Adultery had been criminalised under the Indian Penal Code. The section read as “All sexual intercourse by a man, not amounting to rape, with a person whom he knows or has reason to believe is the wife of another man without the ‘consent or connivance’ of that man is adultery.” This is what is called a man to man offence in common parlance. Only a man can be the perpetrator and the victim.
Even a bare reading of the section will make any person conclude how patriarchy and male chauvinism had been romanticised and perpetrated through the section. This report seeks to point out the feminist arguments against the erstwhile section.
Feminism is termed as the antithesis of gender discrimination. Women and men are supposed to be treated equally. Women should be allowed to break from institutionalised settings and be allowed to have their own choices and sexual preferences. As long as it is consensual, the state has no business in what happens inside a person’s bedroom. It can be argued that infidelity and adultery are not women’s battles, but the following arguments will make it clear about why it is.
First, the section encourages the treatment of women as property. It section considers women as “owned” by the husband and any ‘outsider’ who trespasses on the husband’s possession is punished under the same. The assumption being that once a woman enters the matrimonial alliance, she contracts away her sexual independence.
Secondly, it is discriminatory towards men. Feminism means equality for both the sexes. The section punishes any man who engages in intercourse with a married woman without the consent or connivance of her husband. However, the reverse is not criminalised. A woman engaging in sexual intercourse with a married man without the consent or connivance of his wife is not committing adultery. This begs the question, why? Men and women are both equal before the law. Therefore, two equal people should be treated equally in the same situation.
Thirdly, it promotes reverse discrimination - The section treats women as ‘victims’ who have been seduced. It assumes the lack of sexual autonomy of the woman and treats her as someone not capable of independently initiating sexual relations.
Lastly, there is a lack of marital security for women. punishing husbands who engage in extra marital affairs, is indirectly admitting that the infidelity of men is not an issue of consequence. It is something to be accepted as natural or even normal. This creates a situation in which women are left to no criminal recourse in the case where their husbands are having illicit relations outside of the marriage bond.
Before the landmark judgment of JOSEPH V UOI which challenged the constitutional validity of the section, its validity was upheld in YUSUF ABDUL AZIZ v. STATE OF BOMBAY. Justice Vivian Bose delivered the judgement The Court however decided that since Article 15(3) allowed special provisions to be made for the benefit of women, the clause in S.497 is valid as it only “prohibits punishment” and is not a “license to commit the offence”. ARTICLE 14 – Article 14 was declared as a general right which must be read along with Article 15.
A feminist reading of the judgement leaves one unsatisfied with the result. By trying to ‘benefit’ women by making them exempt, the law actually treats women as inferior to men who cannot be held liable for their actions as they do not possess the independence to engage in such activities.
This brings me to the latest judgment on the issue which highlighted several important points and rendered feminist interpretation to hold the section to be unconstitutional.
The key points raised in the judgment are-
It considers husband to be the master of the wife- The sexual act under Section 497 is exempted from punishment if it is performed “with the consent or connivance” of the husband. The wife has nothing to say in the process and women are deemed to be the property of man, theft against whom by the third party invokes the section. It implies the controls the sexuality of the wife.
The woman is not allowed any sexual autonomy-
Equality has to govern the justice system. This section 497 is ouright arbitrary in the way that it treats women. Autonomy is an undispensable asset for dignified human existence. Section 497 denuded the woman from making choices.
Women had the burden of protecting the sanctity of marriage –
The wife of the said man has no right under the statute to bring a case against her husband or the woman he has an extra marital affair with. The Section highlights patriarchal roots as to how the husband is allowed to commit an adulterous act, but the wife is burdened to preserve the sanctity of the marriage. The Supreme Court pointed out that there is no intelligible differentia under Article 14 in saying that the sanctity of marriage is not hurt if a married man has sexual intercourse with an unmarried woman, and this is manifest arbitrariness.
Wife is not considered as an abettor-
There is no rationality in treating one party in the performance of the sexual act as the victim and the other as the accused for the same act. The feminist theory not only advocates for equal rights for women, but also equal responsibility of their actions.
It was a much needed judgment in the awakening of feminist rights in the country.
By- Prerona Banerjee,