The Supreme Court is looking at questions about adultery, now criminalised under Section 497 of the Indian Penal Code.
In the course of its hearing, the court has described the current law as ‘peculiar’ and ‘anti-women.’
Adultery is seen as an act of a man having sexual relations with a female who he knows, or has reasons to believe, is the wife of another man. However, under the current law, the woman can’t be punished as she is seen as the victim.
People battling for changes in the law are questioning the need to police a consensual act between two adults. They are also highlighting the inherent gender bias in obvious and hidden forms in this law.
What is the problem?
The law gives only the husband the right to file a case against the man who slept with his wife. So the woman and her chastity are the property of the husband, to be safeguarded by him.
The law does not criminalise adultery if the husband has consensual sexual intercourse with an unmarried woman. There is no provision for a woman to file a case against her husband if he has an adulterous affair.
All she can do is pray the other woman be married, and adulterous woman’s husband file a case against her husband. Easy peasy!
(Side note: There is no case at all if the ‘other woman’ is widowed or unmarried.)
The presumption here is that the wife is innocent and naive and someone who can be ‘misled’. She can’t be trusted to make her own decisions. There is a bizarre line in the law which means something like a husband can essentially approve of or consent to his wife having a sexual relationship with another person. In that case, the lover can’t be convicted.
Many women’s groups in Bengaluru favour a change in the law, activists told Metrolife.
What Bengaluru says
Malvika
Law student and intern at Vimochana, NGO for women
“Adultery deserves to be decriminalised as women deserve equality and the freedom to make their own choices in all domains. It can be grounds for divorce but the present law treats women as their husband’s property and that is not acceptable. Vimochana has joined in to file a PIL against criminalisation of adultery in Supreme Court.”
Varun Hemachandran
Founder, Talking Earth
“The whole thing is pretty straightforward. I think adultery itself should not be the subject of the legal system. It should be left to individuals to tackle. The idea that the government may legislate or the judiciary adjudicate the private lives of people is in itself outdated.”
Rachna, homemaker
“Decriminalising adultery may make a joke of the sacred institution of marriage. Values have an important place in Indian society and our social structure is different from that in foreign countries. So such a law is not outdated.”
Uma Arya, advocate and arbitrator
“I handle more than 200 matrimonial dispute cases and adultery is the main reason in most of them. I feel people will not change their mind, no matter what the law is. They will find a way to work around it. I feel it is correct to say both the man and woman are equal partners in such an act, irrespective of the circumstances and situations.”
‘Discrimination against men’
In 1951, Yusuf Abdul Aziz challenged Section 497, saying that by punishing only a man for adultery, the law is discriminating against citizens on the basis of gender. He argued it was against the fundamental right to equality of all citizens. This was one of the first challenges to the adultery law. The court ruled the section was not discriminatory and the Constitution had allowed the state to make ‘special provisions’ for women.
Sensational Nanavati case
Unarguably the most famous case relating to adultery in India is the 1959 incident of Cdr Kawas Manekshaw Nanavati, who shot dead businessman Prem Ahuja, his wife’s lover. Nanavati was initially declared not guilty by a jury but the verdict was dismissed by the Bombay High Court and the case again went on trial before a bench. The navy man was finally pardoned by Vijayalakshmi Pandit, then Governor of Bombay and sister of Prime Minister Jawaharlal Nehru. The incident received unprecedented press coverage and inspired several books. Two Hindi films, ‘Achanak’ and ‘Rustom’, are based on the incident.
Chennai teacher’s argument
In 1985, Chennai school teacher Sowmithri Vishnu challenged before the Supreme Court the Constitutional validity of the adultery law. She said it made a hostile discrimination against women as the conviction of a man automatically earns the woman social stigma, and the woman cannot protect her interests during the prosecution. The court held that the contemplation of the law, evidently, is that the wife involved in an illicit relationship is a victim and not the author of the crime.
Neighbour's envy
Sri Lanka, Bhutan, South Korea, England and China are among the many countries to have decriminalised adultery. Pakistan and Bangladesh, alongside India, are countries where adultery is still an offence.
A five-judge bench headed by Chief Justice Misra has said the law seems ‘archaic’.
Noting that the act is committed by both, the married woman and the man she is in a relationship with, the court said “one is liable for criminal offence but the other is absolved”.
An order says the law is based on a “societal presumption.”
The central government has taken the view that the law protects the institution of marriage and diluting it would be detrimental to the matrimonial bond.
What law says
‘Section 497 of the IPC (Indian Penal Code) states that, ‘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.”
The crime attracts imprisonment of up to five years, a fine, or both.
The law does not hold the woman guilty in any case of adultery: “In such a case, the wife shall not be punishable as an abettor.”
