Adultery is consensual sex between a married person and a person who is not their spouse. Section 497 of Indian Penal Code deals with adultery. The text of Section 497 reads as: “Adultery-whoever has sexual intercourse with a person who is or whom he knows or has reason to believe to be 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”. Let us put the situation like this: a man x has sexual intercourse with Z, who is the wife of another many, without the consent or connivance of y. Under such circumstances, x will be guilty of adultery and not the woman z though both are equally party to the act.
What is wrong with such an act? The archaic Colonial law is bizarre in many aspects and lacks suitability in 21st century India. The archaic penal code is lopsided and reflects the patriarchal mindset of the Victorian era. The section is discriminatory against women, depriving them of all agencies. Almost uncannily, the adultery law relegates woman into an object of man’s desire, who has no right over her own body and mind.
The man, as a custodian of a woman, possesses her body, authorizes her consent and plays with her as an object of sensual pleasure. Where is woman’s agency here? She does not even possess the right to consent vis-a-viz sexual intercourse. According to the adultery law, it amounts to adultery when the consent of the husband is not taken prior to sexual intercourse. What if the husband gives consent? What if the husband himself connives with another man in pushing her to establish the sexual relationship with another man? The law is silent about these questions.
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If adultery means establishing a sexual relationship outside marriage, then it should apply equally to both sexes. What if, reversing the situation, a woman x establishes a sexual relationship with a many, who is again the husband of another woman z, then what will happen? What about the plight of z, who is the wife of y? The law does not establish her authority over the husband to give consent. Nor does it establish her right to prosecute the woman x, who has established a sexual relationship with her husband y. Bizarre it is, it does not even qualify to be adultery according to section 497 because according to the section, it is deemed adultery only when the woman, out of bounds in marriage, establishes illicit liaison outside marriage without the consent of her husband, not the other way round; not when the man establishes illicit liaison with another woman outside of marriage, without the consent of the concerned wife. O, how does the consent of the woman matter? She is just a property. Isn’t it? At least, according to the law.
What if the woman who the husband establishes sexual intercourse is an unmarried woman, considering that the sex is consensual sex? Since the man is in marriage and the woman is not, who should one take permission from? Is it that sexual intercourse between one married man and one unmarried woman does not qualify to be adultery. in this case, where would the married woman go for complaint? She even cannot file a complaint of adultery against her husband or the other woman involved. In this case, she has got only tissue papers to wipe her tears or go for a divorce which is again another hassle to wade through. Because one has to establish the wrongdoings before the court to go for separation.
Is this that adultery only a phenomenon of the male world, constructed by them with a woman as a mere object of play? Why be an only illicit relationship with the married woman by a man considered adultery? Why is pati parmeshwar’s permission so sacrosanct, so much so that if one unmarried woman has sex with a married man it does not even qualify to be adultery? The law presupposes that women are devoid of agency, given to man in marriage, who is supposed to take care of her in every aspect of life. It is wrong if she enters into an extra-marital relationship without her husband’s consent. But, it is right if she does the same with consent from her husband.
Even the penal system is lopsided. It provides punishment only for the man, but not to the woman as an abettor as if the only man was the seducer who would seduce other’s wife knowing that she is the wife of another man but the woman only a passive object. But going logically, she is also equally guilty, if not more.
Undoubtedly this archaic law clearly establishes husband’s right over the wife. That’s ok. But it fails to establish wife’s right over the husband. A woman is not a piece of furniture without her own mind and voice. This particular law reflects the Manuvian view of sex, which postulates sex as a means of pleasure for men. Women are only to cater to the sexual needs of men. This view of adultery found resonance in 19th Century Victorian era colonial minds who would codify the adultery law in their colonies. The right swipe of Victorian man with Manu gave birth to Indian Adultery Law. But, is it still fair to hold on to this outdated law?
After the Britishers left us, we had scrapped over 1200 archaic laws. But, we still continue to follow some like section 377 (deals with homosexuality ) etc. Interestingly Britain herself had done away with section 377, decriminalizing homosexuality and sodomy. But, India still holds on to the legacy of her colonial masters. It is high time, we should bring in competent laws keeping in view the democratic aspirations of 21st century India. Gender neutrality is a must in law for gender equality in society. On the one hand, we want gender equality, at the same time, we cannot have gender discriminatory laws. A PIL has been filed challenging section 497 as gender discriminatory. Now, hopefully, the Court will take the right course.