Indian legal system has often been hailed for its progressive and detailed stance on various issues. Yet the IPC has not been able to shed the absurd set of laws that have been criticized for a long time. Examples? Again the last sentence of this article makes a comment about gender bias in our law without giving any examples.

Specifically, I would like to discuss the laws on Adultery.

Adultery has been defined in the Indian penal code as the “voluntary sexual intercourse between a married person and a person who is not their spouse.”

The primary law that deals with Adultery is Section 497 of the Indian Penal Code. It says:

“497. Adultery — 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.”

Adultery law the world over has had interesting historical roots and is a criminal offense in numerous countries, with punishments ranging from small fines to even death penalty in some countries. The roots of these laws can be traced to one of the earliest law codes known, the Code of Ur-Nammu (ca. 1900-1700 BC). Verse 6 of the Code states that ‘If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male’, and verse 7 states, ‘If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.’ And this has been a recurring theme in every law that follows.

The liability and level of criminality of the offense in the eyes of the law has gone through myriad changes throughout history. In the current laws around the world though, the Indian version holds a unique stance check that deserves a special level of contempt. Though Adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law in its current form criminalizes only one form of adultery. It is illegal only if a man has sexual intercourse with a woman who is married, and he does not have the consent / connivance of the husband of the woman for the sexual activity. It is not easy to establish connivance or consent. The court seem to be taking subjective stances when it comes to what amounts to establishing connivance. For example, in the case of Bharatlal vs Top Singh, a trial court had sentenced Top Singh to RI for 1 year and fined for Rs. 700 for the crime of having an extramarital sexual relationship with Bharatlal’s wife. Top Singh appealed to a sessions court and argued that there was a delay in the process filing a complaint by Bharatlal and that he had proved that Bharatlal had connived to the extramarital relationship. The court subsequently acquitted him of all charges. Yet, later the High court of Madhya Pradesh again reversed the decision stating that connivance was not proven. And in the judgement, the judge, D.P.S. Chauhan, J. argues that “The consent or connivance is to be proved and is not to be pleaded as complaint is not to be treated as a plaint.” Reading through the judgement, one might assume that unless connivance is explicitly established, the default assumption in the views of the law would be that there was no connivance.

The consent of the man is given legal sanction as against the consent of the woman who takes part in the sexual act. The woman is denied of any agency. And, only the man who had sex with the married woman can be punished and the woman is not punished for adultery. If adultery is a crime where obviously two parties are involved, what is the rationale behind not punishing the woman? Probably a patriarchal perspective of seeing the woman as infantile and incapable of making a decision about her sexual behaviour. Or she is a property owned by her husband; a property that has been tampered with.

While attempting to understand the reason why such an absurd law exists, one must understand how the law sees marital relationships and women in general. Marriage as a patriarchal institution and, has and is seen as a way to establish social and personal control over a woman. Adulteration is a term that describes any form of mixing of impurity. For example, mixing water in milk is adulteration of milk. Similarly, marriage as an institution is a way of establishing blood-line purity for the husband. In terms or casteist purity, religious purity or anything else the husband might think about. This ensures that the property wielding male passes on property to his heirs. Adultery though, would mean that this lineage would be affected and the external male ‘adulterates’ his blood line by having sexual intercourse with his wife and the husband would be burdened with the ‘blood of another man’. This is why intercourse with the consent of the husband is not criminalized as the husband clearly knows the lineage involved.

Basically the woman has been reduced to the mere status of a vessel, or a child bearing machine. This is reinforced by the Section 198 of the CrPC. It states “198. Prosecution for offences against marriage. — (1) No court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860), except upon a complaint made by some person aggrieved by the offence:” And as the grieved party can only be the husband, a husband can initiate proceedings against the ‘external adulteror’ and the criminal proceedings go the same way. This is just a differently worded trespassing law that establishes the wife as the property of the husband. The wife does not have any significant role in the outcome of the case.

It must be understood that the law in no way protects ‘the sanctity of marriage’. This is because the husband may wilfully have any number of extramarital sexual relationships with any number of women, and the wife cannot initiate any action against the husband under this law. This is because the husband’s blood-line which the law seeks to protect is not affected in such relationships and thus has not been ‘adulterated’.

Thus the woman is deemed to be a hapless victim and incapable of making decisions with her own body, and thus is exempt from being prosecuted. This view is re-affirmed by the next code in series Section 498:

Section-498 – Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

Thus, the following points can be noted about these laws that work together

A wife cannot prosecute her husband or her husband’s lover for adultery. But a husband can prosecute his wife’s lover. (A wife cannot be considered a grieved party)

If the husband has an affair with an unmarried (or divorced, or widowed) woman, no one can initiate any action against anyone.

If the husband has an affair with a married woman, only the husband of the other woman can initiate action.

Only a man can be a seducer and women are powerless victims.

These sections were of course challenged in the court multiple times and in a notable case, V. Revathi v. Union of India, the constitutionality of the section was questioned.

Thakkar, J. of the Apex Court made the following observation:

“The community punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. … There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.”

Thus the observation states that equality exists in the sense that women cannot be punished and in return external men alone can be punished. It is interesting to note that the observation failed to note that an external woman too can ‘break into a matrimonial home’. To be convinced by such arguments, one must subscribe to extremely gender discriminatory, patriarchal and male chauvinistic positions.

Regardless of whether you consider yourself to be a feminist or a men’s right activist, it is clear that this law must go. One might question the entire necessity of, and the reasoning behind criminalizing consensual relationships between adults (most European countries have decriminalized laws on Adultery). When the law has been repeatedly found to be in favour of controlling women’s sexuality and their ability to take decisions, as evidenced by the fact that marital rape is still legal, and that consensual relationships (as in this case) or between minors is illegal, this isn’t surprising.

Most developed countries hold adultery as a ground for divorce and do not criminalize the act (and this holds for the husband and the wife). In every angle though, the IPC’s section 497 and section 498 seems to target the protection of the Husband’s property rights and nothing else. The pervasiveness of patriarchy and gender inequality that has entrenched deeply into the roots of our Indian Penal Code stands directly against the constitution (Article 14 & 15) and has no relevance in the modern context. It would not be enough if this section is amended. We need a large scale systematic clean-up of our laws to rid it of its gender biased elements.

References

Section 497 of the IPC – http://indiankanoon.org/doc/1833006/ Code of Ur-Nammu Bharatlal vs Top Singh – http://indiankanoon.org/doc/118184/ Section 198 of the CrPC Section 498 of the IPC V. Revathi v. Union of India