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Whether Biased Against Women Or Men, India’s Adultery Law Is Seriously Messed Up

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By Vaagisha Das

The public humiliation of a woman by stripping and beating her was a punishment adopted in a village in Kharagpur district for adultery. This is just one example in a long line of similar incidents, which has led to heated discussions about the adultery law in India. The Indian Constitution has been hailed for being progressive, yet as far as decrees go, the Indian Penal Code is still bound in the shackles of some archaic laws, with its adultery law being the first in line. When taken literally, the words of this law state that women are not to be charged for adultery, even when they are willing and equal participants in the act – hence it has been the subject of various debates, with some contesting that it seems to be ‘protecting’ women, and is therefore, unfair to men. On the other hand, if interpreted differently, the aforementioned law seems to be infantilizing women in the blatant omission of blame: either way, it is clear that any law that plays into such notions of equality is in need of some modification.


The Adultery Law And Its Implications

Under Section 497 of the Indian Penal Code, “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.” In other words, if Simran is married to Kuljeet, and Simran has an affair with Raj, then Kuljeet can bring charges against Raj, but Simran will not be charged under the same offence. Although 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 of the husband of the woman for the sexual activity. The women herself is denied of any agency, and this includes the wife of the adulterer, who can take no action against her husband.

Flaws In The Law – Its Inherent Gender Bias

It is important to establish, from the very onset, that the law in this regard does not seek to preserve the sanctity of marriage – rather, it seeks to protect the structure of the institution. As referenced in the case of V. Revathi v. Union of India, in which the Court held that the man was the seducer and not the woman, the aforementioned law is striking in its pursuit to punish only the ‘outsiders’ in the marriage – in this case, the male adulterer. Adulteration refers to the mixing of an undesirable substance in an otherwise ‘pure’ element, hence the parallels drawn between the husband, whose bloodline has been ‘adulterated’ by the outsider, gives some idea to the origin of the law. The husband has been cheated of his right to a ‘pure’ bloodline, and under the above terms, he should receive some measure of protection under the law.

This is essentially saying that if a man’s property is defiled by another, the man can punish the offender – the woman here is reduced to mere property. This was reinforced in the case of Sowmithri Vishnu v. Union of India – where Sowmithri, whose lover was prosecuted for adultery, contended that the law was gender biased. Despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought and therefore has no agency.

Addressing another major controversy, the adultery law has also received flak from protesting men who claim that this law is biased against them. But they overlook the fact that this law does not permit a woman to bring to justice the lover of her husband. How does one contend that a law is favourable to women when the very same law makes it legal for a man to have extramarital relations with a widow, or even an unmarried woman? The wife’s hands are tied in this instance – she is helpless to bring charges against her husband under this section.

The Indian Law has been known to advocate gender discriminatory and patriarchal lines of thought, hence the marital rape and abortion laws in India, and it is increasingly clear that such laws have no place in a modern society which needs to develop beyond the colonial mind set. Most countries have decriminalised adultery – India should follow their lead and do away with such dated laws, lest they further expose the stagnancy of the legal system.

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  1. Monistaf

    While I agree with you that this is an archaic piece of legislation and has become irrelevant in modern times, it is definitely biassed against men and infantilizes women. Any act of a sexual nature between two consenting adults must be permitted by law. The bias is very clearly against men simply because they are the only ones held responsible for their actions and as you rightly point out, the women are stripped of all agency and responsibility. It panders to the feminist narrative that women can only be victims in any sexual act, they can never be perpetrators or aggressors. This is true of other laws as well like IPC 375 and the DV act of 2005. Moreover, the only person who spends any time in prison to “atone for his sin” is the man, regardless of who initiated the act. Your perspective that a wife cannot “punish” her husband under this law if he has an affair with an unmarried woman just states that she cannot take advantage of this law for her own revenge / benefit, but she is never in any danger of spending time behind bars. That “privilege” is only reserved for men. Surprised you cannot see the bias.

  2. Spider-Man

    All Indian laws are biased and bigoted. The message they send is clear – only women are human beings.

  3. Suraj Balakrishnan

    Is there a need for a law that criminalizes consensual sex between two consenting adults? And yes, adultery or extra-marital affairs if proven are grounds for divorce irrespective of gender!

    1. sagar rai

      Consensual sex should not be confused with extra marital affair. Or else marriage would lose it’s significance. People interested in affairs should end their marriage first.

  4. Thakur Anurag Anand

    This article itself is biased against men. So she said that even a “woman” cannot punish her “husband” for adultry. Actually she can file for a divorce and receive a handsome alimony from their husbands. However, in other case where a wife is involved in “adultry”, the husband although can seek divorce, won’t be entitled to any alimony even if he proves that the wife was involved in adultry.

  5. sagar rai

    This article writer is stupid. In the end, she suggests to decriminalize adultery which makes no sense. There would be no value of marriage if adultery is decriminalized. In my opinion, instead of making law gender biased, the outside person should be punishable doesn’t matter if the person is a man or woman and right to file adultery charges should be given to both husband and wife.

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