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The law on adultery is asymmetric

Section 497 of the IPC is clearly out of step with the founding ideals of the Indian Constitution, which —among other things — guarantee equality before law and non-discrimination on account of sex

opinion Updated: May 17, 2018 15:33 IST
In recent judgments, involving the employment of women as bartenders or as make-up artists, the Supreme Court has made clear that invidious sexual distinctions founded on generalisations or stereotypes about the nature, character and abilities of the sexes are inconsistent with the Constitution(AP)

When the Supreme Court reconvenes in July after its summer vacation, one of the first cases it will hear will be a constitutional challenge to the crime of adultery. Section 497 of the Indian Penal Code makes adultery a punishable offence, but not equally so. The section is applicable only to “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”, and goes on to state that “in such case the wife shall not be punishable as an abettor.”

Section 497 is part of the original penal code, drafted in 1860, and reflects the Victorian morality of its colonial framers. The plain language of the section reveals four things: first, even though adultery requires two participants, it is only the man who is deemed to be the offender; second, the woman is not even deemed to be an “abettor” to the offence; third, adultery does not even apply if a married man has sexual intercourse with an unmarried woman; and fourth, the offence is curable if the third party in the case — the husband — “consents” to the sexual intercourse between his wife and another man. As a corollary to this, Section 198 in the Code of Criminal Procedure stipulates that it is only the husband who has the right to file a criminal complaint and prosecute the offence of adultery. In short, adultery is a crime, but only if an unmarried man has sexual intercourse with a married woman, and only if her husband withholds his consent and decides to prosecute.

This strangely asymmetric character of Section 497 makes sense only if we reflect upon its underlying logic. First, the Section is based upon sexual stereotypes that attribute sexual agency to men, and passivity to women; or, in simpler language, men are the seducers (and therefore criminally liable), while women are simply the seduced, and unable to account for their actions. Second, in limiting the power to prosecute to the “aggrieved” husband (and not to an aggrieved wife in cases where her spouse has sex outside marriage), while making the crime itself conditional upon his “consent”, the Section is founded upon the idea that, in a marriage, the status of the wife is akin to that of her husband’s property.

Whatever the status of these ideas in the 19th century, they are clearly out of step with the founding ideals of the Indian Constitution, which — among other things — guarantee equality before law and non-discrimination on account of sex. And in recent judgments, involving the employment of women as bartenders or as make-up artists, the Supreme Court has made clear that invidious sexual distinctions founded on generalisations or stereotypes about the nature, character and abilities of the sexes are inconsistent with the Constitution.

The only hurdle in striking down Section 497 as an outmoded and unconstitutional penal provision is that in 1954, the Supreme Court upheld its constitutionality. In Yusuf Abdul Aziz v State of Bombay, the court invoked Article 15(3) of the Constitution — which allows the State to make “special provisions” for women and children — to hold that since Section 497 exempted women from criminal liability, it was protected by Article 15(3). This was a clear mistake.

Article 15(3) is meant to be a provision sanctioning affirmative action, through which the State can take steps to remove structural barriers that often operate to deny women full and equal participation in society. It was never meant to endorse a law that conferred some superficial benefit on women, but did so on the basis of the same stereotypes that were responsible for those very barriers that the Constitution was designed to remove.

Earlier this year, when it agreed to hear a fresh challenge to adultery, the Supreme Court indicated that it had understood this when — speaking through the chief justice — it observed that Section 497 effectively treats women as “victims”, and through the consent clause, “creates a dent” on women’s individual identity. When the court takes up the case for hearing, it will, hopefully, take this logic to its conclusion.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal

First Published: May 17, 2018 15:33 IST