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Monday, 25 June 2012

Conversation - X (Women cannot be punished for adultery.)

Avinash: (Reading from the daily " The Express")

"Woman caught with her lover...... Both have been arrested and forwarded to the Court u/s 497, IPC, along with charges of trespassing etc. . ........ Husband files for divorce....... Wife pleads innocence..."

Hey, what's section 497.

Me: That's the provision which deals with the crime of adultery

Avinash: How much jail time are we talking about here for both ?

Me: Upto 5 years with or without fine. And that's not for both.

Avinash: What do you mean ?

Me: I mean only the man will get punished, of course only if the charges are proved.

Avinash: Why? What about the woman ?

Me: You see, as per Indian law, a woman cannot be punished for committing adultery. Its only the man indulging in adultery who can be proceeded against and punished.

Avinash: What ? Are you serious ? I mean even if the woman is equally guilty, she will go scott free. This can't be. It doesn't sound logical. I mean after all law is largely based on profound logic isn't it. Then how can law let go off the woman if she has consciously or deliberately committed the crime of adultery.

Me: I agree that law is more often than not built upon the edifice of sound logic. But sometimes a logic becomes outdated and antiquated due to changed circumstances and therefore the logic as well as the law which it supports, both become questionable. Before I say anything further let me first quote the relevant provision. Section 497 of the IPC defines the crime of adultery and prescribes punishment for the same in the following words :-

"Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be 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 case the wife shall not be punishable as an abettor."

If you read section 497 carefully, you'll notice that the target of the law is the man and not the woman. The provision does not contain words like "whenever a man and a woman have sexual intercourse knowing or having reason to believe that the other is the someone's wife or husband, as the case may be,.....both shall be guilty of the offence of adultery....etc etc" Hence the woman in question is not culpable for adultery which she may have committed.  Not only that, the wife shall not even be punishable as an abettor.

For your information, an abettor is a person who aids, helps, instigates or indulges with another to commit a crime. Thus the woman cannot even be booked as an accomplice for adultery.The mere fact that she is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.

Avinash:  Keep going.

Me: As for the logic behind this provision, section 497 is based on the archaic presumption that a woman is always the naive accomplice deceived and tricked onto bed by a shrewd philanderer, therefore she should be exempt from any punishment, not even as an abettor. The recommendations of several Courts to change this law and make the woman equally culpable for an act of adultery, in view of the changed times, has not yet been adopted.

Avinash: Are you telling me that an adulterous woman suffers nothing for her actions ?

Me: The setbacks that she may suffer are with regard to maintenance or alimony or other allied benefits which she would have normally reaped from her marriage had she not indulged in adultery. But she cannot be punished and sent to jail or fined for commission of adultery as is the case with a man.

Avinash: I see.

Me: There's one thing though which I must tell you.

Avinash: Please.

Me: While on the face of it Section 497 may seem biased against men and oblivious of certain truths about women in the changed times, it is not without certain screaming difficulties for women also, especially married women.

Avinash: Care to explain ?


Me:  There are a few aspects of the provision against adultery under Section 497 which would appear to be biased against women too.

           

a) S. 497 elucidates that if the sexual intercourse takes place between a man and married woman

with the consent of the latter's husband then its not adultery. The expression "without the

consent or connivance of that man,..." in Section 497  makes it clear that if the husband of the adulterous

woman can allow an extramarital sexual relationship then the said act would no more amount to

the offence of adultery. But the law does not provide similar authority to wives with regard to sanctioning

extramarital affairs of their husbands.           





b) It does not confer on the wife the right to prosecute the woman with whom her husband

committed adultery while giving to her husband the right to prosecute the man with whom she

may have committed adultery. (This is because Section 198 of the Code of Criminal

Procedure only allows the husband or any other person who had the care of his wife in

his absence to prosecute the man committing adultery).

c) It does not cover cases where a married man may commit adultery with an unmarried woman.

The expressions " .....to be wife of another man,..." only covers married women, meaning

thereby that if a married man were to have an affair with an unmarried woman, he shall not be

guilty of adultery. This leaves his wife in a disadvantageous position.




It was on these grounds that Section 497 was challenged in the Supreme Court as being a bad law. (In the case of Sowmithri Vishnu Vs. Union of India & Another (1985) )

Avinash: What did the Court decide ?

Me: Well, the Supreme Court rejected the arguments by observing that it is normally accepted that the man is the seducer and not the woman. However the Court also observed that this position may have undergone a change over the years, but it was for the Parliament to take that into account and modify the law accordingly. And the matter has remained as it was, till date.


AvinashNow, that's a revelation. 

56 comments:

  1. Its an established fact that in India( in others part of the world too) whenever we talk about discrimination.. it's always biased towards women..

    there r millions of instances when women take this as advantage.. it can b proved by the fact that.. Dowry Prohibition Act, 1961 is the most abused law of our country..

    An awesome post Anupam !!!

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    1. Thanks Jyoti for your generous words of appreciation.

      I'm glad that you went through the post.

      Superb to have you on board.

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    2. Jyoti...

      I must admit that this is the first time I hear a girl accept that women of India are not the sufferers all the time. India has always been giving a good place for its women like nowhere in the world. In abroad, though the wife is well qualified, she is a dependent and she cannot earn more than her husband.

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  2. An informative post again--is it true that even adultery does not disqualify an ex-wife from alimony?
    BTW even if the law will not punish an adulterous wife,the husband will more than make up for it when it comes out.And nature too--if she gets pregnant then the mess becomes messier!!!!!!!

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    1. It does. I've already mentioned that in the post. An adulterous ex wife forfeits her right to maintenance. Its a bit tricky. If the husband neglects or refuses to maintain his wife then she can claim maintenance. But if she indulges in adultery then she loses that claim. Now alimony is a full & final settlement / payment to wife. I doubt whether after being once fully paid anything can be taken away from her if she commits adultery.

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  3. Hi

    I read about this recently in some newspaper . But ' It does not cover cases where a married man may commit adultery with an unmarried woman.' This one was very new. I had no idea. Basically its a quite meaningless and unjust law.

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    1. I know. I've mentioned that in my post....

      "c) It does not cover cases where a married man may commit adultery with an unmarried woman.

      The expressions " .....to be wife of another man,..." only covers married women, meaning

      thereby that if a married man were to have an affair with an unmarried woman, he shall not be guilty of adultery. This leaves his wife in a disadvantageous position."

      Thanks for going through my post.

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  4. well analysed.. and simple for laymen too!

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    1. Thanks 'pygmalion; for reading the post.

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  5. I didn't know that wives can be exempted from adultery.
    Is there any way common man can appeal to the supreme court to change the law? or can it only be done by the parliament?

    Very informative post by the way. will be a regular visitor from now on. :)

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    1. Thanks Mr. Mani for going through the post.

      A challenge was made against this law (I've discussed that in the post) in Sowmithri Vishnu's case, but the Supreme Court did not strike down this provision. However the Supreme Court is always legally entitled to change its stand with changed times. Who knows ? One has to file a writ petition under Article 32 of the Constitution saying that this law is bad as it discriminates between man and woman on unfounded and bad logic. Things may be different this time around.

      Thanks for deciding to regularly visit my blog, I'm delighted.

      Regards,

      Anupam

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  6. Very informative post. I never knew adultery has so many layers. Indeed the law is archaic with regards to the present times and the 3 ways u have elucidated in which section 497 is biased against women makes me wonder what were the law makers thinking when they framed this one. All 3 sound preposterous to me.

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  7. thnx boys better b aware of sum prying women :P :D, on a serious note never heard abt 497/496 b4 , but certainly after reading this post got to knw alot abt the adulatory laws of my country, nice post thnx for sharing...:)

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  8. Great post. In fact Indian laws are marked with many flaws and people who know this always take advantage of these unknown facts.
    www.rajnishonline.blogspot.com

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    1. Thanks Rajnish. I agree that laws have flaws. But there is barely any nation where laws are perfect. Laws aren't meant to be perfect. But they must necessarily tend to be so.

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  9. Hey, thanks. I'll do one on this too.

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  10. Hey I've been meaning to ask you, do you practice law? This is a very precise post. Clearly shows they need to update certain IPC codes under Indian law.

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    1. No I don't exactly practice law. But consider me it's student.

      Thanks for your appreciation and valuable suggestion, Neha.

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  11. Are you serious?!?! The man is the seducer?! Wow...what happened to it takes two hands to clap and all that crap?!

    So, I can sleep with anyone I want after marriage, and I'll still be the poor innocent one? Wow.

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    1. This law was framed in the year 1860. At a time when polygamy was rampant. Men forced women and the latter feared to raise voice. Therefore the lawmakers at that time thought it proper not to punish women for adultery as in almost all cases of adultery, the women were victims. I agree that times have drastically changed and in my humble opinion the law should catch up with it.

      It's not always about the law my friend. Its about our conscience too. What is law, but a guard against those who have lost their conscience. Those who have it intact do not need a law. If a lady sleeps with anyone after her marriage then she probably should herself walk out of her marriage as she no longer needs the love and company of her husbancd. Lack of punishment in law books is not an encouragement for adultery nor bringing in a punishment will save the husband and other relatives of the lady from the agonizing emotional hurt caused by her act of adultery.

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  12. You have made a crucial law easy to understand, Kudos :)

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  13. Wow. Just wow. Now I would be tempted to ask you if you could explain more laws in such simple terms. I recollect watching TV serials with huge tomes around law study. If only learning about it was this simple we would have more lawyers, judges, courts and less backlog! I agree with your post. In an effort to reduce discrimination, women friendly laws now have women taking advantage of these loopholes all over the place and its disgusting!

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    1. Found it so interesting and informative that I shared it through my Facebook page - Deepa's Kaleidoscope. I think more people need to learn about how outdated our laws are.

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    2. Thanks Deepa. I would love to elucidate laws in as simple a manner as possible. I've already attempted to do it a few times besides this one. Just click the "Conversations (Socio - Legal) option in the Pages area above. Read the conversations on various socio legal issues. Hope you like them.

      Thanks for sharing my work. That's really nice of you.

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  14. Good one. Strong and purpose driven post:) Keep up the good work

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  15. It's archaic. I can't believe we still have laws against adultery. It's not just India we are talking about. Some states in the U.S. have anti-adultery laws in their constitutions—they aren't prosecuted much. Sexism in the language of the law isn't strange. Women, being treated as inferior, have been assumed to be the wards of the state. So, they get a free pass to some things.
    Adultery, by definition, is impossible if one of the parties isn't free to say no. So, we must stop criminalizing adultery. Grieved husbands or wives can sue their unfaithful partners or sign airtight pre-nuptial agreements, but the government has no right to take away someone's freedom for having an affair.
    Laws like these—which support marriage and criminalize anything that supposedly weakens it—ensure that citizens are always bound by ties so that they'll never rise against the government. If a person has a lot to lose, he'll voluntarily hand over his fundamental rights. That's why the government supports marriage and child-bearing with tax-breaks and such laws. But I digress.
    Nice post.

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    2. I humbly differ my friend.

      Adultery is not a simple day to day affair. I find it shocking that we could label it just an affair. Adultery is not a wrong against only one person. What about the children born out of the wedlock, the institution of marriage and the institution of family. Adultery is a wrong against all these entities.
      '
      I didn't quite understand the import of "Adultery, by definition, is impossible if one of the parties isn't free to say no." Be that as it may. Why ape the west in this issue. Haven't we already lost enough individuality by eating, talking, walking, dressing and even living like them. So let's not see what they are doing about their families. If a law strengthens or atleast tends to strengthen family values, then I think we should welcome it. Haven't enough of our parents died in old age shelter homes for us to awaken from our dreamy mimicking of the west. Pre nuptial agreement is a farce. It's like asking me to love someone with conditions. Now please don't tell me that love should also no more be a criterion for marriage sustenance.

      If it breaks it breaks. No matter how heart breaking it might be, one has to let go, if he / she finds his / her spouse indulging in adultery. But please let's have that much shame to not say that we'll continue the marriage and also commit adultery. Why else should we think that the Govt. is taking anybody's right to have an affair. Everyone has a right to have an affair. But not by way of adultery. As I said earlier adultery is essentially a crime against the institution of marriage. It should remain in the law books.

      When it comes to marriage, things change. One of the biggest criterion that at times distinguishes or must distinguish a marriage from an affair is the presence of concern for things beyond compatibility and attraction between partners. Family members, children, relatives. One must remember the possible effects of practicing adultery on these persons.

      Again, I'm not preaching anything to anyone. But let's not throw the baby with the bath tub and decriminalize adultery, because we believe that it is overrated and that some people find it difficult to live in a marriage after they have fallen in love... again. As such divorce is so frequent these days that neither men nor women can be said to be living under compulsion in the present times.

      I have never heard of a more unjustified claim than one which says that laws which strengthen marriage and family weaken the possibility of opposition to Govts' policies or ways. Its like saying only philanderers are true nationalists. The reason why Govt. offers tax breaks on child development initiatives is because India claims to be a welfare State where the State is supposed to take care and encourage development when that is not achievable by individual efforts due to poverty or social disabilities.

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  16. What an Informative and Brilliant post you've written. Well done..

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  17. Dear Anupam,

    Thanks for voting my post, for I came to know about you and this blog. It is a lovely read and I really am becoming a follower of your thoughts. It is also amazing to see that there is someone of my kind; I have always had people telling me that thoughts like mine are foolish and impractical.

    Regards

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    1. Thanks for the appreciation. And brother please don't let the world tell you what you are. Know yourself.

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  18. No doubt most of rules in our country are biased towards women and myriad seems to be a frivolous word when talking about the number of instances where these rules have been misused. But the point is, the rule is not to be blamed. We are. I am sure the people who formulated these rules were more than sound to comprehend the repercussions of these rules, but looking at the social situation, they would have been forced to make them anyway. Now, since the scene is different, should we make another addition to our constitution, which is already the longest one(I am simply disgusted at the thought that we used to take pride in this when I was in school). I think its a shame we have a rule for everything. Its a written proof how uncivilized we as a society are. History has time and again rhymed that the more rules you apply, the more people will break them through. We need to change our societies from the grass root level. We need to stop pointing fingers at others for god's sake.

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    1. I respectfully disagree with you on the point that a long Constitution or the presence of large number of laws solves nothing or becomes counter productive. If we do not make laws for various situations, then the State will be branded as an incompetent and visionless State which does not have laws in place for those wrongs. However I agree that it's always the people who should change first, from the starting level. Then a difference might be made in what is currently the scenario. I don't think that to change the adultery law as it stands today we need to add to / amend the Constitution. Instead Section 497, IPC only, is to be amended by the Parliament and probably Section 198, Cr.P.C. alongwith it.

      Thanks for reading the post and providing your valuable opinion.

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  19. And what about the part where the law says 'without the consent of the man' so if the husband consents then its not adultery? what is it then? what kind of a law even allows a husband to consent, i mean i am not even asking what kind of a man would consent in the first place.

    as to the point at hand, yes you are right the blame should be equal, but i feel like life is so unbelievably unfair to women, you should not really be grudging some bit of a law on paper that is partial to them. No, i concede the point of being fair, but pragmatically speaking, the way our society actually functions, its the women who bear the brunt and the men who mostly go scot free. just saying...

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    1. I know that part is arguably the most horrid part. As if the woman is the property of the husband. I have already mentioned that in my post as follows :-

      a) S. 497 elucidates that if the sexual intercourse takes place between a man and married woman with the consent of the latter's husband then its not adultery. The expression "without the consent or connivance of that man,..." in Section 497 makes it clear that if the husband of the adulterous woman can allow an extramarital sexual relationship then the said act would no more amount to the offence of adultery. But the law does not provide similar authority to wives with regard to sanctioning extramarital affairs of their husbands."

      I agree that the society has been perpetually unfair to women. But don't we have enough gender based laws in place for their benefit. Let's for arguments' sake assume that those laws are not reaping any benefits for women, even then, how can making women immune to charges of adultery help them in any manner. There is no live connection between improving the condition of women in society and making them immune to charges of adultery.

      Thanks for reading and sharing with us your thought provoking opinions.

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  20. A revelation .. I'm surprised that as a common man, how unaware and ill-informed we all are about the laws of the land.

    Thanks Anupam - a very interesting and informative post.

    Keep up the good work.

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    1. I'm glad that I could enrich your information base. Thanks for reasding, Yogesh.

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  21. i have somehow started feeling that we need amendments in the law ! It is the law itself which saves the culprits in many cases.Nice post ! very informative !

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    1. Yeah at times. I agree. Thanks for reading.

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  22. Foolish regulations. Heights of injustice.
    The law talks about "sexual intercourse with a person who is and whom he knows or has reason to believe to be wife of another man"
    I find two issues
    Issue 1: Woman doing adultery is not being considered at all, and the victim (say wife of the husband doing adultry) cannot complain against the accused woman.
    Issue 2: This is most important. The sentence talks about a man having sexual relation with a married woman only. What if a man has a relation with an unmarried woman? Does it mean a married man having affair with an unmarried girl/woman is legal and does not amount to adultery? Please advise or clarify.
    Similarly Section 498A on Anti Dowry harassment and domestic violence is also draconian and puts the man and his family behind bars. Ofcourse in recent times police have been instructed to take care and caution before arresting based on mere complaints. However, there are still several false cases doing rounds in courts.....which are pending for years or decades....instead a law should be made to quickly dispose these cases and grant divorce (given that in any case the lives of both partners is screwed up)...atleast after legal separation both partners can mind their own business.

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    1. f course women being adulterous is not considered at all. That's the whole point of this post Sekhar. See the title.

      Every point that you have raised has been dealt with in the article. It's my request to you kindly go through it again.

      Yes you are right. An affair with an unmarried woman does not amount to adultery by the husband.

      Thanks for reading Sekhar and sharing your valuable insight.

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  24. Anupam,

    a gr8 discussion, i recently came across an interesting case where the husband and wife filed for a mutually consented divorce then after six odd months the husband filed a case of adultery on another man but did not tell the wife neither withdrew the MCD petition. The divorce was duly granted and the other man is still getting screwed trying to prove his innocence........... funny how sometimes the law can be misused too

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  25. Hi... If a married man is in a relationship (physical) with an unmarried women, what are the implication of this as per Indian law to all three i.e Wife, Husband and the third person.


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  26. Also tell me what is the punishment for a man and the woman with whom he has an affair.

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