Insights into Editorial: Should adultery be a crime?

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Insights into Editorial: Should adultery be a crime?


Context:

Section 497 of the IPC treats only the man as the offender and the married woman as a victim.

The Supreme Court said the dusty Victorian provision of adultery in the Indian Penal Code treats a married woman as her husband’s “subordinate.”

The court admitted a petition to drop adultery as a criminal offence from the statute book. SC mentioned in its order ‘the Time has come when the society must realise that a woman is equal to a man in every respect’

What does adultery means?

Adultery means voluntary sexual intercourse of a married person other than with spouse. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent.

Though the modern trend is to decriminalize adultery, historically, many cultures have regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery.

 Section 497 of the Indian Penal Code (IPC)

In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC), 1860. As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors.

The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law Commission of India recommended redefining Section 497 to make women also punishable for adultery.

An Analysis of Section 497

Critics of Section 497 allege that the law is sexist in nature, for it only criminalises the conduct of the man while excusing the woman. They say that in making the husband the only person who can prosecute for adultery, the law is founded upon the idea that the status of the wife in a marriage is akin to that of the property of the husband.

Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. He is punishable with imprisonment of up to five years.

  • That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman.
  • It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it.
  • In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer.
  • What is interesting here is that the section itself expressly states the unfaithful wife cannot be punished even as an abettor to the crime.

The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.

The Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex.

Why Women are not punished for Adultery

The offence of Adultery did not punish women but still existed in the code because at the time the enforced law was enacted polygamy was deep rooted in the society. Women were treated as victims of the offence of adultery.

The legislative intent behind the enactment of Section 497 is quite different from what is perceived. In 1847, the Law Commission of India was given the responsibility of drafting a new penal code. The Commission rendered liable only the male offender, keeping in mind “the condition of the women in this country” and the law’s duty to protect it.

The provision was therefore made to restrict men from having sexual relations with the wives of other men and at the same time to restrict their extra marital relations to unmarried women alone.

Apex court’s observation

The Supreme Court said the dusty Victorian provision of adultery in the Indian Penal Code treats a married woman as her husband’s “subordinate.”

The apex court in its recent observation opined that this provision treats women as personal property. It observed that the fulcrum of offence within the Section is destroyed if the husband were to consent to the wife having a relationship with another man.

Marriage remains a strong bastion of patriarchy. At its core, marriage builds a power hierarchy that is unequal for women. It isn’t surprising that apologists often quote the argument of the sanctity of marriage to support the criminalisation of adultery. The laws lend themselves well to bring about the submission of women, with the patriarchal structures prevalent in marriage as an institution.

Conclusion

No marriage or alliance can take away one’s right over one’s own body. Therefore, while the law on adultery as it is today in the IPC is discriminatory on the ground of sex; the very existence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity. No doubt that the law, as it stands, is inadequate.