India’s Adultery Law that falls under section 497 of the IPC is, to say in the simplest of terms, pretty screwed up because it is overtly biased against men and, ironically, doesn’t protect aggrieved women.
The one-way law holds a man responsible for adultery and disregards the complicity of a woman (adultress) altogether.
Section 497 states:
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.
Let me simplify that for you.
When a couple, that is married to different people or one of them is married to someone else, indulges in consensual sex, the man and only the man is liable to be booked under the adultery law and the wife of that adulterer doesn’t have the provision to file a case against him or the woman he’s been cheating on her with.
So, if Rahul (who is married to Tina) gets involved with Anjali (who is married to Aman) with her consent, then Rahul shall be booked and Anjali shall not even be questioned.
Moreover, Tina doesn’t get to file a case against either Anjali or Rahul.
Here’s what legalservicesindia.com states: …However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
Obviously, the law is archaic and quite fucked up. It doesn’t fit the bill of 2017- the woke and increasingly feminist year.
Men and women are equal and this law overtly defies equality.
In fact, as advocate Kaleeswaram Raj, who presented a case against it before a three-judge Supreme Court bench on 8th December 2017, put it, the law violates Article 14 (equality before the law), 15 (no discrimination at the hands of the State) and 21 (no deprivation of personal liberty) of the Indian Constitution.
Raj was advocating a petition filed by non-resident Indian, Joseph Shine, to contest the constitutionality of the adultery law, reported The Indian Express.
He was quoted by IE as saying, “When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability.”
Even though, as Raj pointed out, the provision has been challenged thrice previously, in 1954, 1985 and 1988, it did no good.
However, this time, the three-judge bench, including the Chief Justice of India, Dipak Misra, has decided to take another look at the law.
A notice regarding the reconsideration of section 497 has been sent to the Centre.
The SC | Source
Concluding in the words of the CJI,
Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband… A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.
News Source: The Indian Express