By a Staff Reporter
As the NCW sends a list of proposed amendments to the centre...
“Whoever has sexual intercourse with a person, whom he knows to be the wife of another man, without the consent or connivance of that man, such sexual intercourse is not amounting to the offence of rape. The guilty of the offence of adultery, shall be punished with imprisonment for a term that may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” - Indian Penal Code Section 497
What may immediately strike one as being rather peculiar is that the act of adultery is even considered a crime. A move is being made to bring women into the ambit of adultery and hold them as abettors and offenders of the ‘crime’ – a move that is being strongly opposed by the National Commission of Women on the grounds that most women even today are still victims. The commission has sent a list of proposed amendments to the centre and is playing a wait and watch game, trying to flip over a section that prevents a woman from prosecuting her errant husband.
We asked several lawyers about what they think should be done with the law.
Matrimonial lawyer, Mrunalini Deshmukh, has been dealing with divorces and custody battles for the past ten years. According to her, adultery should not come under criminal offences at all.
“Our laws have come from Victorian England,” she explained. “Victorian laws were influenced or derived from the church. Ecclesiastical law sees marriages as sacrosanct. Divorces were not allowed. Like any other law, this law dealing with adultery was also made as a deterrent: to make men think twice before indulging themselves. In today’s social context, it is outdated as a criminal offence. It should only be a civil offence; it is a matter between two people – what have the police or the government has to do with it? Also – the law clearly states that the woman will not be held responsible. I strongly object to that! In this age of gender equality and gender justice, why should we have such a lopsided law?
Who said women don’t want sex?”
Deshmukh has had several couples coming to her over adultery and, over the years, she has noted that the cases have increased.
“Perhaps it would not be correct for me to say that the number has risen, but that more couples are coming out with it,” she added. “Around 90% of such cases head for divorce rather than a reconciliation.”
Noted lawyer Sanjeev Kanchan feels that the law has lived its course.
“It was passed in 1860,” he pointed out. “The lady is always perceived as the victim and that perception is not entirely wrong. Personally, I feel that adultery is a private matter and that the government should stay out of it. Anyway, the law does not take action even against men who are held responsible already, as a complaint is required first. Just as a man guilty of bigamy is not arrested until one of the wives complain.
“Today the modern individual might say that there is no difference between the man and the woman, but one must see the country as a whole and not just the metros and note that there has been no drastic change in the equation. Yes, some women might commit adultery of their own will but that is not the rule, right? It is the exception. The law should never forget that. This section should remain as it is, untouched.”
Shuboda Khot, a junior lawyer, confirmed that the law against adultery is not applicable to women. “More often than not, men lure women with false promises,” she said. “So women are victims and should be perceived as such.”
Varsha Ropde, the secretary of the Bar Council of Maharashtra and Goa, said that while the NCW is saying that women “should not be held responsible as they are the victims”, her (strictly) personal opinion is that “one may hold women equally responsible. Today they are educated and in charge of their lives; many do enter into adulterous relationships knowing fully well, what they are doing. While a large percentage is deceived into such relationships, the exceptions should also be taken into account.”
Prominent lawyer, Mahesh Jethmalani, said that the law should be amended not to include women in the offence but to decriminalise the act itself!
“I feel that it is a private matter,” he said, refraining from commenting on the women’s angle. “It should not be permissible to jail either men or women for this act as it concerns their personal lives. It should be changed to a civil offence and used only as grounds for divorce.”
Well-known lawyer who specialises only in women’s cases, Flavia Agnes agrees that the law is rather archaic.
“Women and men both have affairs and they should be treated as equals where adultery is concerned,” she stated. “But having said that, I must clarify and say that they should be treated as equals in the sense that neither should be penalised for having committed adultery. It is their personal lives, after all. That section should be immediately deleted from the penal code – forget about amendments!”
Defence counsel, Farhana Shah, feels that the section should not be deleted and women should be made accountable for their extra-marital dalliances.
“This is an issue where the entire family is affected,” she said. “Some responsibility has to be accepted by the lady for she is a party to it, is she not? And why should we de-criminalise adultery? Abroad it is not a crime but there it is a very natural daily occurrence. Indian culture does not permit us to be like foreigners. It is alien to our culture so is it not wrong for our society? It should not be deleted for in many cases the woman is coerced into an affair, so we have to consider that as well, but deleting the section completely, in my opinion, would be very wrong.”
While various points of view help one analyse a situation better, the question remains whether the law will be amended at all and, if so, will it be for better or for worse?
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