Is the law punishing adultery in India a gender biased law ?

Since its inception, the law related to adultery in India has been subject to grave controversy regarding several of its fundamental issues. The legality of these laws in India has been argued based on their tendency to show a very clear sense of gender bias.
What is Adultery by the definition of Indian law? What qualifies as an adulterous relationship between a man and a woman? How is it a criminal offence? How is it a gender biased law? This blog deals with these FAQs surrounding the very conception of adultery by the law makers in India.
What is Adultery by the definition of Indian law?
Section 497 of the Indian Penal Code states that:
“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.”
In laymen’s language, Adultery is the indulgence in voluntary sexual intercourse of a married person with someone other than his/her spouse. It is an intentional violation of the bond of marriage.
What qualifies as an adulterous relationship between a man and woman?

• The adulterer must have had sexual intercourse with the wife of another man.

Indulgence in sexual intercourse must be proved on the part of the accused. But in case, the act does not involve sexual intercourse and stops at the stage of preparation, it will not be called as Adultery under this section. Therefore, proof of sexual intercourse having taken place is vital for conviction on adultery.
NOTE: Sexual intercourse with a prostitute, unmarried woman or a widow would not fall within this section.

• The adulterer must have knowledge that the woman is the wife of another man.

The accused in the case should have the knowledge of marital status of the woman in such adulterous relationship. However if it may be proved that the accused had sufficient reason to believe the woman to be the wife of another man, it may be deemed to be known as mentioned above. It is a question of fact and not law and hence can be deduced differently in different cases based on their facts and circumstances.
NOTE: It is very important to note that identity of the husband need not be necessarily known by the accused, but his existence as the husband of the woman in sexual relationship with, would be sufficient to prove knowledge.

The adulterer should have sexual intercourse without the consent of the husband.

It may be said that a husband on consenting to a relationship which may otherwise be termed an adulterous relationship makes free from guilt of having a relationship of adulterous nature.Thus on acquiring knowledge, as understood above, if the husband of the woman involved in an adulterous relationship fails to act upon such knowledge he is said to comply with and accepts the fact.

The adulterer must have had such sexual intercourse that did not amount to rape.

The married woman must be above the age of 16 and acting as a consenting party to the sexual intercourse. It is very necessary for the married woman to willfully have sexual intercourse with the man. If she does not consent to the act, it would amount to rape and not adultery. In such a situation the husband’s consent is immaterial.
NOTE: If the woman is below 16 years of age, her consent to such sexual intercourse may also be immaterial and would constitute rape.

Why is Adultery law considered to be gender biased?

After examining the Section 497 of Indian Penal Code, which gives the definition of Adultery, Supreme Court of India said, “The provision (Section 497) 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 charges of adultery and she cannot be proceeded against for that offence,” the Apex Court said. But the other side of the coin says, The provision of the law indirectly discriminates women. Simple reading of the Section clearly suggests that a wife is the property of the husband, and he himself has the right to protect her. It is very interesting to note that if the husband consents to sexual intercourse between his wife and a third person, it would not be considered adultery. Moreover, this provision only punishes a man, therefore, assuming that a woman is incapable of thinking and taking responsibility for her own actions. Another point of this provision that may be worth pointing out is that in cases where a married man indulges in sexual intercourse with an unmarried woman, the man cannot be charged of adultery although his wife and the unmarried woman are helpless victims of his act. But, the wife should feel free to file a petition for divorce against him on this ground which is a different marital suit altogether !
 
Another law related to Adultery:

• Section 498 of IPC: Enticing or taking away or detaining with criminal intent a married woman

“Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.
We can draw some conclusions from the above-mentioned laws: The following points can be noted about these laws that work together –
A wife cannot prosecute her husband or her husband’s lover for adultery (She can file a suit for divorce, though). But a husband can prosecute his wife’s lover.
If the husband has an affair with an unmarried (or divorced, or widowed) woman, no one can initiate any action against anyone.
If the husband has an affair with a married woman, only the husband of the other woman can initiate action.
Only a man can be a seducer and women are powerless victims.
Adultery as a criminal offence:
The state recognizes Adultery as a crime as two fully grown adults, who are capable of making rational decisions, affecting their personal lives, participating in consensual sex. In the light of the above mentioned sections of this blog the question as to whether such an act poses a threat to society as a whole and warrants a punishment of imprisonment for a period of 5 years, arises.
 
This article has been contributed by Anurag Mishra, First Year, Symbiosis Law School, Hyderabad.