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Adultery No More a Criminal Offence; Section 497 of Indian Penal Code -Then and Now

Posted On : January 12, 2019
WHAT IS ADULTERY? Adultery is a voluntary consensual relationship between a married individual and someone who is not his/her lawful spouse. Adultery is considered as legally wrong and is a punishable offense. The act of adultery is a crime which breaches the marriage vows and is detrimental to public morals. It is regarded as illegal in some countries and certain laws have been passed to keep a check over adultery. Although adultery is not a criminal offense, it may have legal consequences and the individual concerned may be penalized and punished especially if the case is pertaining to divorce. History: In ancient Greece and Roman world, there were harsh laws against adultery but these were applicable only if the female was married. But these laws were not relevant if a man maintained sexual relationship with a slave or an unmarried female. The Bible too forbids adultery and the seventh commandment clearly states this. In customary Judaism, both the parties were equally responsible for adultery but it applied only if the female partner was married. Lord Jesus also abhorred adultery and considered that even looking at a female lustfully is equivalent to adultery. According to ancient Hindu laws, only the felonious female was punished and killed while the husbands were considered equal to god and were left off with warnings only. Section-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 case, the wife shall not be punishable as an abettor.” Section-498- Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”. BREAKING DOWN SECTION 497 [ADULTERY] Section 497 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 case the wife shall not be punishable as an abettor.” Breaking it down what the provision says is: any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery. In other words, sexual intercourse with a married woman amounts to adultery. The law does not confer any right on women to prosecute the adulterous husband, or the woman with whom the husband has indulged in sexual intercourse with. In simple words, the husband solely has been permitted to prosecute the adulterer. India's top court has ruled adultery is no longer a crime, striking down a 158-year-old colonial-era law which it said treated women as male property. Previously any man who had sex with a married woman, without the permission of her husband, had committed a crime. A petitioner had challenged the law saying it was arbitrary and discriminated against men and women. It is not clear how many men have been prosecuted under the law - there is no data available. This is the second colonial-era law struck down by India's Supreme Court this month - it also overturned a 157-year-old law which effectively criminalised gay sex in India. While reading out the judgement on adultery, Chief Justice Dipak Misra said that while it could be grounds for civil issues like divorce, "it cannot be a criminal offence". WHAT DID THE ADULTERY LAW SAY? The law dictated that the woman could not be punished as an abettor. Instead, the man was considered to be a seducer. It also did not allow women to file a complaint against an adulterous husband. A man accused of adultery could be sent to a prison for a maximum of five years, made to pay a fine, or both. And although there is no information on actual convictions under the law, Kaleeswaram Raj, a lawyer for the petitioner, said the adultery law was "often misused" by husbands during matrimonial disputes such as divorce, or civil cases relating to wives receiving maintenance. "Men would often file criminal complaints against suspected or imagined men who they would allege were having affairs with their wives. These charges could never be proved. WHAT DID THE JUDGES SAY? All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional. "Husband is not the master of wife. Women should be treated with equality along with men," Chief Justice Misra said. Judge Rohinton Nariman said that "ancient notions of man being perpetrator and woman being victim no longer hold good". Justice DY Chandrachud said the law "perpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes". He said the law sought to "control sexuality of woman (and) hits the autonomy and dignity of woman". Critics have called the law "staggeringly sexist", "'crudely anti-woman'", and "'violative of the right to equality'". WHERE ELSE IS ADULTERY A CRIMINAL OFFENCE Adultery is considered illegal in 21 American states, including New York, although surveys show that while most Americans disapprove of adultery, they don't think of it as a crime. Adultery is prohibited in Sharia or Islamic Law, so it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh and Somalia. Taiwan punishes adultery by up to a year in prison and it is also deemed a crime in Indonesia. In fact, Indonesia is drafting laws that prohibit all consensual sex outside the institution of marriage. In 2015, South Korea's Supreme Court struck down a similar law where a man could be sent to prison for two years or less for adultery. The court said the law violated self-determination and privacy. More than 60 countries around the world had done away with laws that made adultery a crime, according to Indian lawyer Kaleeswaram Raj. In the UK, adultery is not a criminal offence and like many other countries, one of the main reasons given for divorce. Couples cannot use adultery as a ground for divorce if they lived together as a couple for six months after the infidelity was known about. THE JUDICIAL PRONOUNCEMENTS ON THE VALIDITY OF THE LAW The constitutional validity of the law of adultery in India has been challenged a number of times but the court has upheld its validity and also the ‘classification’ made under it. In the case of Yusuf Aziz v. State, The Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution. It does not offend articles 14 and 15 of the Constitution of India. In case of V. Revathi v. Union of India and Ors, The court held that that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. In case of Sowmithri Vishnu v. Union of India and Anr,The court held that the contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. WHAT THE JUDGEMENT INFERS 1. Section 497 is arbitrary: Throughout the judgement, it was pointed out that the nature of Section 497 is arbitrary. For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his wife have an affair with someone else. Rather, the judgement points out, it serves to preserve the ‘proprietary rights’ a husband has over his wife. Moreover, the wife cannot file a complaint against her husband or his lover. There are no provisions to deal with a married man having an affair with an unmarried woman or a widow. 2. Women can’t be held captive by societal expectations: The second page of the judgement clearly states, “A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity.” In a society like India, the role and expectations of women are deeply rooted in society. So it’s revolutionary for the Supreme Court to observe that women cannot be forced to act as per society’s will. It is not nuanced enough to take into account what kind of marriage it was or why one partner cheated. 3. A husband does not own his wife: The judgement adds, “And, it is time to say that a husband is not the master. Equality is the governing parameter.” Activists had slammed Section 497, saying it was totally “male-friendly” and that as long as it existed, it perpetuated the idea the wife was the husband’s property. 4. It is against Article 14, 15 of Constitution: Article 14 guarantees equality to every citizen in India and Article 15 states that no one can be discriminated on the basis of religion, race, caste, sex, etc. The court observed that the very nature of Section 497 was in contravention to this as it saw women as subordinates of men, and hence went against the Constitution of India. 5. Why should adultery be a criminal offence?: The judgement makes it amply clear that by criminalising the act, the law was entering an extremely private sphere – that of matrimonial life. According to Article 21 of the Constitution, everyone is guaranteed dignity and personal liberty, but by making adultery a criminal offence, individuals would be deprived of dignity and privacy. “The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure,” Indu Malhotra wrote in her judgement, thus questioning why it is a criminal offence at all. She added that since adultery was a moral wrong, and not a public wrong which affected the lives of scores of others, it didn’t deserve to be classified as a criminal offence. WHY INIDIA’S ADULTERY LAW WAS OUTRAGEUOSLY HILLARIOUS IF NOT ABSURD, DEFINITELY COMIC. In India, though, adultery, looked at from the legal standpoint, verges on comedy. Section 497 of the Indian Penal Code, the law that deals with adultery, is so astonishingly absurd that it would be hilarious if it weren't outrageous. Section 497 criminalises adultery -- a legal structure that most civilised countries dispensed with years ago. It also puts the burden of guilt on the man who is in an adulterous relationship. The woman in question is considered innocent. Naturally, men feel that this is unjust and that both parties -- the man and the woman -- should be held equally liable for the act. They have a point. However, the beauty of this dinosaur legislation (it was instituted by the British in 1860) is that it manages to be anti-women even while it appears to be throwing a protective arm around them. By assuming that the adulterous woman is blameless, it infantilises her, as though she were a helpless plaything in the hands of her home-wrecking lover. It's a brilliant, curveball piece of sexism, which happens to be unfair to men as well. But there’s more. The law says that if a man has sexual intercourse with another man's wife 'without the consent or connivance of that man' he will be held guilty of adultery. Which is really another way of saying that a wife is her husband's property and, if he sanctions it, some other man can go ahead and have sex with her. Also, while a man can bring charges against his wife's paramour, the law does not grant the same privilege to a wronged wife. If her husband cheats on her, she must lump it -- she can sue neither him nor his lover. In other words, both the crime and its punishment can only be initiated by men. In the eyes of the law, women -- adulterous or aggrieved, faithless or furious -- are entirely without agency. What people know and what people don’t know? Lets end here breaking the stereotypes we have been seeing all around after this law has been passed. WHAT PEOPLE THINK 1. Adultery is now legal. 2. Supreme Court went mad when it made this legal. 3. Having Sex is legal now [with or without permission]. 4. Now I can have an extra – martial affair and my husband/wife cannot sue me. 5. Adultery is now not a ground for divorce. 6. Laws on adultery are breaking the moral education of the society. 7. Everything about this judgement was super bad. NOW ON THE CONTRARY, LET ME TELL YOU WHAT PEOPLE DO NOT KNOW & WHAT THE ACTUAL SCENARIO IS. 1. ADULTERY is not LEGAL [It has just been De – Criminalized] 2. This law was passed to break 150 years of patriarchal society. 3. ADULTERY IS STILL A GROUND FOR DIVORCE [IT IS MERELY NOT A PUNISHABLE OFFENCE UNDER IPC,1860] 4. ADULTERY laws are still as enforceable as they were in matters which are civil in nature. 5. Adultery isn’t such a grave crime for which on gets a sentence of 5 years(maximum). As long as it serves as a basis of getting a divorce, makes a man feel morally guilty, hurts his conscience, the punishment has been given, divorce will serve as the punishment. 6. Imprisonment may further destroy his social and family life and may bring defamation along. It also scars the minds of the children as they may not even understand why the father has been imprisoned. 7. In 2006, National Commission for Women turned down proposals for amending Section 497. The commission does not think that by merely prescribing punishment for women by amending Section 497, marriage can be protected or saved. In its recommendations forwarded to the Government, which asked it to review Section 497, the NCW stated that considering the relatively socially unempowered position of women, no amendments have been suggested. 8. Is the law not encouraging adultery in the minds of women by this defect in the section? It’s not necessary that the woman is always a victim of such crime and not the author of it. A female too may have an urge to step outside her holy matrimony; otherwise an act of non-consensual sex shall amount to rape. WHO IS HAPPY WITH THIS LAW & CHANGE & WHO IS STILL CRIBBING? Almost everyone, Men & Women alike have supported the idea to decriminalise ADULTERY. The next generation is moving a step ahead and is acting maturely, progressing & accepting changes. Those who have researched well & have a liberal mind are open to this. Supreme Court Judges/Lawyers/High Court Judges/Lawyers/Law Experts/Law Students & Graduates [Majority] are of the same opinion. Those who cannot accept change, are not liberal minded, want to live in the era of 18th century with laws of the 15th or perhaps 10th century are the ones who are still cribbing about this law and want it to be a criminal act. I shall end it here by saying “Adultery is by choice” Is it not too much to ask for if your matrimonial life is not going well just because of some adulterous act? Let the harmony of marriage stay within couples mutually, Criminalising Adultery is just another way of keeping your marital life safe by fear. All I want to say in the end here is “Let them be happy if they want to, Let them be divorced if they have to”
Written By :
Shreyash  Mohta
Shreyash Mohta
Kolkata |

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