has been decriminalised and is instead recognised as a civil offence. Time and again, there have been demands for decriminalising adultery in India. The National Commission for Women in 2006 stated that adultery should be treated as a civil wrong instead of a criminal offence. The Commission contested that there may be many instances in which the woman wants to save the marriage and thus, views the relationship as an aberration. Thus, adultery in this regard should be seen as a breach of trust and thereby treated as a civil wrong and not a criminal offence. There is another group of people who argue that it is none of state’s business to deal with who sleeps with whom thus, keeping adultery away from both civil and criminal jurisdiction.
The law on adultery is highly unjust towards both men and women in ways that have been discussed, in detail, above. The goal should not be to introduce amendments that hold women equally guilty of adultery. Instead, the goal should be to do away with an ancient law such as this and to place adultery as a civil offence. It is important to remember that punishment for a criminal offence has far more traumatizing effects on individual freedom than that one for civil offence. This is not to say that punishment for civil offence is to be taken lightly instead it should be seen as the last light of hope for settlement that rests with the couple in case of disagreement over the spouse’s adultery.
I believe that even before we recognise adultery as a civil offence, we should also arrive at a sound definition of adultery. Unlike the current definition of adultery that discriminates against both men and women, a gender-neutral definition should be sought.
In my view, adultery is a breach of marriage contract which does not require the backing of a criminal procedure of law for deterring the adulterer. By treating adultery as a civil offence, we are not only ensuring that the married couple have a binding authority to whom they can refer their case, as a last resort in a situation where no settlement is possible by own means but at the same time, ensuring that an individual’s voluntary action to breach the marriage contract should not bear consequences that severely traumatize his/her rights and have him/her incarcerated. Therefore, it becomes imperative to debate on whether adultery should be criminalised or not. A debate such as this will only further the scope of human rights and human agency.
- The Hindu, available at http://www.thehindu.com/news/national/supreme-court-agrees-to-examine-adultery-provision-in-ipc/article21296775.ece accessed on 20 Dec 2017
- Recommendations by National Commission for Women, The Hindu http://www.thehindu.com/todays-paper/tp-national/NCW-rejects-proposal-to-punish-women-for-adultery/article15735459.ece accessed on 21 Dec 2017
- http://prashantghai.com/adultery-not-offence-women-india/ accessed on 21 Dec 2017
- http://www.ebc-india.com/lawyer/articles/2001v6a3.htm accessed on 21 Dec 2017
- Hindustan Times, available at http://www.hindustantimes.com/sex-and-relationships/from-bed-to-worse/story-iO0qkw91jOksiiQyFnIccJ.html accessed on 26 Dec 2017
- http://www.advocatekhoj.com/library/lawareas/divadultery/7.php?Title=Adultery%20Divorce&STitle=Adultery%20Indian%20penal%20code accessed on 28 Dec 2017
Image Source: http://static.dnaindia.com/sites/default/files/styles/full/public/2018/01/06/639533-adulterylawarchaic-010618.jpg
Subscribe to our weekly newsletters.
Get all our posts, blogs and video content via e-mail.