Adultery has existed from time immemorial, although there are enough stories to prove that the shame of stepping out has faded. Be it Raj Kapoor, Rekha, Kamal Haasan or Sridevi, they all had “alleged” extramarital affairs but bounced back unscathed. The pact of ‘convenient infidelity’ suits not just the husbands, but the ‘other’ woman too. With the Supreme Court deciding to re-examine a 150-year-old provision on adultery in the Indian Penal Code, which treats women only as victims and men as offenders, a new debate has opened up as to why women can’t be punished for adultery. “Perhaps women with economic independence and a good educational background are looking for a physical release more than a soulmate, if their marriages are a few years old and sex has become more like a chore,” says Dr Sharmila Majumdar, Chief Sexologist & Psycho-analyst, Avis Hospital.
“Like many men, these days, women do not want to break their families, hence the guilt factor is almost nil. More women are also having extramarital affairs, especially those who travel out of the city on work. With the Internet and mobile technology, affairs are also easier to maintain now than earlier,” adds Dr Sharmila.
By definition, adultery covers any extramarital incidence of sexual intercourse, although the Indian law in its current form makes it illegal only if a man has sexual intercourse with a woman who is married, and he does not have the consent of the husband of the woman for the sexual activity.
“Many times in adulterous relationships, men lie to the lady they are involved with about their marital status. They present themselves as single on online wedding portals and create multiple social media identities to do this. In such cases, the lady cannot be held accountable. But a blanket rule cannot be imposed on issues like this. Adultery is an ethical and a moral challenge, trying to solve it without looking into all the facets will create divide and distrust between women and men. If, however, a woman is aware of the marital status of the man or she herself is married, then this ruling should apply,” argues Ekta Viiveck Verma, Founder, Invisible Scars (against non-physical domestic abuse).
According to Section 497 of the IPC: Whoever has sexual intercourse with a person who is the wife of another man, without the consent or connivance of that man, such sexual intercourse 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.
Kabhi Alvida Naa Kehna dealt with the theme of adultery
Keerthi Anantha, Advocate, Tatva Legal, explains, “There was an earlier case where Section 497 was challenged, alleging that it violated Article 14 of the Constitution, since women were not punishable for adultery. The Supreme Court upheld its constitutionality by stating that Article 14 allowed beneficial legislation and since it was beneficial to women, it was not violating Article 14. Presently, Section 497 is being viewed differently. The section holds that women are being treated as chattels and that adultery committed by a man with a married woman, with the consent of her husband, is not a crime. This has been interpreted as holding a woman in bad light.”The existing law on adultery further discriminates against women because a married man can file a case of adultery but a woman cannot file a case against the husband or against the woman with whom her husband is having an affair.
“My mom chose judicial separation to divorce for the same reason. Social stigma associated with separation is always a burden a woman has to carry along with the lack of social support from family or financial independence. My mother’s case dragged on for 17 years in the family court and I turned 29 by the time she was given Rs 1,500 a month as maintenance. Even worse, patriarchal conditioning affects the next generation too. If we had an agency to express our will to separate and seek compensation with speedy settlement of maintenance in courts, I am sure women would take a stand,” says Varsha Bhargavi, founder, Concept Voyages.
Change is in order
Prima facie, Section 497 of the Indian Penal Code grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both individuals, one is liable for criminal offence but the other is absolved. However, society must realise that a woman is equal to a man in every way and hence this provision appears to be quite archaic. When society progresses and rights are conferred, a new generation of thoughts spring forth, and hence, we are inclined to say that change is in order.
