Thursday, March 23, 2023

Are adultery laws flawed?

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Section 497 defines adultery as a crime committed by men when they have sexual intercourse with a married woman. It is not an offence when a woman has sexual intercourse with a married man. This anomaly in the law reflects our notions on women and sexuality

By Shivangi Sud

Consider this typical case study: Kiran and Alok first met when they were college students in Delhi. They got into high-profile corporate jobs and decided to marry. After Kiran had a baby, she decided to quit her job. She was 30 at the time. Alok was already a corporate honcho at a multi-national. Life seemed hunky dory. Suddenly, one day Kiran discovered that Alok was having an extra-marital affair with Shweta, one of his colleagues. Several months later, Kiran realized that Shweta had not been the only one. We know that Alok is guilty of having committed adultery. But what about the many Shewtas in his life—are they equally culpable?

The law can sometimes be curious, both in theory and practice. Section 497 of the Indian Penal Code, 1860, defines adultery as a crime committed by men when they have sexual intercourse with a married woman without her husband’s consent or connivance. “The law did not create any offense when a woman has sexual intercourse with a married man,” the Bombay High Court stated in Yusuf Abdul Aziz v. State of Bombay.

In the appeal to the Supreme Court, a constitution bench reiterated what was stated in Section 497 of the IPC that a wife cannot be punished as an abettor to the crime of adultery. The Supreme Court further laid down that adultery laws were not unconstitutional even though there are two partners to the crime (the wife and her partner) and only one (the male partner) gets eventually punished.


While many perceive this as a factor in favor of women, they do not realize that this argument is premised on the objectification of women. “The woman has no role. She is not even considered. She is a commodity, either used by this man or that man. It is a fight between two men over the use of one man’s property,” Ranjana Kumari, Director of the Centre for Social Research, told India Legal.

In fact, while adultery laws may seem unfairly in favor of women, a closer look at its implications reveals that it does more harm to women than men. As per the theory and practice of adultery laws in India, only a man has the right to sue his wife’s “lover”, whereas the wife has no legal right to sue her husband’s “mistress”.

The underlying idea is that women are the private property of their husbands and any violation of such property by another man ought to be punished legally through criminal sanctions. On the contrary, women have no such property rights over their husbands. Adds Ranjana Kumari: “One of the most important implications of adultery laws in India is that they strengthen the male presence and power in marriages.”

The point is not that cheating wives don’t exist. They do and their husbands have the legal remedy to divorce them and even sue their partners. However, while Indian women retain the right to divorce their cheating husbands, they cannot sue their husband’s partners. Therefore, the Kiran of our representative story could only have divorced Alok, as she did in a long-drawn legal battle involving child custody, but could not have sued Shweta for knowingly being involved with Alok.


What if the tables were turned? What if Kiran was the one to have an extra-marital affair? Alok would have had the option of divorcing her as well as suing her extra-marital partner for committing adultery, which is a serious offense under Indian criminal law.

Section 497 of the IPC states that a man who has sexual intercourse with a woman whom he knows is married, is liable to be punished for adultery. While women have the civil remedy of divorce on grounds of adultery, it is a long-drawn and complex process.

Marriage and divorce in India are largely governed by personal laws, only a small proportion of which have been codified and enacted by the legislature. Many of these personal laws are gender-biased against women and grant them very narrow rights of divorce, sometimes excluding adultery as a valid ground for divorce. For instance, under Muslim personal law, a woman can divorce her husband if he falsely accuses her of   being unchaste or adulterous. Under the Dissolution of Muslim Marriages Act, 1939, a woman can divorce her husband if he associates with other women of ill-repute or leads an infamous life. Adultery, per se, is not a valid ground of divorce for women.

Wherever women have the right to seek divorce on grounds of adultery, they face the problem of having to prove it. Laments Kumari: “Whether under criminal or personal law, adultery is difficult to prove.”


Why are the “other” women (the Shweta of our story) not punishable under Section 497 of the Indian Penal Code, 1860? Notes gender studies expert Dr Ashley Tellis, who is currently teaching at The Banyan Academy of Leadership in Mental Health, Tamil Nadu: “Indian law does not account for a desiring woman per se, let alone an adulterous woman.” In the eyes of law, the Indian woman is sexless and weak and, therefore, incapable of being adulterous. Therefore, it can never really be her fault!

This assumption about women’s sexuality is deeply problematic and sexist. Unfortunately, it is also a very common notion about women’s sexuality. It is this common perception about women’s desire (or rather the lack of it), among other misogynistic notions about women in general, that society uses to distinguish between the “good” and “bad” woman.

This attitude even belies censorship trends in India, as has been pointed out by Professor Ratna Kapur, visiting faculty at Jindal Global Law School, in her paper “Feminist Reflection on Speech and Censorship”. The “bad” women are those who are sexually active, who wear any kind of apparently “sexy” clothing, “who have had more boyfriends than you can count on the fingers of one hand”, and basically those who have any “sexual” desire. Whether it is slut-shaming, censorship of sexual speech, or adultery laws, the undercurrents are unmistakable. The good Indian woman has no desire, and therefore, cannot be willfully adulterous.

“There is a problem in the way we understand adultery. There should definitely be a gender-neutral law on adultery. Also, adultery needs to be redefined. As of now, we don’t consider women’s choices and control over their bodies. We don’t have that concept in our legal system”, says Kumari when asked whether she agrees with the idea of a gender-neutral law on adultery that brings women within its scope.

“Currently, women don’t matter as subjects of law in India”, says Tellis, emphasizing his view that women should be brought within the scope of adultery laws.

Lead illustration: Anthony Lawrence

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