January 22, 2025

For long, India’s archaic law on adultery has come under fire from different quarters for having an inherent gender-bias. Section 497 of the Indian Penal Code (IPC) prescribes adultery as “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.”

This definition, or recognition, of adultery is both very narrow and has gender-bias. More importantly, it recognizes a wife to be no more than the property of the husband, as she can have an extra-marital affair only with her husband’s consent. The definition is steeped in the so-called Victorian values and is definitely not in tune with the changed perceptions of society. It is also discriminatory as it provides for punishing only the man and the woman is spared. Further, it has nothing to say about the wife having extra-marital relations with an unmarried man or the husband doing the same with an unmarried woman. In fact, the wife has no way to complain if her husband is having an affair with even a married woman. Hence, the Supreme Court has finally agreed to have a hard look at the constitutional validity of the section.

Although the apex court had on three different occasions, between 1951 and 1988, upheld the constitutional validity of the concerned section, this time the bench felt that the time had come to move ahead and examine things afresh. Admitting a petition challenging the constitutional validity of Sec 198(1) and (2) of the Code of Criminal Procedure (CrPC) which provide that only a man can be an aggrieved party against offences in marriage, like adultery, and only he can go to court, the court was of the opinion that “the provision (Section 497) really creates a dent in the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. This tantamounts to subordination of a woman where the Constitution confers (women) equal status.”

Adultery has a meaning that encompasses all sexual relationships entered by both the husband and the wife with others. It does not matter whether such relationships have the consent of the spouse or whether the opposite party is married or not. If adultery is to be punishable (which is also a debatable point), then any sexual relation any married person has with an outsider should be punished and both the husband and the wife should be able to go to court. If adultery is to be kept on the statute books, then the narrow definition must be suitably widened and made gender-neutral.