ADULTERY: WHY STRUCK DOWN? WE NEED GENDER-NEUTRAL LAWS

ADULTERY: WHY STRUCK DOWN? 
WE NEED GENDER-NEUTRAL LAWS!

Adultery is a very serious crime morally. It used to be a legal crime too before September 27, 2018. But on September 27 Supreme Court struck down the sec. 497 of IPC which 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 a case, the wife shall not be punishable as an abettor."

This law was 158 years old and while striking down this law SC stated this as ‘Husband is not the master of wife’ the judgment held section to be ‘manifestly arbitrary’. Before we talk about the law, the reasons why it has been struck down by the SC, and what should be done instead of striking it down; we shall talk about its history, its statistics and what exactly its psychological effects on the person who has been cheated by his or her spouse.

Introduction

As mentioned earlier adultery is according to the Sec 497 of IPC is a man who is having sexual intercourse with a lady who he believes is married to some other person, without the consent or connivance of the man. Such kind of intercourse if not rape then termed as the offence of adultery and shall be punishable with the imprisonment of maximum 5 Years or fine or both. In this wife shall not be punished as an abettor but this can be a ground of divorce.

The reason behind punishment only to the man and not for the women is that: there is an ideology about the sanctity of marriage and it was considered that a man usually interferes in the pure relationship of a married couple if he is having sexual intercourse with her. So only he is to be held responsible. Also to comply to charge a man with the offence of adultery, it is not necessary that he is, married or not. What actually important is that whether that lady is married to some other person or not. This means that if a man is married and he is having an illicit relationship with a woman who is not married then this shall not be considered as adultery or even any offence. Again, this is a valid ground for divorce against such husband.

Now that we have a clear idea of what are adultery and the history behind it we can move forward towards the reasons why adultery was struck down.

This all started in with a writ petition filed by Joseph Shine a 41 yr. the old businessman before Supreme Court of India. He in his petition contended that it discriminated against men by only holding them liable for extra-marital relationships while treating women like objects. Also "married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men," his petition said. In addition to this petitioner (Mr Shine) argued: "indirectly discriminates against women by holding an erroneous presumption that women are the property of men". Petitioner also quoted American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary General Kofi Annan on gender equality and the rights of women in the petition.

Arguments raised against the petitioner are so on:

That section 497 protects the sanctity of marriage...However, if a married man has sexual intercourse, outside his marriage, but with an unmarried woman, that does not amount to an offence under the provision though it also affects the sanctity...”, reflected Justice D. Y. Chandrachud. “Fidelity does not apply to a married man if he engages in extra-marital sex with a single woman? You expect fidelity from a woman but not from a man?” he asked.

Further, Justice Chandrachud indicated the impropriety of the section in so far as it exempts from criminal prosecution a man who has engaged in sexual intercourse with a married woman if the same transpires with the consent or connivance of the said married woman’s husband- “can the section be saved if we strike down this part...because this is one ground for the unconstitutionality of the provision...or would we, by applying the doctrine of severability, in fact, make the offence even more severe than the legislature intended?”

Besides consent, if the husband of a woman connives with another man for the latter to participate in sexual intercourse with the former’s wife, then there would be no adultery! This ‘connivance’ attaches certain deviousness to the Act”, he continued.

To this justice Indu Malhotra also pointed that “the “absurdity” of the section in as much as it legalises the act of Adultery if committed by with the consent or connivance of the husband of the woman who is party to the act- “Is the wife of the consenting husband being treated as chattel?”. This will amount to gender bias.

“There is no rationality in treating one party as the victim and the other as the accused of the same act...the only rationale behind the provision seems to be that marriage is an institution which has to be saved...marriage has been called an institution in all scriptures...it is built by two pillars and there has to be equal responsibility of both...to say that women are protected from the criminal ramifications of Adultery under Article 15(3) is not justified...Article 15(3) only applies to post-constitution laws...”, stated by the Chief Justice. “An ancient provision is not protected under Article 15(3). It is for the Parliament to make laws under Article 15(3)”, agreed Justice Nariman.

In the judgment, it was stated that sec 198(2) of the Cr. P. C. allows the initiation of criminal proceedings for Adultery only committed by the husband of the lady who is engaged in such illicit relationship, but the wife of the man who is engaged in such a relationship can’t institute a complaint.

Talking about the offence of bigamy under section 494 of the IPC, Justice Chandrachud weighed in, “bigamy is gender neutral...if a woman engages in sexual intercourse in a second marriage while the first is subsisting, it is punishable...section 497 does not use same the yardstick as section 494 and this distinction makes the former unconstitutional”.

At last Justice Chandrachud also referred the argument to make the sec 497 gender neutral. He mentioned that “making this section would only address the issue of under-inclusion and that the real question is if Adultery should be a criminal offence at all.

To the contrary, Justice Malhotra raised her doubtfulness about “how the relationship between two adults, which is a matrimonial dispute, could be a crime against the society.”

Why not gender neutral law?

Finally, such a gender biased law has been dealt with. But the problem is scraping out the offence is the only solution we are left with? Clearly, this seems like running away from the problem than actually dealing with. Yes, even if the law has been scraped out but still it is a ground of divorce. This doesn’t seem like a solution because according to a recent study which was conducted globally revealed that India officially has the lowest divorce rates. Only 13 marriages out of 1000 result in divorce, which amounts to only 1%. “The number of people separated is almost thrice the number of people divorced - 0.61% of the married population and 0.29% of the total population.” This shows what kind of taboo divorce is in our country. On second thought, no one is looking at the condition or situation of the other spouse who is being cheated on. Adultery is not a victimless crime. A family member, extended family all of them get affected and most who get hurt is the other spouse who is being cheated on because at some point he/she will blame themselves only, for being cheated on doesn’t matter whatever may be the reason. It also affects children.  In India most of the spouses whether husband or wife stay shut even after knowing the fact that their respective spouse is cheating on him/her. This thing leads to many mental problems like depression. And most of the time this ultimately leads to something horrific. At the current hour, we need to make it criminalize for both of them i.e. for male as well as female. Rather than letting it decriminalized and makes it a ground of divorce only to pursue civil proceedings. Decriminalizing sec 497 will ultimately make adultery very liberal in its nature. Now people will not fear the consequences because there aren’t left any. Not only this but also an amendment should be introduced where women are allowed to file a complaint against her husband who is cheating on her and the person he is cheating with. Then only men and women will be at equal footing.

- Deepali Gangil

JEMTEC, School of Law, Noida