Adultery laws in India: Whether Biased Against Women Or Men

Commonly called as 'Cheating', Adultery is an act where a married person gets involved in sexual relations with someone else than his wife. Extra marital affairs are not new to our society, even the Puranas have described cases like that of Indra and Ahalya, which led to the lady turning into a sculpture. The act has been considered as immoral and sinuous since ages.The Vishnu Puran (3.11) says that 'A man should not think incontinently of another's wife, much less address her to that end; for such a man will be reborn in a future life as a creeping insect. He who commits adultery is punished both here and hereafter; for his days in this world are cut short, and when dead he falls into hell'. Other scriptures of different religions such as Buddhism, Taoism, Christianity etc. also describe the act of adultery as immoral.

In the earlier times, women were treated as the greater sinner in cases of adultery, and higher the class of the women higher was the degree of the crime. Not, much has changed in the Indian society since, but the fact that we now have laws. Section 497 of the Indian Penal Code defines adultery as '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'. Also, Section 13 (1) (i) of the Hindu Marriage Act, 1955 describes adultery as “Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.”

This might be one of the rare instances where the Religious Law makes more sense than the secular one. Criminalizing adultery is one thing, but being gender biased about it is another. Our penal code makes it very clear that in a case of an extra marital affair, it is ONLY the man who is responsible and should be punished.

Let's Read the statute line by line. It starts with " Whoever has sexual intercourse with a person who is and he knows or has the reason to believe...." All okay till here but as you jump to the next line, "...to be the wife of another man without the consent or connivance of that man.." in the next few words the statute prescribes a jail time which can extend to 5 years and/or fine for the man involved in the affair.

There are many statutes which seem unjust whether on the grounds of gender, caste, religion etc. but in the end, there always is a scope of a just interpretation on ad hoc basis by the judiciary. Although in this case, the statute ends with the words "In such cases, the wife shall not be punishable as an abettor ". That's where the statute totally eradicates any scope of a just interpretation.

There has been a great discussion with regard to the law not being gender neutral. The Malimath Committee, back in 2003, in its report regarding 'Reforms in Criminal Justice System', suggested to the union government about the required ingredient of gender equality in the statute, but no suggestion has been implemented till date.

A man can, although, move the court for a divorce petition on the ground of adultery by his wife and according to section 125 (4) of the CrPC a man need not pay monthly allowance, otherwise required, to his wife living in adultery.

Conclusion:

We've overcome the medieval times when the woman in an extra marital affair was considered as the prime sinner, but how far have we come? The adultery law makes it clear that a married man is to be punished with a half-a-decade sentence for committing adultery but a woman, on the other hand, may have as many extra marital affairs as she likes. With the society moving towards the direction of gender equality this law has a clear-cut gender biasedness. This also shows the objective approach of the laws towards women. An approach which thinks that it's the men who rule the world and make use of women. This law makes the women superior and inferior at the same time. With the number of cases increasing day by day, there's a strong need for amending these laws towards gender equality, that's the best way the government can contribute in fighting those who use the law as a weapon for their own benefit.