adultery

Section 497 and 498 of IPC are dusty Victorian remnants

BLOG/ NEWS Criminal Law Criminal Law Indian Penal Code LAW EXPLAINED Women
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Since its initiation, the law identified with adultery in India has been liable to grave contention in regards to a few of its key issues. The lawfulness of these laws in India has contended in view of their inclination to demonstrate an unmistakable feeling of sexual orientation predisposition.

What is Adultery by the definition of Indian law?

Section 497 of the Indian Penal Code 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.”

In layman’s language, Adultery is the indulgence in the voluntary sexual intercourse of a married person with someone other than his/her spouse. It is an intentional violation of the bond of marriage.

What qualifies as an adulterous relationship between a man and woman?

The adulterer:

  • must have had sexual intercourse with the wife of another man.
  •  must have known that the woman is the wife of another man.
  •  should have sexual intercourse without the consent of the husband.
  •  must have had such sexual intercourse that did not amount to rape.
NOTE:

If the woman is below 16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute rape.

NOTE:

The identity of the husband need not be necessarily known by the accused, mere existence as the husband of the woman in a sexual relationship with, would be sufficient to prove knowledge.

The Victorian provision of adultery was brought under judicial scrutiny one of the many times when the Supreme Court in December 2017 admitted a petition that challenged the different sections of the Code of Criminal Procedure and Indian Penal Code addressing to the issue of adultery. The Indian law on adultery has been challenged on grounds of having an inherent gender-bias and being highly discriminatory in nature. It is argued by legal experts and critics that such a law makes women a commodity and treats the wife as the personal property of the husband. Even a simple reading of Section 497 would make it amply clear that it suffers from several flaws.

First, it defines adultery as the act of having sexual relations between a man and a married women blanking out other forms of adultery where a married man has sexual relations with an unmarried woman.

Secondly, and more importantly, it chooses to validate the act if done with the consent or connivance of the husband. In this regard, the Supreme Court has made a very pertinent observation while admitting the petition recently. The Supreme Court observed: “How can a law patronise women by saying women are victims in case of adultery …… By saying that the offence is not committed if the woman’s husband gives his consent, isn’t the law reducing the women into a commodity?”

The Supreme Court further added that “the provision (Section 497) really creates a dent in the individual independent identity of women when the emphasis is laid on the connivance or consent of the husband. This is tantamount to the subordination of a woman where the Constitution confers (women) equal status.” Lastly, this section clearly mentions that “the wife shall not be punishable as an abettor”. This is highly discriminatory as it seeks to provide legal immunity to a person who is an equal partner in an act that is considered a crime.

Procedurally this act is also flawed. When it comes to lodging a case against adultery, Section 198 of the CrPC mandates that only the husband can lodge a police complaint when a crime is committed under Section 497 of the IPC. Sub-Section 2 of Section 198 of the CrPC says that ”no person other than the husband of the women shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the respective Code”.

Adultery

This implies that if the husband is in a sexual relationship with a woman, the wife has no remedy and cannot proceed against him for adultery. Only the husband of his paramour can do so if the paramour is married. This situation becomes far more alarming when the husband is in an illicit relationship with an unmarried woman. Critics contend that in making the spouse the main individual who can arraign for adultery, the law is established upon the possibility that the status of the wife in a marriage is similar to that of the property of the husband.

There are two to three legal questions on which the Supreme Court needs to give its judgment.

The main issue is whether adultery is a criminal offence. Adultery can be a socially or ethically unsuitable practice yet criminalizing it’s anything but an alternative since society has advanced since the Victorian circumstances thus have our social mores. Around the world, infidelity has been decriminalized in a greater part of the nations and it’s high time that the Courts in India decriminalize it.

Numerous legal activists and social labourers like Talish Ray are of the conclusion that “No marriage or alliance can take away one’s right over one’s own body. Subsequently, while the law on adultery as it is today in the IPC is unfair on the ground of sex, the very presence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity.

These issues will in this manner stay unaddressed regardless of whether the court peruses down Section 497 and gives women likewise the privilege to send their spouses to court. This Section should be struck down to do equity to the very thought of human life and dignity.”

Ironically, it was the British that put forward the adultery law in the IPC, however, it stays unaltered in India despite the fact that the UK has since quite a while ago decriminalized adultery. Presently, it remains a ground for divorce with the legitimate meaning of adultery being “physical contact with an outsider and unlawful organ.”

Conclusion

The Adultery law under the IPC is a dubious law on different tallies running from being sexual orientation inclination to being in a struggle with different laws prevalent. There is no reason behind why the law just punishes the man with whom the married lady is in a two-faced connection with and not simply the women. Likewise, the law fails on the record that it doesn’t mull over the way that numerous individual laws permit polygamy and henceforth, this is a contention between individual laws and the mainstream laws.

In addition, adulterous relationships are not viewed as a criminal offence in numerous nations which warrants a penal sanction and thus a possibility of reformation must be given which needs in the present law. Thus, at the outset, it can be concluded that this law needs genuine amendments to make it more effective and dynamic.

Post written by-
Divyansh Jaipuriar
Gujarat National Law University
BBA LLB

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