Adultery Law Section 497: Does men only Responsible for Extramarital Affair?Is Women just an object?

The existence of adultery law in India dates back to Hammurabi’s code, where adultery was embraced in the seventh commandment. Adultery is an extramarital affair, which is considered wrong on social, moral, legal and religious grounds. Henry VIII of England involved himself in adultery for divorcing his wife, Catherine Howard. Contrary to the current existence, adultery had a wider application in history. This can be said because it is applied not only to the commission of adultery between a married or unmarried man and a married woman but also between a married man and an unmarried woman.

The liability of adultery was consideration of marriage as a sacred institution and punishment for the breach of the same. Historically, adultery is considered a serious offence in most of the cultures of the world and hence, incur severe punishments including, torture, mutilation, and capital punishment.

In the present form in India, the applied law commission considered adultery as an appropriate law in the country during the early Independent Era and the upper court or the Supreme Court in the case of Yusuf Abdul Aziz further upheld the same.

While all these were in place, there was strong dissent from Anna Chandy, who voiced her opinion for the deletion of the clause, held it was the appropriate time for reconsidering the law of adultery and evaluating it with the present status of married women. However, the Supreme Court followed its previous fashion and upheld the law in the case of Sowmithri Vishnu vs. Union of India. Besides, the court emphasized that in spite of changes in the social scenario, it was the work of the legislature in bringing the change and not of the court to decide on the policy of the law.

Section 497 of the Indian Penal Code (IPC) has become a hot topic after the Supreme Court of India provided an important ruling that scrapped off the law altogether. Section 497 of the IPC deals with adultery and the recent judgment of the Supreme Court overturned the earlier rulings that upheld the said laws to be constitutional. As per the decisions are taken by the Supreme Court, Section 497 of the IPC goes against the Indian constitution and hence required scrapped altogether. The bench that pronounced the recent judgment consisted of five judges including the Chief Justice, Dipak Misra and Justices R F Nariman, A M Khanwilkar, DY Chandrachud, and Indu Malhotra.

Section 497 states that it is a punishable offence for a man to have sexual intercourse with a married woman without her husband’s consent. The man committing such an offence have to serve a term of five years or more of imprisonment along with a fine. The meaning of the word adultery in a dictionary “is voluntary sexual intercourse between a married person and a person who is not their spouse”. The petitioners wish to address a few problems connected to Section 497 of IPC.

One of the big concerns regarding this law is that it does not appear to be gender-neutral. In the case of commission of the act of adultery, the law calls for punishing only the man and not the woman involved. Section 497 does not allow a woman to file a complaint against her husband when he is involved in sexual intercourse with another woman.

Several people call it an anti-woman law since the law seems to reduce a woman to a mere object. As the implications of the law, a man does not need to have the prior consent of the woman to have sexual intercourse with her. The law only states the said act will not be a crime if the woman’s husband agrees for the act.

The Adultery law that existed in India assumed the position of the women as one merged with that of the men. The law punished a man guilty of committing adultery with a married woman, whereas the vice versa was unacceptable. The law presumed women to be innocent victims and hence were unpunishable for the offence of adultery. Women failed to have an independent existence in the eyes of the law and were regarded as the property of her husband. The law was justified on the basis that marriage is a pristine institution that a sacred man has breached and hence, he is the one punishable.

Previously, the IPC Section 497 punished adultery and proposed it as a crime. However, the legislative intent behind the enactment of Section 497 is quite different from the one perceived by the critics. The Law Commission of India was responsible for redrafting the Penal Code in 1947 and at the time of redrafting, the commission rendered only men being liable for the offence of adultery. However, this was done keeping in mind the positions of women at during the point of time and the duty was cast on the law protecting the interest of women.

On the other hand, the critics argue that the IPC Section 497 tries dictating, intervening into the lives of two consenting adults, and tends forgetting or overseeing the fact how adultery wrecks the life of other individuals. The people voiced their opinions in support of decriminalizing adultery in the Indian subcontinent are the ones who define morality should be based on an individual’s whims and fancies.

At observed by the then Chief Justice of India, Dipak Misra, the law regarding adultery is based on a discriminative basis as it is assumed one of the parties of adultery as a victim and the other as a criminal. There is no rationale in doing so and further violates Article 14 of the Indian Constitution as it ends up creating classification between the two genders.

While considering the aspect of ‘consent’, it is said that the law that is laid down that the relationship of a woman with other married persons depends entirely on the consent of her husband. This means a woman binds into a physical relationship outside marriage with the consent or connivance of her husband, further lays down that the husband has the control of sexuality of his lawfully wedded wife.

The law has flaws in certain other aspects as well and includes the empowerment of a married man to blame an outside agency for the breakdown of his marriage. However, if the wife chooses sleeping outside the marriage, it becomes an important aspect for the couple for considering the inadequacy of their marriage and not holding an outsider responsible for the same. However, it makes more sense if the couple approaches a court for mutual divorce rather than blaming a third person and putting him behind the bars for the declination of their marriage.

A 41-year-old, Joseph Shine, an Indian executive living in Italy petitioned the Supreme Court for striking down the law and argued that it caused discrimination against men by holding them liable for extramarital relationships while treating women like objects. His petition read, “Married women are not a special case for prosecution for adultery. They are not in any way situated differently than men”.

He further states that the law “indirectly discriminates against women by holding an erroneous presumption that women are the property of men”. In his 45-paged petition, Mr Shine liberally quoted from American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary Generally Kofi Annan on gender equality and rights of women.

However, the ruling political party BJP (Bharatiya Janata Party) opposed the petition and further insisted that adultery should continue being a criminal offence. In support of their argument, it was put forth that diluting adultery laws would highly influence the sanctity of marriages and making it legal would adverse the conjugal bonding.

All the five judges belonging to the bench believed that the law was archaic, arbitrary and unconstitutional. CJI Misra held that a husband is not the master of his wife and ordered treatment of women equal to the men. Justice Chandrachud held the law perpetuates the subordinate status of women, denied sexual autonomy, dignity and is based entirely on gender stereotyping. Critics call the law of adultery as one that is staggeringly sexist, crudely anti-women and additionally violates the right to equality.

The main concern of the law regarding adultery should not be that of the expectations of fidelity in a marriage is right or wrong or whether adultery promotes sexual freedom. The main concern should rather be whether a state can or should monitor a relationship between adults, which is quite complex, personal and sensitive or it is simply for the courts for having absolute interference in the individual matter of couples.

In 1945 when the law was challenged for the first time by a petitioner, putting forward the question of why a woman cannot be punished for indulging in the crime of adultery and further stated that such an “exemption was discriminatory”, the Supreme Court rejected the plea. Since the petition of 1945, the Supreme Court rejected all the pleas including the constitutional validity of the law and similar pleas on the grounds of adultery were rejected in the years 1985 and 1988. The judge based his ideology on the concept, “The stability of marriage is not an ideal to be scorned”.

In one of the cases, there was an instance when a married woman had approached the court, demanding her right to file a complaint of adultery against her husband’s unmarried lover. While deciding the case, the court patronizingly described the plea as “Crusade by a woman against a woman”.

Later in 1971 and again in 2003, two different panels on law reform recommended that women should be prosecuted for the offence of adultery. It contended, “A society always detests marital fidelity”, and hence there is no good reason for not meting out similar treatment for a wife who has sexual intercourse with a man other than her spouse. These words were delivered before the judge leading the panel in 2003. However, one of the developments in the field was noticed in 2011, where a top court hearing another plea laid down the law was facing criticism for “showing gender bias”.

With the striking of Section 497 of IPC, the Supreme Court assured Indian women that no one has the right to come in their way of dignity and empowerment. Critics voicing their opinion in favour of legalizing adultery put forth the view that adultery was rightly decriminalized as it failed to be gender-neutral and if two persons wanted to get into consensual sex, it is no one’s concern to stop them from doing so.

In 1950-55 when the Hindu Code Bills and the Dowry Prohibition Acts (1961) were passed, the popular sentiment was that men are the ones who are responsible for committing all sorts of wrongdoing. For adhering the same, there is a need for giving a special layer of protection for women’s condition as they were once regarded as a vulnerable condition on society. However, women have now become educated, independent and aware of their rights and hence no such laws are required in the present scenario.

However, several critics favour the negative consequences of legalizing adultery and for maintenance of smooth functioning of the society, few necessary things and marriage is one such institution. It is very essential for society because it provides future generations with a stable and caring environment and adultery not only threatens but also destroys the environment.

Legalizing adultery can be considered something that can be influenced by western civilization and divorce in western countries is 52% and is rising at an alarming rate. For controlling the Indian subcontinent from following the fashion of the western culture, it is an essential point not to encourage extra-marital affairs, which itself would rise with decriminalization of adultery.

Although the Supreme Court has delivered its views that, the law wrongly treats women as the property of men and going against the fundamental rights, adultery is still considered a valid ground for divorce. Hence, it is viewed as something that places a reasonable restriction, thereby implementing valid limitations on sexual autonomy.

Therefore, it can be concluded that the legal system should never regulate whom one should have a relation with, rather impose the process of separation when either of the two partners violates the sanctity of marriage. Moreover, the criminalizing the broken trust in a marriage neither leads a couple to come back to a blissful way of living nor does it changes the socio-cultural behaviour of the society.