Before we begin, first let’s take a brief look at what exactly the law is.
Section 497 of the Indian Penal Code (IPC) says:
“Adultery— 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 following things you need to know to get the basic outline of the law:
- Men, and not women, are punished for committing adultery.
- The maximum punishment is five years with fine.
Prima facie it appears that it is sexist towards men because women are not prosecuted for adultery, but men are.
Yes, it’s true. And that’s the first and the least sexist thing about it.
Adultery law is the most sexist the most sexist provision contained in the IPC. Section 497 treats women as property. It treats women as possession.
Property and possession, two words which we use when we buy or own stuff.
Section 497 treats women as property.
Section 497 does not punish the woman offender but the male offender. And you know why? Because women are property of the husband.
If the husband’s property is being used by some random person, without the consent or connivance of the husband, then the person using the property shall be punished.
At this point, students of law or persons having a little legal knowledge might say that this is what happens in theft.
In theft, a person dishonestly takes the possession of another without his consent. The same takes place here. A person is having intercourse with someone else’s wife without the husband’s consent. Therefore, the person would be liable because he used the possession of another without asking him.
Adultery is like theft. You can’t have sex with someone’s wife without asking her husband.
But, if he takes the consent of the husband, then there’s no crime of adultery. Consent of the husband here matters the most.
I’m not making this up.
However, if the wife has not consented to sexual intercourse, then the act would amount to rape. (Consent simplified for you)
Sexism Part 3
Another, i.e., the third sexist thing about this section is that it gives license to the husband to have intercourse with any unmarried woman or widow. Adultery can only be held against the person when he has intercourse with a married woman not his wife. But an unmarried woman or a widow does not come wihin the purview of this section.
It gives license to the husband to have intercourse with any unmarried woman or widow.
You ask why? Because unmarried women or widows are not anyone’s property yet. They will become mere possession in the eyes of law when they get married.
To conclude: India needs a better adultery law. A law which treats men and women alike. A law which punishes them alike, or maybe does not punishes any of them at all.
Adultery is also a ground for divorce, obviously, and I believe it is futile and unnecessary to make it punishable since both parties are consenting to the act. Let’s save that discussion for some other time.
Feature image source: Youth Ki Awaaz
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