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India’s lopsided adultery law: Adverse impact of patriarchy on men or women?

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Prime Minister Narendra Modi’s government has said that “Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages,” in response to activist Joseph Shine’s petition in the Supreme Court. The petition aims to make the law gender neutral.

At present, Section 497 of the IPC treats only the man as an offender.

ThePrint asks- India’s lopsided adultery law: Adverse impact of patriarchy on men or women?

Supreme Court is right in saying that we need to get rid of such gender-biased laws

Monika Arora
Advocate Supreme Court of India

Indian Constitution is believed to be a modern constitution but in certain cases the country is still bound by archaic Victorian British laws. The adultery law is one such law which is full of flaws and doesn’t fit in a modern India.

The implication of Section 497 of the IPC is that it is punishable only for men and not women, even if the woman is a consenting party to sexual intercourse outside of marriage. She is believed to be a victim.

Although the law appears to be women-friendly, it is not so. The interpretation of Section 497 shows women just as a property of men and nothing more. In other words, if in a marriage, the wife has sexual relations outside marriage then the act is adultery but if the husband has illicit relations outside marriage with a woman who is unmarried or widow, then no offence is committed.

This means that a woman can’t file a case of adultery, nor can she be prosecuted on the ground of adultery.

The Supreme Court admitted a petition to drop adultery as a criminal offence from the statute book, saying that the provision treats a married woman as her husband’s subordinate. “Time has come when the society must realise that a woman is equal to a man in every respect,” the Supreme Court recorded in its five-page order.

The Supreme Court has very rightly come to the conclusion that we need to get rid of such gender-biased laws because even the Islamic countries like Saudi Arabia, Pakistan and Somalia make the prosecution for adultery common for men and women to move towards a better and neutral India.

Adultery could be ground for divorce, but criminalising it is transgression of law

Anumeha Mishra
Assistant Professor, Faculty of Law, University of Delhi

Despite having an equality clause in our Constitution, our gender debates are still guided by a benevolent form of patriarchy, wherein laws attempt to protect women by projecting them as hapless victims instead of empowering them.

The Section 497 of the Indian Penal Code is a vestige of a mindset where women were treated as a property of their husbands. Moreover, the operation of this law discriminates against men, as is often the case with patriarchy.

The argument that decriminalising adultery shall destroy the institution of marriage is based on flawed understanding of marriage. We no longer live in an era wherein marriage is considered an unbreakable vow. In this backdrop, it is ironical that law seeks to punish an individual who tries to find companionship outside the wedlock.

Adultery maybe considered a ground for divorce, but its criminalisation is an example of the transgression of law in the private lives of individuals. It is ironic that our law refuses to criminalise marital rape on the ground that it interferes with privacy, but is more than willing to regulate sexual behaviours of individuals on the ground of adultery.

Societal mores are often cited by legislators for restricting progressive laws, but we need to understand that if we allow societal morality to guide us all the time, we will fail to evolve with changing times.

Adultery may be a crime in the eyes of spouse, but should not be one in the eyes of state

Saumya Saxena
Legal historian, family law scholar and independent consultant to the Law Commission

By presuming that only a woman can be a victim of adultery and that it deserves criminal consequences, the law assumes a patronising attitude towards women. Decriminalising adultery would bring parity between men and women.

Thus, the provision not only discriminates against men but also encourages the notion that the wife is a subordinate of her husband. The prosecution under Section 497 is entirely contingent on the husband’s word so much so that it practically implies that a woman can enter into an adulterous relationship upon her husband’s consent, thereby, reducing her to a commodity of a man.

Women rights lawyer Flavia Agnes has pointed out that the First Law Commission, set up in 1834 under Thomas Macaulay to draft the Indian Penal Code, did not include adultery as a criminal offence but a matrimonial or civil offence, but this was changed by the subsequent report.

Strangely, as Agnes points out, the court has repeatedly upheld its validity in Sowmithri Vishnu vs Union of India 1985 and again in V Revathi v. union of India in 1998. One hopes that adultery will be made a matrimonial offence and remain a ground for divorce without inviting any criminal provisions.

The Report on Status of Women 2015 recommended a complete removal of this provision. Criminalisation of adultery, ostensibly a law to protect women, undermines their status in a marital relationship. Adultery may be a crime in the eyes of a spouse but should not be one in the eyes of the state.

Law puts undue pressure on man to ensure ‘sanctity’ of marriage

Sakshi Arora
Journalist, ThePrint

India’s farcical adultery law does not even do justice to the ‘patriarchal’ tag attached to it. It not only absolves women of any responsibility in committing adultery, but also ensures that the man pays the price for the ‘crime’.

The adultery law is unfair to women as it treats them like victims, and also puts undue pressure on the man to ensure the ‘sanctity’ of an institution like marriage is maintained.

When women today are fighting hard to achieve equal representation, doesn’t it then become our duty to demand equal treatment in front of the law as well?

Such archaic laws show how only men come under the spotlight for certain cases. Be it rape, harassment, dowry or adultery, men are not always guilty. Forget them being able to come forward when they are the victims of these incidents because the law not only gives the benefit of doubt to the women, but society also puts the onus of being ‘stronger’ on them.

Even the law asks that a person be considered innocent until proven guilty, but Indian adultery law doesn’t even allow that privilege to the Indian man.

When a man can’t find a place for himself in this ‘patriarchal’ society, where will the woman go?

Section 497 a double whammy – it punishes men for a consensual act & reduces women to objects

Deeksha Bhardwaj
Journalist, ThePrint

It is bad enough that we are caught in an archaic, Victorian-era code of sexual conduct where adultery is not only a sin but also a crime. What is even worse is how Section 497 of the IPC is phrased.

If a man “knows or has reason to believe (the woman) to be the wife of another man, without the consent or connivance of that man” then it is adultery. The math is simple. Man thinks, believes, and acts. The woman, however, is defined in patriarchal terms – as a wife. She obviously has no agency, sexual or otherwise.

Women are property, men are the owners. Technically speaking, if the husband ‘consents’ (read coerces, or forces) a woman into an extra-marital affair, he is not on the wrong side of the law. However, consensual sex outside of marriage between two consenting adults is illegal.

Even as the Supreme Court hears a revolutionary petition regarding decriminalising homosexuality, the Centre is arguing to reassert the sanctity of a monogamous, heteronormative marriage.

This law is a classic example of how patriarchal notions limit not only women but also men. Section 497 is a double whammy – it punishes men and reduces women to objects. By not punishing women, it isn’t absolving them of the blame. It is simply eradicating the notion that women have any sexual agency.

All those crying foul over how feminism is about equal rights and that women should share responsibility in the ‘crime’ of adultery should take a minute to think. The state doesn’t want them to. The ‘men’ who have made these laws don’t want them to. Ironically, by punishing women they will have to accept that they are independent thinking beings.

In the meantime, men will do what men do best– fight it out among each other.

Compiled by Deeksha Bhardwaj, journalist at ThePrint.

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