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Always the wife’s burden

The Bombay high court missed an opportunity to make history by striking down the archaic provision of adultery which is punishable under Section 497 of the IPC. The writ petition was filed by a person facing trial in a criminal court on a complaint filed by the husband for having sexual relations with his wife. It seemed that the husband had engaged the services of a detective agency to track down the wife’s movements.

The argument of the petitioner was that the section violates his fundamental right to have relations with a person of his choice, particularly since same-sex relationships have been decriminalised and since the Domestic Violence Act 2005 awards recognition to “living-in” relationships. Hence the archaic law has ceased to have any relevance in the contemporary context.

This argument did not cut ice with the bench comprising of Justices B.H. Mariapalle and U.D. Salvi who strongly felt that Section 497 is essential to preserve the sanctity of the institution of marriage. The court was of the view that in order to have sex with a person of one’s choice, it is imperative for the married spouse to first excuse herself from the contract of marriage.


But while upholding this premise, the bench failed to take note of the sexist premise on which the provision is based — that it views women as essentially the property of their husbands, a notion prevalent in the bygone era of Victorian England. Consequent-ly, having sexual relations with her violates the husband’s property rights which warrants a criminal punishment. Within this formulation, a man indulging in extra-marital sex with an unmarried woman does not warrant a similar punishment as it does not hurt the sentiments of a male-dominated society. The wife of such a man has no remedy in criminal law, as it appears that the sanctity of marriage is not violated by such lapses on the part of men, within a society premised on a patriarchal value system!

Ironically, while this petition was being heard in the Bombay high court, the adjacent Sessions Court appears to have been gripped with a similar concern. Since the famous Nanavati trial of 1959, where the husband was given a lesser punishment for killing the wife’s lover, on the ground that it was a crime of passion caused by “grave and sudden provocation”, this ground has been invoked to protect the husband’s prerogative which is a mere extension of the prerogative granted to him under Section 497. The Maria Susairaj-Emile Jerome murder trial also resonated with a similar concern, where this privilege was extended to a murderer who was not yet the husband but the woman was betrothed to him.

There have been challenges to Section 497 on the ground that it discriminates against men as it does not punish women engaged in extra-marital affairs. But within the patriarchal scheme, women are viewed as mere chattels and passive objects of men’s sexual pleasure and not active partners in crime. The Constitutional Bench of the Supreme Court in 1954 in Yousuf Abdul Aziz vs State of Bombay (AIR 1954 SC 321) upheld this notion using the constitutional mandate of Article 15(3) which provides for special protection to women. In 1985, in Sowmitri Vishnu vs Union of India (AIR 1985 SC 1618), it was contended that Section 497 is a flagrant instance of “gender discrimination” and “male chauvinism”, as it recognises only the husband of the adulteress as an aggrieved party but does not confer similar rights upon the wife of the adulterer. But the Supreme Court, once again, upheld its validity.

There have been recommendations by the Law Commission, the National Commission for Women and the Malimath Committee to make this section gender neutral and bring women within its purview. The high court, during the hearing of the present petition, also seemed to echo a similar sentiment. But this premise seems to be equally problematic as it will continue to criminalise sexual acts between consenting adults, which is essentially a matrimonial fault, like several other matrimonial faults in our statute books such as desertion, cruelty, unsoundness of mind, etc. The only solution is to give women’s adultery the same status as other matrimonial faults, including men’s adultery, and not to privilege it by awarding it the status of a “crime” on the pretext of “preserving the sanctity of marriage”.


The writer is a lawyer and director of Majlis in Mumbai; express@expressindia.com


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