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.
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.
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.