HYDERABAD: The Supreme Court may have questioned the validity of the adultery law under Section 497 of IPC when petitioner Joseph Shine has pointed out that an adulterous woman has an undue advantage, for she is not prosecuted under the law. But lawyers in Hyderabad, who deal with such cases, are of the opinion that the law is more abused than used and it is women who are most often the shamed victims in the bargain.
Take for instance a recent case in the Secunderabad family court where a couple applied for mutual consent divorce after the man suspected that his wife was having an illicit relationship. During the course of hearing, it was observed that the woman moved out with a new partner. The husband, citing adultery, moved the court and obtained a new MOU giving no visitation rights for his wife who was the biological mother of their two children aged 6 and 10 years. The woman refrained from challenging the decision. Lawyers observe that such cases highlight how the law is used to coerce women in forfeiting their rights with the threat that a case would be filed against their new partner. Senior advocate Vani Suri maintains, “Men are increasingly leveraging this law to obtain divorce by scandalising the wives and rob them of their social standing.”
A case in point was the sensational case that rocked the city in March this year when a senior police officer’s male colleague was charged with adultery under Section 497 of IPC by the former’s husband who also publicly shamed and ridiculed her. Not only was the law used to shame and defame her but her relationship with a colleague was also painted in an immoral and criminal picture. She said that legal fraternity is prone to view an adulterous wife in more discriminatory manner than an adulterous husband.
“Which is why in a case after case we see that if a wife is accused of adultery, the judges would deem her unfit as a parent and would tag her as a bad influence on the children. She would, in most cases, lose visitation rights and would not challenge her husband’s demands in fear of a criminal case. But courts tend to be more lenient with men who engage in extra-marital affairs,” she added. But how common is it for men to go ahead and file adultery cases against wife’s partner? Do accusations translate into solid cases? Additional commissioner of police (crimes & SIT) Shikha Goel, who is the head of She Teams and Bharosa centre in Hyderabad, maintains that adultery cases in general are rare and very few but surely become a reason for domestic violence against women.
“The Bharosa centre receives complaints of domestic violence, which is often the result of adultery or extra-marital relationship or a second family but the instances of men filing cases against women for adultery are very few,” she adds. Advocates say that this is because men may not engage in an ego fight over the woman but rather just threaten her with the prospect of a criminal case. “We have seen many cases where the man asks the woman to back off and seek less alimony and let go of her child custody by threatening her with an adultery case,” says Anita Shalabh, an advocate.
While some want abrogation, others counsel caution
As the debate on the adultery law rages, the counsel and judges at the Supreme Court have also debated whether the draconian law should be done away with altogether. The Victorian-era law was tagged discriminatory by the apex court for seeing women as a “chattel” of men who have a say in allowing a woman to have sex with another man or not.
Women’s groups and feminists have hailed SC’s observations on various issues and demand that the law be done away with. “We need to decriminalise adultery while ensuring that it remains as a ground for divorce,” says noted advocate Vasudha Nagaraj. Explaining why it is necessary to decriminalise adultery, she says, “We see so many cases where men have extra-marital affairs and abuse their wives but the moment a woman seeks friendship or even talks with another man in order to get out of an abusive marriage, the shame of adultery and the threat of a case against friendship with a male looms large.” Asserting that adultery should be ground in family law to give matrimonial remedy to the estranged couple, she suggests that two consenting adults within or outside marriage of any gender must not be jailed for sex.
But some lawyers in the city caution that doing away with the law altogether would lead to erosion of basic Indian values governing marriages. “It is okay to have a revision of the law where both husband and wife can have an equal right to file cases against the other for adultery, but to completely abrogate the law would be encouraging promiscuity,” senior advocate Vani Suri, says.
About Section 497 and adultery
“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, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished.” The punishment for adultery is imprisonment for a term which may extend to five years or fine or both. In such case the wife shall not be punishable
Apex Court had upheld constitutional validity of Section 497 thrice - in 1954, 1985 and 1988
Adultery is not illegal in Bhutan, Sri Lanka, China, South Korea and all European countries. It
is illegal in 22 states of USA, Afghanistan and Pakistan
The personal laws of all major religions like Hinduism, Christianity and Islam are against adultery
A United Nations group of independent experts said in 2012 that “adultery must not be classified as a criminal offence at all”