Adultery Law should Allow Women to Charge their Spouses As Well

Indian adultery laws are discriminatory towards women and its penal provisons must be scrapped, writes Nishtha Gautam

Legal Patriarchy

• A 19th century law criminalises adultery in India
• While a man can be prosecuted under section 497 IPC for adultery law says nothing about women
• Law has no provision for women being betrayed by their spouses
• Decriminalising adultery just one part of the problem other being making the law gender neutral

Laws invoke history. Sometimes in the most unusual manner. Recent discussions over the adultery law remind me of a friend who was in love with an air force officer a decade back. She, an extrovert Bengali working as a journalist in New Delhi, flaunted her tall dark “fighter pilot” boyfriend from Haryana. One day she shared how her knight in shining MiG was dangerously possessive of her and lost his cool after she met a friend, an army officer, for coffee. He not only forbade her from meeting her friend but also threatened to “sort out” the latter. “Does he not know that his career can be sealed for stealing the affections of a brother officer’s wife?” he had thundered on phone.

A euphemistically worded serious offence in the armed forces, it sounded laughable in this unmarried couple’s case. What that threat implied, however, is serious business: the authoritarian establishment of a man’s ownership of a woman. This is what the Indian adultery law tends to do at large.

Moving from personal to official history, Section 497 of IPC has been with us since 1860. Criminalising adultery came naturally to the colonial lawmakers since it was so in England and France. But how were they supposed to negotiate with the socially sanctioned practices of polygamy and concubinage in India? In an act of compromise, it was ordained that a man could enrich his own zenana, as long as his dalliances did not encroach upon that of another man’s.

Skewed Laws 

Macaulay and Co’s decision to prosecute only the lover for the crime of adultery was thought to be fair to the women. What it actually did was push them to a sub-human status. It was an extension of the practice of dueling, where two men fought with each other using deadly weapons to settle a point of honour.

The most problematic aspect of this law was appropriation of consent: establishing the husband as a giver of consent on the wife’s behalf. Unless complemented with rape laws, it puts the wife at a significant disadvantage. Additionally, Section 497 does not contain any provision for women whose husbands have sexual relations with unmarried women. Such adultery can only be dealt within the ambit of civil laws. In effect, while the wronged husband can seek punitive action against the transgressing lover, the wronged wife cannot do the same.

Decriminalising Adultery

Once enacted, the law put women at a disadvantage not only in legal but also existential terms. It created a strange equivalence between adultery committing and adultery suffering wives: denying agency to the former and the right to assert ownership (similar to the men) to the latter. As the legal history of adultery in India suggests, this paradox has hardly been addressed in 155 years of Section 497’s enactment despite cries of “gender bias” from both men and women. Feminist concern about reducing women to the status of “chattel” is as valid as men’s grudge that the cheating wife, the abettor, cannot be prosecuted.

Amidst cries for amendment, the very utility of Section 497 is now being questioned. A gender neutral adultery law will have provision for prosecuting the cheating wife as well as the unmarried woman for her sexual relationship with a married man.

Interestingly, both these provisions have met with resistance in 1971* and 1985 respectively. In a landmark judgment earlier this year, the Supreme Court ruled that extramarital affair of the husband by itself does not amount to ‘cruelty’ unless there is ample evidence to establish the opposite. In a guarded manner, the SC recognised sexual autonomy in a relationship involving consenting adults. But can the State afford to relinquish paternalism is the question we need to ask.
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* A recommendation for punishing the cheating wife was decried as making “the property also liable to punishment” by Anna Chandi a member of the Law Commission reviewing the IPC in 1971. On the other hand, in 1985 (Smt. Sowmithri Vishnu vs Union of India & Anr on 27 May, 1985) the SC rejected the demand for inclusion of husband’s sexual relations with unmarried women in the definition of adultery, thus paving the way for wife’s right to prosecute the lover, as “a crusade by a woman against a woman.”
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(The writer is Associate Fellow, Gender Studies, at the Observer Research Foundation)