Since its inception, the law on adultery in India has been subject to controversy with regard to several fundamental issues. The legitimacy of these laws in India has been argued based on their alleged tendency to emanate a very clear sense of gender bias. This article deals with issues surrounding the very conception of adultery by the law makers.
Adultery is the indulgence in voluntary sexual intercourse of a married person with someone other than his/her spouse. It is the intentional violation of the marital bed and the offence of incontinence by those persons entered into the bond of marriage. However, such legal definitions of adultery vary from one country to another and statute to statute, while adultery is voluntary sexual intercourse between a woman and a man who is not her husband in some places, it is voluntary sexual intercourse between a woman and a third party without her husband’s consent in other places.
In India, the offence of adultery is defined under Section 497 of the Indian Penal Code, 1870 which states,
“Whoever has sexual intercourse with a person who is and whom he knows or has a 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 the offence of Adultery”.
Therefore, in order to prove adultery the following ingredients must be identified-
The adulterer must have had sexual intercourse with the wife of another man.
Clear indulgence in sexual intercourse must be proved on the part of the accused. In case, the act does not involve actual sexual intercourse and ends at the stage of preparation itself, it will not be attracted by this section. Thus, proof of sexual intercourse having taken place is vital for conviction on adultery. In the case of Kashuri v Ramaswamy, it was held that if the act of sexual intercourse could not be conclusively proved, it must be inferable from the facts and circumstances of the case.
It must be clarified at the outset that Section 497 of the Indian Penal Code, 1870 is attracted only in cases where the woman in the adulterous relationship is the wife of another man through lawful marriage. The factum of marriage must be strictly proved for a man to be held guilty of the offence of adultery as put forth in the Indian Penal Code, 1870. Sexual intercourse with a prostitute, unmarried woman or a widow would not fall within the ambit of this section.
The adulterer must have had knowledge or must have had enough reason to believe that the woman is the wife of another man.
The accused must have knowledge of marital status of the woman in such alleged adulterous relationship. However if it may be proved that the accused had sufficient reason to believe the woman to be the wife of another man, it may be deemed to be knowledge as mentioned above. The term “sufficient reason” cannot be said to have common qualifying grounds for all cases of adultery. It is a question of fact and not law and hence can be deduced differently in different cases based on their facts and circumstances. It may also be noted that the identity of the husband need not be necessarily known by the accused, but his mere existence as the husband of the woman in sexual relationship with, would be sufficient to prove knowledge.
The adulterer must have had sexual intercourse without the consent of or connivance of the husband.
It may be laid down plainly that a husband on consenting to a relationship which may otherwise be termed an adulterous relationship absolves such relationship of adulterous nature. Therefore, on acquiring knowledge, as understood above, if the husband of the woman involved in an adulterous relationship fails to act upon such knowledge he is said to acquiesce.
The adulterer must have had such sexual intercourse that did not amount to rape.
The married woman must be above the age of 16 and a consenting party to the sexual intercourse. It is necessary for the married woman to willfully have sexual intercourse with the man. If she does not consent to the act, it would amount to rape and not adultery. In such a situation the husband’s consent is immaterial. However, if the woman is below 16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute rape.
If the above mentioned law is analysed quite generally it can be seen to be problematic in more than one way. However, for the purpose of understanding, the problems can be broadly discussed under the following:
1) Discrimination on the basis of sex.
The discriminatory aspect of the law regarding adultery can be seen by simply examining the key features of this provision. According to Section 497 of the Indian Penal Code, 1870, a man alone can be the adulterer and never a woman. In other words, a woman is always the victim of adultery and never a party to it. The cause for such legislation can be deduced from certain assumptions which form the basis for the said legislation. These assumptions are that a man is always the seducer and the married woman is simply a passive victim of the ordeal; the adulterous man trespasses upon another man’s marital property i.e. his wife. Thus, the justification given to the enactment of such legislation is that it attempts to ‘promote goodwill’ between the spouses and ‘encourages continuity in the marriage’.
In the case of Yusuf Abdul Aziz v. State of Bombay, the discriminatory aspect of the law was challenged with due cause and reason. The appellant who was accused of adultery relied on Articles 14 and 15 of the Constitution which explicitly preach equaltity and disallows discrimination on any basis. However, Article 15(3) of the Constitution says, “Nothing in this article shall prevent the State from making any special provision for women.......... ". Hence, the justification for the provision is that it was originally meant to be a special law deemed to protect women. This justification was reiterated in subsequent judgments of the Supreme Court. The Supreme Court, in these cases, relied on the justification that an outsider to the couple in matrimony, who poisons their peace in married life, should alone be punished.
However, this provision indirectly is discriminatory towards women themselves. A simple reading of the Section clearly suggests that a wife is the property of the husband, and he alone has the right to protect her. It is interesting to note that if the husband consents to sexual intercourse between his wife and a third person, it would not be considered adultery. Further, this provision only punishes a man, thus, assuming that a woman is incapable of thinking and taking responsibility for her own actions.
Another effect of this provision that may be worth pointing out is that in cases where a married man indulges in sexual intercourse with an unmarried woman, the man cannot be charged of adultery although his wife and the unmarried woman are sore victims of such an act.
This approach can be said to be one that is protectionist and in this case allegedly strives towards protecting women. Protectionist laws, in most cases, accept stereotypes, which in the present case is that ‘women are weak’. The problem that evolves from this approach is that it reiterates the fact that women are, in fact, weak and thus creating obstacles to achieving gender equality in society.
Hence it must be noted that Section 497 of the Indian Penal Code, 1870 is either obsolete or is based on principles which evolve from an incongruent approach towards solving the problem of gender inequality. Thus necessary steps need to be taken by the legislation to rectify the several flaws present in the existing laws on adultery in India.
2) Adultery, a criminal offence.
The state recognizes adultery as a crime. Such recognition can be said to raise speculation, as the act of adultery involves two fully grown adults, who are capable of making rational decisions, affecting their personal lives, participating in consensual sex. In the light of the above mentioned statement the question as to whether such an act poses a threat to society as a whole and warrants a punishment of imprisonment for a period of 5 years, arises.
The strict sanctions for the crime of adultery, give rise to a valid debate on whether criminal punishment is mandated as a deserving punishment for adultery. The basis on which the concept of criminalizing adultery rests is that it deters the adulterer from committing the crime again. This was an apparent attempt to counter the notion that most laws have been made to a man’s advantage. The subsequent claim of the legislators is that on enactment of such stringent laws, wives are not deprived of their husband’s attention, and no extramarital relation can be maintained without there being legal action for the same.
Personal laws that didn’t exist in their present form previously, have now become more operational, thereby putting both men and women on the same level. Therefore, the objective with which adultery had been criminalized is now close to being obsolete. The act of marriage is dealt with under personal laws. Under the Hindu Marriage Act, 1955, adultery is recognized to be a valid ground for divorce and thus forming an appropriate civil remedy for adultery. It seems unnecessary that criminal law must be used to provide an added form of sanction for the same.
Furthermore, marriage is a bond between two individuals who are over the age of majority and are of sound minds. The discretion to maintain any relationship with someone other than one’s spouse therefore, should be given to the parties involved. However, such discretion should be restricted to the sanction imposed by personal law i.e., a valid ground for divorce. Marriage is found to be within the ambit of personal laws under which it can be a valid ground for divorce and hence it seems rather redundant that Criminal Law must be used to meet out an added punishment. This proposition has also been supported by the National Commission for Women (NCW) which recommends that civil remedies must be ensued for perpetrators of adultery and not criminal sanctions as mixing personal law with criminal law is unwarranted.
Additionally, adultery as an offence is extremely gender biased, and hence the punishment for it also follows the same pattern. The woman is looked at as being incapable of taking care of herself or being self-sufficient if her husband chooses to violate the marital bed. This law acts as furtherance to this belief and suppresses any scope for achieving equality in laws governing both men and women. When personal laws today are efficient and operate for both sexes as being equals, and women are able to establish their own identity in society without their husbands, there is no requirement to retain adultery as a criminal offence as well. Hence, the scope of civil remedies is wide enough to ensure that consequences of appropriate proportions are faced by those committing adultery.
Therefore, adultery cannot be said to be a criminal offence as the act of adultery is simply effected by one’s personal life, whereas, a crime is an offence against the State. Hence, by rethinking the purpose behind the criminalization of adultery, and eventually disregarding it as legitimate law the progress of women from being perceived as helpless to being on par with men and equally self-sufficient, can be achieved.
In conclusion, it must be kept in mind that adultery was drafted into the Indian Penal Code, 1870 during the existence of the Colonial Rule in India. The prevailing conditions at this time were such that a woman was looked at as being the mere property of a man. However, in the present day, women are not mere chattel whose identities are defined by the men surrounding them, but by their own individual personalities. Law, being dynamic in nature, must evolve with society. Therefore, the dubious logic behind the adultery laws in India cannot be accepted in today’s continuously evolving society.
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