Redefining the Offence of “Adultery”: Restoring balance between two genders
The Constitutional Bench of the Supreme Court of India is hearing on a day-to-day basis a bunch of petitions that have challenged the constitutional validity of section 497 of the IPC, which deals with the offence of adultery. Notably, it is contained in Chapter XX of the Code that is captioned “Of Offences relating to Marriage.”
Adultery defined
Section 497 of the Indian Penal Code reads 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.”
The following features of this legal provisions need to be highlighted:
· Only a man, irrespective of whether he’s married or not, can commit an offence of adultery and be punished for the same.
· A married man’s adulterous affair with an unmarried, divorcee or widow is not an offence, even if his own wife is the one objecting or complaining.
· Only a married woman, whose husband is still alive, can participate in the offence of adultery but she cannot herself be punished for the offence of adultery as an abettor.
· Proceedings against the adulterous man can only be initiated on the complaint of the husband of the adulterous female partner against the man who is indulging in the same (section 198 CrPC).
Legal arguments: for and against
Those arguing in favour of the existing provisions maintain that generally the man is the seducer and the adulterous woman/ other man’s wife is merely a victim. Thus while the man is sought to be punished, the adulterous woman is protected by law. Moreover, only the husband of the adulterous woman can make a formal complaint and not anyone else, including the wife, if any, of the adulterous man. Since, adultery, by definition, is assumed to be an offence against marriage, the consent or connivance of the husband of the willing and adulterous wife, effectively decriminalizes the consensual act.
Those arguing against the existing provision maintain that this section is grossly unfair to the wife of the adulterous man. She cannot even make a formal criminal complaint against her husband when he commits an offence of adultery. As a matter of fact, his extra-marital affairs with a single lady (unmarried, widow or divorcee) is not even considered to be an offence of adultery. The phrase “without the consent or connivance of that man” is used to demonstrate that this law regards the married woman merely as the chattel of her husband. In Constitutional terms, it is vehemently argued that the existing section 497 IPC needs to be struck down on the sole ground that it is flagrantly violative of a woman’s Fundamental Rights under Articles 14 and 15 (2) of the Constitution of India.
Apurva Vishwanath, writing for ThePrint.in on 2nd August, 2018[1], suggested that “instead of making adultery gender-neutral, it must simply be decriminalized.”
Harmonious interpretation
My suggestion is that the palpably offensive phrase “without the consent or connivance of that man” in section 497 IPC and the analogous phrase in section 198 (2) CrPC ought to be struck down. This will take away the objection that these legal provisions regard a married woman as a chattel of her husband. Simultaneously, the adulterous woman, whether married or not, should be regarded as an abettor in the offence of adultery although her punishment can be limited to three years instead of five years in case of a man. Furthermore, the aggrieved wife should be authorized by law to make a formal criminal complaint against her husband and the adulterous woman, which she currently cannot do.
This would be compliant with the Constitution of India, create a new balance between the rights and liabilities of a woman vis-à-vis the man, while not ushering in an openly permissive society that would not only sound the death-knell of the institution of marriage but also be abhorrent our social, cultural and religious traditions.
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K.B.S. Sidhu. The author is an IAS officer of 1984 batch of Punjab cadre. The views expressed are his own.
He can be reached on kbs.sidhu@gmail.com or @kbssidhu1961 or https://www.facebook.com/kbs.sidhu
[1] https://theprint.in/opinion/off-court/india-not-only-doesnt-want-to-scrap-victorian-adultery-law-it-wants-women-included-too/92230/
