Adultery under the lens

Section 497 of the IPC, which deals with adultery, is being re-examined by the Supreme Court, while a debate rages about how much power and blame women should shoulder.

Adultery has existed from time immemorial, although there are enough stories to prove that the shame of stepping out has faded. Be it Raj Kapoor, Rekha, Kamal Haasan or Sridevi, they all had alleged extramartial affairs but bounced back unscathed. The pact of convenient infidelity suits not just the husbands, but the ‘other’ women too.

With the Supreme Court deciding to re-examine a 150-year-old provision on adultery in the Indian Penal Code, which treats women only as victims and men as offenders, a new debate has opened up as to why women can’t be punished for adultery.

“A change in the current laws would be most welcome. As things stand now, you are treating a woman as though she is a minor, not able to make her own choices. Both men and women are equally responsible for adultery, and as such, should face equal consequences for their intercessions. The laws, as they stand now, are anything but equal,” says divorce advocate Mridula Kadam.

By definition, the term adultery covers any extramarital incidence of sexual intercourse. However, according to Section 497 of the Indian Constitution, a woman cannot be convicted for adultery. She is not given the power to lodge an adultery case against her husband either. In its current form, only a married man can lodge a criminal case against the ‘other’ man with whom his wife is having an affair. The term of imprisonment for such a man is five years. The women herself is denied of any agency.

Abha Singh

Advocate Abha Singh decries the fact that the Supreme Court is only looking at the fact that women are not punishable, without giving them the power to lodge cases as well. “The power is completely in the hands of the husband, as things stand. The law gives no power to women to lodge cases against their husbands if they are in adulterous relationships. Instead of looking at that aspect of things, the Supreme Court is focusing on how the extant laws are harmful for women. This entire business simply shows the misogynistic mindset of the Supreme Court. If the law is indeed amended, then both aspects should be addressed, not just the lack of punishment for women,” she asserts.

Keerthi Anantha, advocate, Tatva Legal, also points out that the laws, as they stand, reduce women to mere chattel in the marriage market. She explains, “There was an earlier case where Section 497 was challenged, alleging that it violated Article 14 of the Constitution, since women were not punishable for adultery. The Supreme Court upheld its constitutionality by stating that Article 14 allowed beneficial legislation and since it was beneficial to women, it was not violating Article 14. Presently, Section 497 is being viewed differently. The section holds that women are being treated as chattel and that adultery committed by a man with a married woman, with the consent of her husband, is not a crime. This has been interpreted as holding a woman in a bad light.”

Supreme Court of India

The existing law on adultery has caused several issues due to the fact that the husband is never implicated for having an affair. Varsha Bhargavi, founder, Concept Voyages, recounts how it affected her own mother.  “My mom chose judicial separation to divorce for the same reason. Social stigma associated with separation is always a burden a woman has to carry along with the lack of social support from family or financial independence. My mother’s case dragged on for 17 years in the family court and I turned 29 by the time she was given Rs 1,500 a month as maintenance. Even worse, patriarchal conditioning affects the next generation too. Cheating feels ‘normal’ — girls become more tolerant and boys think it is allowed. If we had an agency to express our will to separate and seek compensation with speedy settlement of maintenance in courts, I am sure women would take a stand,” she says.

Change is in order
Prima facie, Section 497 of the Indian Penal Code grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both individuals, one is liable for criminal offence but the other is absolved. However, society must realise that a woman is equal to a man in every way and hence this provision appears to be quite archaic. When the society progresses and rights are conferred, a new generation of thoughts spring forth, and hence, we are inclined to say that change is in order.
—With inputs from Dyuti Basu