The fairer sex

The law relating to adultery in India has been under the microscope of late. There has been a wide-ranging debate as to whether the law as it prevails today actually ‘benefits’ any of the parties involved. The entire onus of the act of adultery is on the male of the species, with the female going totally scot-free – in fact, she has been specifically exempted! The law as it stands in India, punishes only the male of the species and refuses to even acknowledge the fact that the female may have been an active participant in the alleged act which is penal in nature and ‘shocks the conscience of society’..To me, it is certainly apparent and beyond doubt that the prevailing law is not in consonance with the present day world because apart from being discriminatory, it also subjugates the very interest of women, which it claims to protect..The law relating to adultery in India has been under the microscope of late. There has been a wide-ranging debate as to whether the law as it prevails today actually ‘benefits’ any of the parties involved..Let us see what the statute book has to say on this subject. Section 497 of the Indian Penal Code provides thus:-.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 a case the wife shall not be punishable as an abettor..The aforesaid provision raises some very interesting issues. Firstly, the entire onus of the act of adultery is on the male of the species, with the female going totally scot-free – in fact, she has been specifically exempted! Then, there is the question of ‘consent’ of the husband of the woman involved. Lastly, the questions of equality of sexes before law and conformity with the equality provisions of the Constitution arise..It is important to ask at this stage whether such a law is indeed required to be on the penal statute books in 21st century India, especially when it is no longer there in many contemporary societies including the United Kingdom, from where a large part of our penal concepts have been borrowed. The law as it stands in India, punishes only the male of the species and refuses to even acknowledge the fact that the female may have been an active participant in the alleged act which is penal in nature and ‘shocks the conscience of society’..While there may be some merit in the argument that there may have been a need for such a law in a male-dominated society, the situation is far different when it is applied in the modern context. Moreover, family law treats both the sexes as equals when it comes to adultery – why then should the penal law be any different? Would it not suffice if this ‘offence’ was simply referred to as a civil wrong?.It is pertinent to note that neither can the husband of the woman involved in the alleged adulterous relationship move to prosecute his wife on the grounds of adultery, nor can the wife of the man involved in the alleged adulterous relationship prosecute her husband based upon these grounds. The only locus to complain is that of the woman who is herself an active and willing participant (for it would amount to the offence of rape in case she was an unwilling participant) in the alleged offence. Looking at this locus a little more deeply, we understand that it is in fact, the locus of the husband of the woman who is actually involved in the alleged act. The manner in which this provision has been written by the lawmakers and interpreted by our courts actually makes the ‘offence’ of adultery an offence against the husband of the woman involved in the adulterous act!.The constitutional validity of Section 497 was first challenged before the Supreme Court in the case of Yusuf Abdul Aziz wherein the challenge to the constitutionality of this provision was disregarded by the Court on the grounds that Article 15(3) of the Constitution entailed, “Nothing in this article shall prevent the State from making any special provision for women……”.The Supreme Court has, in the Sowmithri Vishnu case, held adultery to be an offence against the matrimonial home itself and not an ‘offence’ that one adulterous spouse commits vis-a-vis the other. This brings the question of adultery into the social domain. If that were the case, why then are spouses allowed to use adultery as a ground for divorce under matrimonial law?.The Malimath Committee, the 42nd Report of the Law Commission, the National Commission for Women as well as eminent jurists have all suggested a relook at the provisions of the law relating to adultery, though for different reasons. In fact the Malimath Committee Report on the Criminal Justice System (2003) had even suggested an alternative wording for this section, if at all it is still to be retained on the statute books. To me, it is certainly apparent and beyond doubt that the prevailing law is not in consonance with the present day world because apart from being discriminatory, it also subjugates the very interest of women, which it claims to protect..Parikshet Sirohi is an Advocate with The Chambers of Law in Delhi, and a litigator in the Delhi High Court.