By Tanya Arora
The word adultery in its general understanding means when a pure substance is adulterated or made impure by contamination. Its usage in the legal sense is not too different. Adultery means when a pure and honest relationship between husband and wife is contaminated or adulterated by an extra-marital affair, making the said relationship impure.
However, what exactly does one mean by extra-marital affair? What constitutes an extra-marital affair? Where does one draw the line between friendship and affair? If a relationship between two people of the opposite sex is purely platonic but they hide this relationship from their respective spouses, would it still be considered an extra-marital affair?
Although the term extra-marital affair has not been described in the Indian Penal Code, we can understand it as the opposite of what is mentioned under the term “marital relationship”. Marital relationship means the legally protected marital interest of one spouse to another, including marital obligations such as companionship, living under the same roof, sexual relation and exclusive enjoyment of it, having children, their upbringing, services in the home, support, affection, love, liking and so on.
The Indian Constitution has been hailed for being progressive, yet as far as decrees go, the Indian Penal Code is still bound in the shackles of some archaic laws, with its adultery law being the first in line.
When taken literally, the words of this law state that women are not to be charged for adultery, even when they are willing and equal participants in the act. Hence it has been the subject of various debates, with some contesting that it seems to be protecting women and is therefore unfair to men. On the other hand, if interpreted differently, the law seems to be infantilizing women in the blatant omission of blame.
This bizarre law is stated under Section 497 of the Indian Penal Code. It provided that a man who had sexual intercourse with the wife of another man, without the consent or connivance of that man, and where the intercourse did not amount to rape, was guilty of adultery; the wife was not punishable as an abettor.
One major flaw is that the law criminalizes only one form of adultery wherein the man can be held liable for a crime that both the man and woman have committed equally. It is made to look as if a woman is incapable of making rational decisions and is therefore exempted from punishment.
Another major flaw is that if a man commits adultery with another woman who is a widow or unmarried, the wife cannot hold the husband guilty of adultery and is totally helpless in this regard. This is reinforced in V. Revathi v. Union of India, AIR 1988 SC 835.
The Supreme Court held that Section 497 was designed so that a husband could not prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery; the law permitted neither spouse to strike the other with the weapon of criminal law.
Regardless of whether one considers oneself a feminist or a men’s rights activist, it is evident that this law must be done away with or comprehensively modified. The author argues that the law is inconsistent with modern notions of equality and that women have been reduced to a form of property of their husbands.
Most developed countries consider adultery a ground for divorce and have not criminalized the act, and this holds for both husband and wife. Section 497, in the author’s view, blatantly targeted protection of the husband’s property rights.
Adultery – A Ground for Divorce
Either party to the marriage may present a petition under Section 13(1)(i) of the Hindu Marriage Act, 1955 on the ground of adultery of the respondent.
Before the Marriage Laws (Amendment) Act, 1976, the petitioner had to prove that the other party was living in adultery, which would cover a more or less continuous and habitual course of action. After the passing of the 1976 amendment, even a single and isolated act of infidelity became sufficient ground to obtain divorce.
In case of adultery, direct proof is difficult to obtain and one has to rely on circumstantial evidence. The burden of proving adultery in a matrimonial case is on the person who makes the allegation. Since proceedings under the Act are initially civil in nature, the standard of proof is preponderance of probabilities and not proof beyond reasonable doubt.
Conclusion
The article concludes that the penal law of adultery in India is premised on a historical social setting and outdated assumptions of sexuality, sexual agency and unequal marital rights and obligations. It unmistakably protects the rights of the husband and not the wife and is premised on gender discrimination. The author calls for a serious relook and revision so that a person, male or female, who is married and has sexual intercourse with someone other than the spouse without the spouse’s consent or connivance can be made criminally responsible, or alternatively that adultery be decriminalized.