From bed to worse

This article was last updated on June 18, 2022

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The Indian government, confronted with serious national issues like poverty, unemployment and terrorism, is now mulling over whether a wife should be punished for adultery just as her husband can be.

The government wants to extend the purview of Section 497 of the Indian Penal Code (IPC), that governs adultery, to include an adulterous wife. As the law, drafted in 1860, stands now, only a man who is caught out in an adulterous relationship with a married woman can be criminally tried and punished.

The idea of making an adulterous wife pay for her infidelity was mooted in 2003 in The Recommendations of the Committee On Reforms of Criminal Justice System: “As a man can be punished under Section 497 of the IPC for adultery, for having sexual intercourse with a wife of another man, it stands to reason that wife should likewise be punished if she has intercourse with another married man.”

The matter was dropped following opposition from women’s groups at the time, but the union government, it is reported, is now seeking state governments’ views before it takes a final decision.

The move has thrown up a piquant situation. On the face of it, as noted criminal lawyer Satish Maneshinde points out, the law should be the same for all. “An adulterous relationship cannot take place without the consent of both the man and the woman. To make out that only the man is guilty of the offence is discriminatory,” he says. He adds that the law was enacted at a time when women were the disadvantaged sex but matters, at least in urban areas, have changed since then and women are equally responsible now for their actions.”

A view that artist Rekha Rodwittiya disagrees with: “India is predominantly a patriarchal society and urban liberal India is only a very small area in this cultural territory.  The social trauma of an adulterous husband is mental anguish for many women who are trapped in failed marriages,” says the artist.

But Mumbai advocate Mini Mathew takes the debate further (or one step back) when she says, “The idea that adultery is a crime is archaic. It is rooted in the thinking that a wife is ‘property’ that a husband owns and that is objectionable.” As she points out, it is the husband of the adulterous woman who brings the charge against the other man. Where, asks Mathew, is there relief for the woman in this act?

In the same vein, Sandhya Gokhale, the founder member of Forum Against Oppression of Women, is all for the decriminalisation of adultery. “Which century are we living in? Having more than one relationship is not a crime. It is a breach of contract, in this case the contract of marriage. Even the Muslim Personal Law does not permit marrying another woman without the consent of the existing wife.”

While adultery is a crime under Section 497 of the IPC, adultery committed by husband or wife can be grounds for filing for divorce in matrimonial jurisprudence (ie, in the Family Court), points out Mathew. This, she says, is fair to both men and women since either can decide to walk out of a marriage if there is a breach of faith.

However, Mathew opposes extending culpability to an adulterous wife under Section 497 of the IPC, because it may result in it being misused against women. “How many women are empowered enough to fight a criminal case filed against them?” she asks and says, it is better to scrap Section 497.

Maneshinde, too, finds the whole idea of adultery as a criminal offence absurd. “The time has come to revisit the laws on adultery. Like water, people in a matrimonial relationship also find their level. The government should look at more pressing issues like corruption and terrorism rather than who is sleeping with whom,” he says.

Mahabanoo Mody-Kotwal, theatre person who has staged over 100 shows of Eve Enseller’s cult play, Vagina Monologues, in India, speaks straight: ‘To view adultery as a criminal offence is laughable. Ninety-five per cent of the married persons in urban India indulge in it and the rest don’t only because they can’t. Adultery is not gender- or class-specific.”

Kotwal adds that the state should have no say in who one chooses to sleep with. “The more constructive thing that the state can do is have free counselling centres for those indulging in adultery. Because when adultery is committed (in some cases, time and again) there are deep-rooted causes behind it. There is often a tremendous lack of self-esteem and self-respect and a great urge to prove his/her power over the partner.”

Instead of wasting time and money on non-issues like adultery, the government should concentrate on more serious problems empowerment and upliftment of women, child welfare and terrorism, she adds.

But is anybody listening?

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