bheema (vrikodhara) wrote,

Adultery law and gender bias

Previously I had occasion to take a quick look at the adultery law in India. [Please check the link.]

As I understood it, the law punished the adulterer (the man who had sex (not amounting to rape) with the wife of another man, without the consent of the second man) as well as the wife who had sex outside marriage. Thus, the law provided some relief to a man whose wife had an affair without his consent. However, there wasn't any symmetrical relief to the woman whose husband has an affair without her consent. From my reading of the law, I thought the bias was against women.

Given that background, I was surprised when I saw a ToI headline screaming 'Adultery law biased against men, says Supreme Court'. My first instinct, given that it was a ToI report, was that they had made a mistake.
However, as it turns out, I had made a small mistake in my previous post.

ToI reporter got it right, when he wrote that 'Section 497 of the Indian Penal Code .. punishes a man alone for adultery for having consensual sex with a married woman'. So, in the case of adultery, only the man who had sex with someone else's wife is culpable. The unfaithful wife, on the other hand, cannot be punished.

But it still didn't change my basic argument, since Section 497 seems to treat the wives as chattel. There isn't any adultery if it is with the consent or connivance of the husband. Moreover, as I mentioned above, if a married man has sex outside marriage, neither he nor his sexual partner in the affair commits a crime, as long as that partner isn't married.

This second point is relevant to the current article, because the appellant cannot be accused of adultery because of this precise reason.

The point I am trying to make is that unlike the claims of the ToI article, the Court doesn't seem to say that there is a bias against men.

The full text of the judgement is available online [Criminal Appeal No. 2232 of 2011]. The key passage is quoted below. In the passage, the judgment quotes the Section in question, mentions that there is criticism of the section on grounds of bias against women, mentions that only a man can be punished for the offence of adultery, and then mentions that the appellant, as a woman, is immune to the charge of adultery.
7. So far as the appellant is concerned, she is charged under Sections 341 and 497 of the Penal Code. Section 497 deals with the offence of adultery and provides as follows:
"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 case the wife shall not be punishable as an abettor."
The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.

At best, the argument can be made that the section is deeply flawed providing no relief to the wife of an unfaithful husband, and always considering the unfaithful wife as the victim even though the crime can only be carried out only with her consent (if that were not so, then it would be a case of rape). A more detailed discussion of question can be found here.

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