Discriminatory Law

Section 497 of the Indian Penal Code punishes adultery. Section 497 runs as follows: “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.”

It is very astonishing to note that in this case, only the male partner is made liable for punishment. As the sexual intercourse does not amount to rape, necessary implication follows that woman is willing and consenting party to the act of sexual intercourse. Why then woman is exempted form liability? Moreover, even if she invites a male for this purpose, she will not be held guilty of any offence. This is very ridiculous. A married woman has a greater duty than a stranger has, to abstain from doing such an act so as to preserve the fidelity towards her husband whom she owes faithfulness on account of marital tie. But in this case, her infidelity is excused completely and only the stranger (man) is held liable, even though both parties are equally responsible for commission of this act. This is clear discrimination. And this cannot be called protective discrimination either. Excluding her from criminal liability is not based on any convincing logic or reason. Indian Penal Code’s provision of ‘adultery’ exhibits double standards. Ranbir Penal Code, 1932 which is in force in Jammu and Kashmir State penalises such wife also. In Pakistan, Saudi Arabia, Iran, Egypt etc. both participants i.e. man and woman are punished for adultery. It should here be remembered that in ancient Hindu Law Manu had provided for punishment to adulteress.

The Section 497 needs to be amended to provide punishment to the wife also. If the last sentence in this section, ‘In such case the wife shall not be punishable as and abettor’ is deleted this effect would be achieved. The discrimination inherent in this section can be avoided by another way also. The whole section 497 may be repealed and the act of adultery decriminalised. This will be bringing our law in line with the law in England. In England adultery is no crime. Repealing this section will not leave the husband of such adulteress wife without any remedy. He still may use this act of adultery as a ground for divorce and get separated from such disloyal wife.