"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... such sexual intercourse not amounting to rape, is guilty of the offence of adultery, and shall be punished with imprisonment for a term which may extend to five years, or with fine, or both..."
—Section 497, the Indian Penal Code
The Indian law on adultery, formulated circa 1860, sounds antediluvian in the 21st century. It's mostly about men settling scores with those who dared sleep with their wives. Women can't litigate against their errant husbands or their husbands' lovers, under the law. And, in turn, women can't be sued for being adulterous.
"Section 497 is based on Old Testament values," says Mumbai-based feminist lawyer Flavia Agnes. "It doesn't protect the rights of women, only protects the proprietorial rights of men over their wives' bodies." Considering men and women can both cite their spouses' infidelity as reason for seeking divorce, there is no legal rationale, feel many like Agnes, for a criminal law on adultery that "spares" wives for being adulterous and then "disallows" them from suing their husbands/husbands' paramour for adultery.
Chennai-based advocate Geeta Ramaseshan had, in fact, challenged these gender inequalities in the procedure to file complaints of adultery. Counsel for the Revathy vs Union of India case in 1988, Ramaseshan had argued that Revathy be given the right to lodge a complaint of adultery against her husband. The apex court dismissed the case: "Spouses ought not to be filing complaints against each other...." This convinced Ramaseshan that "the law on adultery should be scrapped". "It is outdated, mostly misused to harass women, not based on substantive equality, and treats women like male possessions," says she.
But would the law be fairer were it to allow wives to prosecute the "other women" their husbands are having affairs with, just as husbands are allowed to sue the "other men"? No, insist feminists. The "other women" could be pregnant, could have been forced into sexual relationships by their married bosses. Agnes insists, "The realities of men and women are different, so such simplistic solutions won't work. The law on adultery is problematic, out of sync with the times, it must be done away with."
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