ANALYSIS | Of Indian Adultery Law & Supreme Court Ruling by Fabian Lyngdoh

ANALYSIS | Of Indian Adultery Law & Supreme Court Ruling by Fabian Lyngdoh

TNT | ANALYSIS | Oct 06, 2018: 

By Fabian Lyngdoh

The Ruling of the Supreme Court on the 27 th September, 2018 with regard to the Indian Adultery law is an issue of interesting debate in all sections of the Indian society.

To begin with let us first analyse the Section 497 of the IPC which says, "Whosoever, 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 rape, is guilty of the offence of adultery." The Section further says that the man is liable to be imprisoned for five years, while the woman shall not be punishable as an abettor.

Let's begin with the compound phrase, "knows or has reason to believe to be the wife of another man."

The concept of, 'wife of another man' is a legal concept. There is no physical evidence on any woman to show that she is a wife of another man. Hence, the context here means that if the man is fully aware out of his own knowledge, or he is being informed by the woman that she is a legal wife of another man, then his sexual intercourse with her amounts to adultery even if the woman is involved with full consent in the act.

But if the man does not know at all, or the woman who consents to sexual intercourse with him denied being the legal wife of another man, then he is not liable to punishment for offence of adultery.

In the case of rape, the question of knowing or having reason to believe that the woman is, or is not the wife of another man does not arise: Rape is a rape, not adultery. Sexual intercourse without the consent of the woman amounts to rape. Hence, if a man commits sexual intercourse with a woman with the consent or connivance of her husband, but without her consent or against her will, it would be a case of rape, not adultery.

Section 497 of IPC specifically speaks of adulterous sexual intercourse that does not amount to the offence of rape. Hence, the wording, "Without the consent or connivance of the husband of the woman," presupposes sexual intercourse with the consent of the woman, but without the consent of her husband.

Therefore, the context here means that if a man commits sexual intercourse with the legal wife of another man with her own consent, but without the consent of her husband, it would be a case of adultery.

But if the act is committed with the consent of the woman's husband as well, then it would not be a case of adultery.

It seems that the Supreme Court contents that Section 497 of IPC, "treats a husband as the master," just because it requires the husband's consent to render the wife's adulterous relationship with another man legally acceptable, and because this Section does not punish a married man for having consensual intercourse with an unmarried woman.

Based on this argument, should a married man be punished for having sexual intercourse with an unmarried woman? Or, should an unmarried woman be punished for having sexual intercourse with the husband of another woman?

The Supreme Court also felt that Section 198 of IPC gives only to the husband the right to file a case against the man involved in the act of adultery. Hence, this section merely reinforces the archaic thinking and sexual stereotyping that a woman belongs to a man, and a woman cannot have her own thoughts and opinions.

So these sections of IPC violate Article 14 and Article 15 of the Constitution of India. Article 14 of the  Constitution says that "The State shall not deny to any person equality before the law or the equal protection of the law within the territory of India." This implies that men and women are equal. Hence, going by this spirit, then if the man involved in adultery is punished, then the woman should also be punished. Or, if the woman involved in adultery is not punished, then the man should also not to be punished. If the husband is given the right to file a case against the man who commits adultery with his wife, then the woman should also be given the right to file a case against a woman who commits adultery with her husband.

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Article 15 of the Constitution states that, "The State shall not discriminate against any citizen on grounds merely of religion, race, caste, sex, place of birth, or any of them." Going by spirit, then Section 497 of IPC in fact discriminates against men. The man involved in adultery is punished with five years of imprisonment, while the woman who involves in the act with full consent is set free because she cannot be considered as an abettor. Hence, by Article 15, if the man is punished, then the woman should also be punished. If the woman is set free, then the man should also be set free. If in a case where a man commits consensual sexual intercourse with a woman, with the consent of her husband is not considered adultery, then also a case where a woman commits consensual sexual intercourse with a man, with the
consent of his wife would not amount to adultery.

If a married man who has consensual sexual intercourse with an unmarried woman is not committing adultery, then a married woman who has sexual intercourse with an unmarried man is also not committing adultery.

The Supreme Court felt that laws should be gender neutral. Hence, it pointed out that Section 497 of IPC merely makes a woman a victim and thus "creates a dent on the individual independent identity of the woman." The question is; how is the woman made a victim when the said Section of IPC allows her to commit adultery without any punishment, while her adulterous male partner is liable to be imprisoned for five years? The phrase, "sexual intercourse, not amounting to the offence of rape" in Section 497 of IPC, presupposes "sexual intercourse with the consent of the woman." How can we say then that the consent or willingness on the part of the woman is not of any consequence?

A woman can enjoy sexual intercourse with any man in spite of having a legally married husband, and shall not be punished as an abettor. Does that create a dent on the individual independent identity of the woman? A married woman or an unmarried woman is not liable for punishment in case of adultery; only the man is to be punished. How can that be a case of discrimination against women? Is it because women are discriminated against by not being given equal share of punishment?

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So the move to do away with Section 497 of IPC on the ground of feminist's justice, particularly against the wording, "without the consent or connivance of the woman's husband," would simply means that a woman should have the right to commit consensual sexual intercourse with any man without the consent of her husband, and the man with whom she has adulterous relationship should not be punished because it is not a case of rape.

But the code of gender justice would extend this right further that, "a man should also have the right to commit consensual sexual intercourse with any woman without the consent of his wife."

The intent of the Supreme Court Ruling is to do away altogether with concept of adultery as a legal offence committed against the State, though it may remain as a civil offence against the affected person, and it would only stand as a reasonable ground for divorce. It would be interesting if other thinkers join in the discussion.

On my part I feel that overall, the legal freedom to commit adultery in the name of gender justice or women's empowerment, and the consequence of divorce that would follow after it, would have disastrous affect more on women than on men. It would simply render the moral and legal values of marriage
meaningless.

(Fabian Lyngdoh is a renowned columnist and former Chairman of the Khasi Hills Autonomous District Council)

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