Author Name:   nidhikhare.11

law of adultery and the discrimination under it in light of the now legalized concept of homosexuality and proposes a modified definition of the law of adultery...

Gender Biasness in the Law of Adultery in India

The Indian Penal Code was framed by the Britishers in 1860 which was the time when women in India were considered the property of the men, and the offence on adultery given under s 497 is a clear reflection of this. Adultery is basically an act of having sexual relations outside marriage.[1] This article aims to critically analyze the gender biasness in the definition of adultery given under s 497 keeping in view the changing circumstances and the now legalized homosexuality. The author finally proposes an unbiased definition of adultery which could be introduced under s 497.

The Law of Adultery in India:
S 497 of the Indian Penal Code, 1860 states that:
“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.”

The Judicial Pronouncements on 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,[2] 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,[3] 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,[4] 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.

Analysis of the definition:
Now on analyzing the definition from beginning to end, we find the very second line of this section mentions the phrase ‘wife of another man.’ And here appears the very first point of gender discrimination. This phrase gives an idea that a married man having sexual relations with an unmarried woman will not be guilty of committing adultery.

The offence of adultery has been kept under the chapter titled ‘offence relating to marriage’ because this offence hits at the very root of the institution of marriage destroying the sanctity of a marital relation. And to preserve the sanctity of the marriage is not the duty of just one spouse rather both husband and wife.

But the language of this section gives a feeling that if the husband of the lady, with whom the person convicted of adultery had sexual intercourse, had given his wife his consent to have relation outside marriage then her wife’s relation with a third man will not destroy the sanctity of their marital relationships which is not true. Also, this discriminates between husband and wife as partners to a marriage since it does not include ‘husband of another woman’ exonerating the female partner in the extra-marital relation of the charge of adultery.

The next phrase mentions ‘without the consent or connivance of that man’ which clearly indicates that adultery is not an offence per se but is an offence only when the husband of the adulterer did not consent to it and also that the consent of the wife of person convicted of adultery is not considered in deciding whether her husband has committed adultery or not. This once again discriminates between the two sexes by not considering the consent of the wife of the person convicted of adultery in deciding whether her husband who had had sexual relations outside marriage is guilty of the offence of adultery or not.

The argument generally given in favor of this definition is that the inheritance of children of marriage is altered when wife beget children from a man other than her husband. Firstly if that is the case then even if husband consents, the inheritance will be altered and secondly if it actually about begetting children, a wife can also consent to extra marital relation of her husband to allow the other women to beget a child for her and her husband. And so, even the consent of this woman should be taken into consideration.

Also as far as the opinion of the court that ‘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’[5] is concerned then why the consent of the husband and not of the wife is given importance in deciding the offence.

Now today when even the courts have discussed matters like live in relationships and have secured the rights of the female partner in a live in relationship to property of her male partner and also discussed the matter of homosexuality and have decriminalized consensual non-vaginal sexual acts between adults[6] the Legislature should come up with a definition which even punishes a man who has had sexual relation with a married man because the current definition fails to do so.

The last line of this section mentions ‘in such case the wife shall not be punishable as an abettor’. In support of this the Supreme Court held that woman is neither the seducer nor the author of the crime but the victim.[7]. But this view does not hold correct in the present time.

But at the same time the allegation, put forth by many critics, that this act only holds the male partner to sexual intercourse guilty of adultery is not true as even where a female is having sexual relation with ‘wife of another man’, even she will be guilty. And so it cannot be said that this definition discriminates between men and women in holding them guilty of adultery.

Proposed amended definition:
When the Legislature comes up with an amended version of s 497 it should necessarily take all the above mentioned points into considerations. The author, after keeping in mind all the above lacunas of the law, has come up with a modified definition of adultery which is as follows:

“Whoever voluntarily has sexual intercourse with a person, who is and whom he knows or has reason to believe to be the spouse of another person, 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.

Explanation: the word ‘spouse’ here would mean a husband or wife.”

Conclusion:
The need to amend the law on adultery in India has not been felt in a few years rather jurists and lawyers have been pressing the need for amendment since decades. The courts have held that they cannot strike down a section on the ground that it is desirable to delete it.[8] But the paper proposes an amendment to and not a deletion of the section. Therefore the Legislature should, with immediate affect, bring an amendment into the law of adultery and remove the gender biasness of this law.
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[1] M. Alavi v. T.V. Safia, AIR1993Ker21.
[2] AIR1951Bom470
[3] AIR1988SC835
[4] AIR1985SC1618
[5] V. Revathi v. Union of India (UOI) and Ors., AIR1988SC835.
[6] Naz Foundation v. Government of NCT of Delhi and Others, 2010CriLJ94
[7] Sowmithri Vishnu v. Union of India (UOI) and Anr., AIR1985SC1618.
[8] Sowmithri Vishnu v. Union of India (UOI) and Anr., AIR1985SC1618.

The  author can be reached at: nidhi.11@legalserviceindia.com

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