The Supreme Court's recent verdict that a woman in an illicit relationship with a married man cannot be punished for adultery despite being an abettor has triggered a fresh debate over inherent gender bias in the law on the controversial subject in India.
The SC quashed the case of adultery registered against Andhra woman Kalyani at the instance of another woman Sailaja who alleged that her husband was in an illicit relationship with the former. While absolving Kalyani of criminal charges of adultery, the SC said: "The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery."
The basic rationale behind criminalising adultery is to protect the sanctity of the institution of marriage. But unlike other countries, the law in India is biased against men inasmuch as a woman cannot be prosecuted for adultery even when she is an abettor.
As the law stands today, adultery is only committed against the husband of the adulterous woman. A man cannot level an adultery charge against his wife but can do so against the "other man." The Indian law treats wives as their husbands' property and considers adultery is an offence that a man commits by trespassing upon the property (wife) of another. That is why she is not liable as an abettor.
A famous example is that of Indian Navy Commander KM Nanavati who shot dead businessman Prem Ahuja on April 27, 1959 for his illicit relationship with his wife Sylvia. While Nanavati faced prosecution, Sylvia went scot free.
In 1951, one Yusuf Aziz challenged the constitutionality of Section 497 of the IPC but the Bombay High Court upheld its validity, saying the Constitution has such special legislations for women. In 1971, the Fifth Law Commission recommended changes in the provision but these were never implemented.
The Justice Malimath Committee, which was tasked with suggesting reforms for the criminal justice system, had in 2003 suggested changes to make Section 497 gender-neutral. "Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband)," it said.
However, the National Commission for Women (NCW) had recommended decriminalising adultery in 2006. The NCW maintained there may be cases where a woman, whose husband may have cheated on her, would still want to save her marriage. It had favoured making adultery a civil wrong. NCW chairperson Mamta Sharma says, "Women should not be punished for adultery, as they are victims and not offenders in such cases." The NCW wanted amendment to Section 198 of CrPC to allow women to file complaints against unfaithful husbands. Considering women's position in India, the NCW said Section 497 should not be made gender-neutral.
Law Commision vice chairperson KTS Tulsi disagrees. In view of many women now holding positions of power, he feels, "The law should be gender-neutral and it should be possible to prosecute women in a suitable case."
Even as critics feel the existing provision displays a feudal mindset, a change in the law is not on lawmakers' agenda. Is it time to correct the gender bias in the age-old law? "No", says human rights activist and senior counsel Colin Gonsalves. "Law is required to be biased in favour of women. The Constitution permits it. The bias in the law on adultery is constitutionally valid," he adds.
But senior advocate Pinky Anand finds it demeaning. "It is high time we change this law because it is based on the concept that women are chattel and, therefore, can commit no offence. If a man commits (adultery) it's a crime and if a woman commits adultery, it's not. This cannot go on. The gender bias in the law must be done away with," she says.
In the recent past the legislature, it seems, has preferred to maintain the status quo rather than taking a reformist position. But the judiciary has often intervened to interpret laws to suit the needs of a changing society. Be it the case of legalising homosexual relations between consenting adults in private or legalising passive euthanasia, courts have tried to give solutions to the problems faced by society. Can we expect a similar initiative from the judiciary on this issue?
Fact file: How infidelity stacks up
What constitutes adultery in India?
According to Section 497 of IPC, "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."
Thus under Section 497 of the Indian Penal Law: Adultery can be committed only by a man and not by a woman. The person committing adultery must also know or should have reason to believe that the woman with whom he had intercourse is the wife of another man, and the sexual intercourse should not amount to the offence of rape.
Further, section 198 of Criminal Procedure Code, 1973 allows a husband to bring charges against the man with whom his wife has committed adultery. But it explicitly denies the husband the right to charge his wife with adultery and also denies a woman the right to charge her husband with adultery.
Laws on adultery in other countries
Unlike India, adultery is not a crime in most European Union countries, including the UK, the Netherlands, Belgium, Finland and Sweden. But it is still illegal in Switzerland.
In the US, the law on adultery varies from state to state. But even in the states that regard it as an offence, punishment varies.
For example, in Michigan it's punishable with life imprisonment while in Maryland the punishment prescribed is just a fine of 10 dollars.
In western jurisdictions generally there is no gender bias in the laws on adultery and it isn't criminally prosecuted any more. But it can have consequences in civil matters such as divorces and child custody issues.
In many Islamic countries laws on adultery are enforced very strictly and wives are often punished more harshly than husbands. In some cases married women are considered guilty of adultery even when they have been raped.
In 2001, Safiya was sentenced to death by stoning by an Islamic Sharia Court in North Nigeria. Later the Islamic Appeal Court ruled that the act of adultery was committed before it was made illegal.
How religions view adultery
All religions generally disapprove of adultery and consider it a major sin. In Christianity, the Old Testament forbids adultery and the punishment is death. But in the New Testament, Jesus describes it as a sin but refrains from punishment.
In Judaism, the seventh commandment forbids adultery. But, a married man's relations with an unmarried woman was not considered adultery. Only a married woman's consensual sexual intercourse with another man amounted to adultery and both the woman and the man were considered guilty.
The penalty for adultery is stoning for both man and woman. Islam stresses that sexual relations should be restricted to marriage and for creation of a family. Premarital and extramarital sex are considered sins. Unless purged by punishment, says Islamic law, sinners are also liable to punishment after death.
Hinduism too disapproves of adultery. But certain Tantric branches believe that enlightenment can come through divine sex.
In Buddhism, one should neither be attached to nor crave sensual pleasure. But Tantric Buddhism too teaches that sexual intercourse can be used for higher spiritual development.