LEGITIMACY OF ADULTERY LAWS IN INDIA

October 5,2018 Friday

Since its inception, the law on adultery in India has been subject to controversy
with regard to several fundamental issues. The legitimacy of these laws in India
has been argued based on their alleged tendency to emanate a very clear sense of
gender bias. This article deals with issues surrounding the very conception of
adultery by the law makers.
Adultery is the indulgence in voluntary sexual intercourse of a married person
with someone other than his/her spouse. It is the intentional violation of the
marital bed and the offence of incontinence by those persons entered into the
bond of marriage. However, such legal definitions of adultery vary from one
country to another and statute to statute, while adultery is voluntary sexual
intercourse between a woman and a man who is not her husband in some places,
it is voluntary sexual intercourse between a woman and a third party without her
husband’s consent in other places.
In India, the offence of adultery is defined under Section 497 of the Indian Penal
Code, 1870 which states,
“Whoever has sexual intercourse with a person who is and whom he knows or has
a 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 the offence of Adultery”.
Therefore, in order to prove adultery the following ingredients must be identified-
The adulterer must have had sexual intercourse with the wife of another man.
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Clear indulgence in sexual intercourse must be proved on the part of the accused.
In case, the act does not involve actual sexual intercourse and ends at the stage
of preparation itself, it will not be attracted by this section. Thus, proof of sexual
intercourse having taken place is vital for conviction on adultery. In the case of
Kashuri v Ramaswamy, it was held that if the act of sexual intercourse could not
be conclusively proved, it must be inferable from the facts and circumstances of
the case.
Sexual intercourse with a prostitute, unmarried woman or a widow would not fall
within the ambit of this section.
The adulterer must have had knowledge or must have had enough reason to
believe that the woman is the wife of another man.
The adulterer must have had sexual intercourse without the consent of or
connivance of the husband.
The adulterer must have had such sexual intercourse that did not amount to rape.
The married woman must be above the age of 16 and a consenting party to the
sexual intercourse. It is necessary for the married woman to willfully have sexual
intercourse with the man. If she does not consent to the act, it would amount to
rape and not adultery. In such a situation the husband’s consent is immaterial.
However, if the woman is below 16 years of age, her consent to such sexual
intercourse may also be immaterial and would constitute rape.
If the above mentioned law is analysed quite generally it can be seen to be
problematic in more than one way. However, for the purpose of understanding, the
problems can be broadly discussed under the following:
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1) Discrimination on the basis of sex.
In the case of Yusuf Abdul Aziz v. State of Bombay, the discriminatory aspect of
the law was challenged with due cause and reason. The appellant who was
accused of adultery relied on Articles 14 and 15 of the Constitution which explicitly
preach equaltity and disallows discrimination on any basis. However, Article 15(3)
of the Constitution says, “Nothing in this article shall prevent the State from
making any special provision for women.......... ". Hence, the justification for the
provision is that it was originally meant to be a special law deemed to protect
women. This justification was reiterated in subsequent judgments of the Supreme
Court. The Supreme Court, in these cases, relied on the justification that an
outsider to the couple in matrimony, who poisons their peace in married life,
should alone be punished.
effect of this provision that may be worth pointing out is that in cases where a
married man indulges in sexual intercourse with an unmarried woman, the man
cannot be charged of adultery although his wife and the unmarried woman are
sore victims of such an act.
2) Adultery, a criminal offence.
The strict sanctions for the crime of adultery, give rise to a valid debate on
whether criminal punishment is mandated as a deserving punishment for adultery.
The basis on which the concept of criminalizing adultery rests is that it deters the
adulterer from committing the crime again. This was an apparent attempt to
counter the notion that most laws have been made to a man’s advantage. The
subsequent claim of the legislators is that on enactment of such stringent laws,
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wives are not deprived of their husband’s attention, and no extramarital relation
can be maintained without there being legal action for the same.
Furthermore, marriage is a bond between two individuals who are over the age of
majority and are of sound minds. The discretion to maintain any relationship with
someone other than one’s spouse therefore, should be given to the parties
involved. However, such discretion should be restricted to the sanction imposed
by personal law i.e., a valid ground for divorce. Marriage is found to be within the
ambit of personal laws under which it can be a valid ground for divorce and hence
it seems rather redundant that Criminal Law must be used to meet out an added
punishment. This proposition has also been supported by the National Commission
for Women (NCW) which recommends that civil remedies must be ensued for
perpetrators of adultery and not criminal sanctions as mixing personal law with
criminal law is unwarranted.
Therefore, adultery cannot be said to be a criminal offence as the act of adultery
is simply effected by one’s personal life, whereas, a crime is an offence against
the State. Hence, by rethinking the purpose behind the criminalization of adultery,
and eventually disregarding it as legitimate law the progress of women from being
perceived as helpless to being on par with men and equally self-sufficient, can be
achieved.
In conclusion, it must be kept in mind that adultery was drafted into the Indian
Penal Code, 1870 during the existence of the Colonial Rule in India. The prevailing
conditions at this time were such that a woman was looked at as being the mere
property of a man. However, in the present day, women are not mere chattel
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whose identities are defined by the men surrounding them, but by their own
individual personalities.