A Bit Adulterated....

This article is written by Sourya Banerjee.

Gender Justice

What’ common between the CEO of ICICI banks, the MD of Apollo Hospital Enterprises, the Indian Head of Facebook or the current leaders of the three most powerful political parties currently. Quite simple isn’t it? The only similarity is that they are all women. They are there at the top. From healthcare to banking to entertainment to politics. Then can they now be called the weaker sex?? Aren’t laws made to uplift this “weaker” sex going to hamper the other sex (yeah I mean us males)? It’s said that women were always the suppressed sex in India. But the catch word my dear friends is “were” not is! I think it’s high time the law changes to suit the times and eliminate major forms of gender discrimination. Because in the process of  trying to uplift one section, you push down the other side.

    The law which first comes into our eyes in this aspect is the Adultery Laws in India
. Let’s see the relevant section of the IPC first. Section 497 of the Indian Penal Code states that,

                  “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.”

                     Now Ladies and Gentlemen, please pay attention to the last line, “In such case the wife shall not be punishable as an abettor.” Put in simple words a guy seduces a married women and gets caught, he suffers the wrath of the law and society and if a married women seduces a man or a unmarried women seduces a married man and they get caught, then, well then also the poor MAN shall face the wrath of law and the society whereas the women can go skipping in search of another victim. Avery simple question arises here. Where is the justice? Where is the equality? On one sides feminist activist’s are screaming themselves horse demanding equality where on the other side poor men are falling pray to the uber smart and updated women of India. If you want equality then why not equality in everything? Why take the good and leave the rotten?

             Before going into anymore criticism of the section let’s see what the need of this section was. In India the law of adultery which is punishable under section 497 of the IPC was not present, originally the framers of the code did not make adultery an offence punishable under the Code, it was the Second law commission which after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code. When this law was framed, women were really the downtrodden segment of the society. We may have had got independence, but the country was still plagued by different evils like female infanticide and mal-practices against women. Owing to the social conditions prevalent at that time the law commission rightly made this section a bit biased towards the females to protect them from injustice.

      But those conditions are not prevalent now. Women are standing on an equal footing with men. They have all the same rights and duties. Prima facie unequal treatment is meted out by the law to men & women, this is an inherent flaw. It makes the offence punishable for men but not the wife, to punish the man severely and to let the women who was an equal part to go scot free is unreasonable on the face of it, it is discriminatory that for the same act the man becomes the manifestation of evil but the woman still is considered to retain her virtues and is treated as a victim.

     Taking up a matrimonial dispute, the Supreme Court had on previous occasions criticized section 497 of the Indian Penal Code which punishes a man alone for adultery for having consensual sex with a married woman. The criticism of the bench of Justices Aftab Alam and R M Lodha was on two grounds - which the provision reduces a married woman to a property of the husband, and that punishment is meted out to the man though the woman with whom he had consensual sex was an equal partner in the alleged crime. In 1951, one Yusuf Abdul Aziz challenged the constitutional validity of the provision. However, Bombay high court chief justice M C Chagla had upheld the provision saying the Constitution permitted such special legislation for women, it was held in this case that this section does not contravene any of the fundamental rights laid down in the Constitution of India, and therefore it is not bad or void under Articles 13. (The entire judgement can be found here.)

Gender Equality

The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. Thus charges are pressed against the outsider who breaks the said sanctity. The woman, in cases of adultery, is considered the victim of a seducer. It appears that the court believes that the man has an unstoppable seductive charm and the woman is helpless against it. The evil that is punished by the law, in the mind of the court, is that of seduction of a woman by another man. According to the court the woman is considered to be the victim. Thus the court held that the law was non discriminatory and not violating the right to equality, thus the court upheld the constitutional validity of the section 497. 

    So basically what the Court meant to say was that all men are dashing playboys with irresistible charms are could woo any modern married women against her wishes. Whereas, all women were to be considered to be innocent Sati, Savitri’s.In short instead of trying to get both the genders on the equal footing its pulling down the male’s which is also a form of gender discrimination. It is pertinent to note here that The 42nd Law Commission Report has suggested substituting section 497 of the IPC, the substituting provision is “S. 497. Adultery – Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape commits 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”

The Malimath Committee on Criminal Justice Reforms has re-iterated more or less the same argument, that men and women being equally partners in the deplorable act, should be made to stand at the same footing, and equal treatment should be meted out to them both. Unfortunately none of this changes have taken place as of yet.

  Well the best that can be done now is the changes are brought in the Adultery laws in India before someone starts misusing it for their own gains. Cause if we don’t change it now, maybe after 20-30 years we would have to make new laws to uplift the new backward section-the Males.!

This article is written by Sourya Banerjee.

Sourya Banerjee is pursuing BBA-LLB, from IFHE Faculty Of Law, Hyderabad and has currently just completed his 2nd semester.He has very recently started writing blogs.So far he has written for the popular blogs "MOWING THE LAW" and "LEGALLY INDIA".He has taken part in the Jeevika Essay Writing Competition(Results yet to be announced) and few others.He has written on topics ranging from Adultery,Euthanasia and Intellectual property among some. Apart from writing his other interests include mooting, debating, reading, music and others.

Keywords: adultery laws india, gender discrimination india, section 497 IPC, anti-male laws, female biased laws, yusuf abdul aziz, 

Malimath Committee