MUMBAI: A woman who cheats on her husband may land in the dock if the Union home ministry has its way.
Despite vehement protests from the National Commission for Women (NCW) two years ago, the Centre is quietly going about seeking a response from each of the 30-odd state governments to the Mallimath committee’s recommendation that adulterous wives be penalised.
As the law stands in India, only men can be criminally tried and punished for adultery. No criminal charges can be made against a wife for sleeping with a man who is not her husband.
Section 147 of the Indian Penal Code (IPC) which makes adultery a crime for men lays down a sentence of up to five years in jail and also a fine. But an offence is registered only if the “aggrieved” husband whose wife has cheated on him files a criminal complaint against the other man. The state or the police can’t act on their own, nor on a complaint made by any other person. And the existing law clearly says that a wife shall not be punishable even as an `abettor’.
Though adultery is a rising urban phenomenon and often the cause and ground for a divorce, and though in many parts of the world, especially in the European Union and many US states, the trend is to de-criminalise adultery, the Mallimath committee on criminal law reforms recommended about five years back that women should also be tried for adultery.
The existing law is based on the mindset that a wife is a chattel possessed by the man who becomes the aggrieved person. The NCW opposed the amendment, saying that merely punishing a wife, would not save marriages. It also cited the socially disempowered position of women in India.
In fact, the NCW, in a progressive move, recommended that adultery should be treated as a civil wrong (where compensation can be sought). In American states where adultery is still a crime, it is rarely prosecuted.
The Union home ministry is, however, plodding away at generating feedback and data necessary to amend the law. A few months back, the Maharashtra government received a letter from the home ministry seeking its “views” on the recommendation. State law secretary M N Gilani confirmed that the state’s views have been sought in an all-India exercise to include `wife’ in the offence of adultery.
As things stand, IPC section 497 is limited only to adultery committed with a married woman and the male offender alone has been made liable. It is not necessary that the adulteror should know whose wife the woman is so long as he knew that she is married.
The Supreme Court, while upholding section 497 in 1985, observed that the “the wife involved in an illicit relationship with another man, is a victim and not the author of the crime…adultery is an offence against the sanctity of matrimonial home, an act which is committed by a man, as it generally is. Hence those men who defile such sanctity are brought within the net of law…”
There is, however, a difference of views within the legal circles. Mridula Kadam, a divorce lawyer, said,”It takes two to tango and there appears to be a discrimation under the existing law which needs to be ironed out.”
Mumbai-based women’s right activist and lawyer Flavia Agnes said, “The whole debate is unnecessary and dated and adultery sould be deleted as an offence. Making wives and single women criminally liable for adultery would be a retrograde step at cross purposes with the Domestic Violence Act and will only make life miserable for women who may have gotten into the illicit relation as a victim of circumstance or inducement.”
The law: IPC section 497: Whoever has consensual sexual intercourse with a wife of another man, without the consent or connivance of that man, is guilty of adultery
Punishment: maximum five years’ jail or fine or both
The wife can’t be punished for adultery, not even as an abettor.
The man who is guilty of adultery may or may not be married.
The amendment recomended:”Whoever has sexual intercourse with the spouse of any other person guilty of adultery.”