About a week ago, out of sheer boredom, I was looking up some sections of the Indian Penal Code (IPC) – for that is how pathetic my life, really, is – when I came across section 497 of the same – on adultery – which, until then, I did not even know was a crime. It says:
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 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.
If you were lost by its language like I was, let me put it in plain English: under the IPC, only a man – but, never a woman – can be charged with adultery, i.e. adultery is a crime only when a man commits it. So, if you are man – married or otherwise – and have had sexual intercourse with a married woman, knowing she is married, “without the consent or connivance” of her husband, you are a criminal and, if proven guilty of that crime, can spend up to five years in prison.
But, what if you are a woman? Then, you cannot commit this crime, so you can go ahead and cheat on your husband as much as you want. But, if you are the one being cheated on, i.e. if your husband is having an affair behind your back, then there is nothing you can do either, at least not under this law, for only the husband of an ‘adulterous’ wife – or someone on his behalf – can allege adultery under it and, that too, only against the man with whom his wife has allegedly had sexual intercourse, but not against his ‘adulterous’ wife. In the eyes of this law, a married woman cannot be the victim of adultery, just like she cannot be an adulteress either, for this law recognises only a married man as a victim of adultery, just like it recognises married, as also unmarried, men as adulterers.
As you can well imagine, I was curious to know how and why such a lopsided, and frankly unnecessary, law came into being. So, I looked up the Law Commission of India’s Forty-Second Report on the Indian Penal Code. Why? Because the IPC was drafted by its progenitor, the first Law Commission of British India under the chairmanship of Thomas Babington Macaulay. In four pages, from 323 to 327, lay the answer to my questions. Of course, it also confirmed that this law too had been enacted by the British, like most Indian laws, and that it was part of the original IPC as it was when it became law in 1860, i.e. it has remain unchanged for 154 years.
But, what prompted this criminalisation of adultery more than a century-and-a-half ago was to prevent, in Macaulay’s words, “injured husbands of the higher classes from taking the law into their own hands”. In simpler terms, it seems, some cases of husbands murdering the lovers of their wives in a fit of rage had come to the attention of the British and they hoped that criminalising their wives’ paramours would prevent these ‘wronged’ husbands from killing them. However, Macaulay was unconvinced, for argued he “that the existing laws for the punishment of adultery are altogether inefficacious for [this] purpose” and, accordingly, kept this section out of his, the first, draft of the Penal Code. But, the other Law Commissioners disagreed, arguing instead that “the offence of adultery ought not to be omitted from the Code,” with the caveat that “the male offender alone [be] liable to punishment” in deference to the “condition of women in this country.” So, basically, a colonial sense of chivalry, or, maybe, just pity for the sorry state of women in their colony saved them from being penalised for adultery.
The report in which I found all this was, however, drafted by Indians, in 1971, more than two decades after the constitutional right to equality had come into effect. Unburdened by the chivalry of our former colonial masters, these Law Commissioners, tasked with revising the IPC, felt “that the reasons which weighed with the Law Commissioners in the last century in exempting the wife from punishment [were] by and large no longer valid” and, thereby, recommended “that the exemption of the wife from punishment under section 497 should be removed”. Fair enough, but one would have thought that, in the name of the equality of sexes, they would also recommend that “the unfaithful husband who has a mistress or goes to a prostitute should also be punishable for committing adultery”, as had been suggested. But, they did not. Instead, they rejected it, saying that the suggestion “did not find a sympathetic response in any corner.” In other words, the Law Commission was saying that, like men, married women could now be adjudged perpetrators of criminal adultery, too, but, unlike men, they still would not be recognised as victims of criminal adultery, even if they happen to catch their husbands in the act. That privilege remained with the married men alone.
Thankfully, their recommendation went unheeded and, thus, the law remained as it was in 1860 and as it does to this day, unchanged. And it remains as ineffective today, in the 21st century, as it was in the 19th century in preventing husbands from harming their wives or their paramours. But, no post-colonial Law Commission has yet recommended its repeal and no Member of Parliament has, as far as I know, attempted it either. And here I thought more than fifteen decades of failure would have finally earned some support for its repeal.
So, until it is, men beware! Sleep not with married women lest you be sent to prison.
Issued in male interest