Editor’s Note: The Supreme Court unanimously struck down the Adultery Law (Section 497 Of IPC) on September 27, 2018.
By Prateek Gupta:
Before we begin, first let’s take a brief look at what exactly the law is.
Section 497 of the Indian Penal Code (IPC) reads as-
“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 cases, the wife shall not be punishable as an abettor.”
The following things you need to know to get the basic outline of the law:
Prima facie, it appears that it is only sexist towards men because women are not prosecuted for adultery, only men are.
Yes, it’s true. And that’s the first and the least sexist thing about it.
Adultery law is the most sexist in the IPC. Section 497 treats women as property. It treats women as possession. Property and possession – two words which we use when we buy or own stuff.
Section 497 does not punish the woman offender. And you know why? Because women are the property of the husband.
If the husband’s property is being used by some random person, without the consent or connivance of the husband, then the person using the property shall be punished.
At this point, students of law or persons having a little legal knowledge might say that this is what happens in theft.
In theft, a person dishonestly takes the possession of another without his consent. The same takes place here. A person is having intercourse with someone else’s wife without the husband’s consent. Therefore, the person would be liable because he used the possession of another without asking him.
But, if he takes the consent of the husband, then there’s no crime of adultery. Consent of the husband here matters the most.
I’m not making this up. The very second line of the section says “without the consent or connivance of that man”.
However, if the wife has not consented to sexual intercourse, then the act would amount to rape. (Consent simplified for you)
Another, i.e., the third sexist thing about this section is that it gives license to the husband to have intercourse with any unmarried woman or widow. Adultery can only be held against the person when he has intercourse with a married woman who is not his wife. But an unmarried woman or a widow does not come within the purview of this section.
You ask why? Because unmarried women or widows are not anyone’s property. They will become mere possession in the eyes of law when they get married.
To conclude: India needs a better adultery law. A law which treats men and women alike. A law which punishes them alike, or maybe does not punishes any of them at all.
Adultery is also a ground for divorce, obviously, and I believe it is futile and unnecessary to make it punishable since both parties are consenting to the act. Let’s save that discussion for some other time.
The article was originally published here on ED Times.