The Curious Case Of India’s Adultery Law

Posted by Aniket Verma in Politics
January 18, 2018

“A gender-equal society would be one where the word ‘gender’ does not exist: where everyone can be themselves.”
Gloria Steinem, an American feminist and journalist

This famous quote clearly aims for an idealistic society. A society which should be a dream for all like-minded individuals. An order where men and women are just biologically different, and there are no religious, cultural or national laws making any distinction in what they are or what they do.

And then we have a law, Section 497 of the IPC (Indian Penal Code), which appears outright sexist from its description. The section states that, “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 offense of rape, is guilty of the offense 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 a case, the wife shall not be punishable as an abettor.”

As evident, the law gives a clean chit to the married woman who established sexual relations outside her marriage with consent. On the other hand, the man with whom she slept, gets prosecuted with imprisonment of up to five years. Now any sane person has the right to believe that this provision is filled with discrimination against men. And rightly so, as why should only the man be punished when the woman is equally responsible for their adulterous relationship? But a deeper understanding will uncover the hidden misogyny in the above lines.

The law gives only the husband the right to file a case against the man who slept with his wife. It basically treats the woman’s chastity as the exclusive property of her husband, which is supposed to be guarded or used only by him. So, in case of an abuse of such a “precious commodity” by another man, the husband has the right to get him punished.

Questions can also be raised as to how the law treats the decisions of an adult woman. Is she too naive to understand what is morally wrong for her? And in that case, the man who seduced her into the relationship remains the only reason behind breakage of the marital bond. If not, then why no action against the woman who betrayed her husband?

Another aspect of this bizarre law is that there is no provision for a woman to file a case. Although, he can be prosecuted if the husband of the woman with whom he was in a relationship with files a case. Moreover, there is no case at all if the ‘other woman’ is a widow or unmarried, which has been clarified by the Delhi High Court in an earlier ruling. The marital status of the woman forms the crux of the matter. And here lies the great hypocrisy. A married woman is adulterous when she sleeps with any man outside her marriage, and a married man is not if he sleeps with a widow or an unmarried woman.

The law gives a great opportunity to women as well as men’s rights groups to protest against different portions of the law as per their convenience. But the fact of the matter is that the law reduces marriage, which is considered as a sacred bond in the Indian culture, to nothing more than a joke. It reinforces the very gender divisions which every society wants to get rid of. There have been legal petitions against this law.

Recently, the Chief Justice of India announced that a PIL challenging the validity of Section 497 had been assigned to a constitution bench of the Supreme Court. This will definitely be music to the ears of activists and countless men and women who may have suffered at some point in time under the hands of this discriminatory British-era law.