Adultery is a common word in today’s era. Almost every individual is aware of a general description of the term. Adultery in common parlance means extramarital sex. Section 497 of the Indian Penal Code defines 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.” Adultery is a criminal offence in India, whereas most of the countries have decriminalized it.
Recently, Joseph Shine, through advocate Suvidutt Sundaram, challenged the constitutionality of Section 497 of IPC read with Section 198(2) of CrPC by filing a PIL in front of a three- judge bench. The question raised by him in the PIL was regarding the exception of women from the punishment for a wrongful act done by both the man and the women with regard to adultery.
Many people feel that the entire adultery law in India should be decriminalized. Some of the reasons to support their arguments are as follows:
- First, sexual intercourse between a man and woman who are mature in age is a private matter of the individuals. Also, in an adulterous relation, it is an equal decision of both the man and the woman; hence both are at fault. Therefore, punishing only the adulterer and excluding the adulteress with the statement that man is the seducer seems to be quite vague and not convincing in the modern era.
- Second, the definition of Section 497 of IPC itself is unconstitutional because women are treated to be men’s property rather than an equal individual to men. The part of the definition where it states, “without the consent of man” proves the point that having sexual intercourse outside marriage with the consent of the husband by the wife is allowed.
- Third, it is an offence only when a married woman has sexual intercourse with another man other than her husband, but it has not been mentioned to be an offence in cases where a married man has intercourse with a woman outside the marital relationship, which again shows gender bias.
Therefore, the law entirely is unconstitutional and shows a lot of gender discrimination. Also, having sexual relationship is not something which the government or any other person completely unrelated to it has a say in. Adultery being a ground for divorce is justified in the sense that when the wife or husband has sexual intercourse with another man or woman, their spouse do have a say in whether she or he wants to continue the relation or not as long as it is a ground for divorce for both men and women. But punishing just the man for having sexual intercourse with married women is not justified. There may be cases were the initiation for the adulterous relationship came from the women or the adulterer was unaware of the marriage. When the decision is from two matured individuals who have full knowledge about the consequence of their act, there is no crime.
The world is advancing in all possible ways. Men and women both want equal status and rights. A woman is no longer meant to be inside the four walls. There is no rational reasoning that can be given to the definition given under Section 497 of IPC. Hence, adultery should not be criminalized and should just be a ground for divorce. Thus, the entire section needs a relook.