Adultery: Dimensions and Social Character

“Adultery is more a matter of body than of the heart. It is first and last, a satisfaction of the sexual urge.” – Mahesh Gandhi, psychiatrist

Section 497, The Indian Penal Code, 1860 provides that a married woman involved in an extramarital relationship is legally not guilty while the man who is having an affair with her will be committing a criminal offence, and could be imprisoned up to five years or fined or made to endure both. As the law exists, she may be considered a victim and her lover as the perpetuator of the crime. But when the first draft of penal law was framed in 1837, adultery was not recognised as a crime.

Sexual force is considered energy by Hindus. If it is under control mental, emotional, physical balance can be provided by it. On the other hand, if it gets out of control, sexual force would give rise to lingering guilt creating misunderstandings. Physical (the worst); emotional (very distressing); and mental (the secret kind) are three kinds of adultery known to exist. The most common is physical adultery. The other two kinds have developed only recently with change in society and its set-up. Emotional adultery can be said to exist between colleagues of opposite sex who may get attracted to each other in workplaces. Mental adultery is the secret culprit.

K.I.Vibhuti, Professor, Department of Law, University of Pune has characterised the penal law of adultery in India premised on a few outdated and moot assumptions of sexuality, sexual agency and unequal mutual martial rights and obligations of the spouses. It is clear that bias in law is not actually against men but women as the husbands can punish the adulterous men , maintaining their control over wives as before. Justice Gajendragadkar opined (as early in 1959) that the existing law is actually intended to protect husband’s exclusive right over his wife but not for protecting woman from unlawful enticement and detention. 42nd Report of the Law Commission pointed out that in view of the changed status and position of women, the guilty pair should be treated alike.

Shoma A. Chatterjee reports in Saturday Extra that adultery committed by an Indian woman may often be a question of seeking security and self-esteem than sex or love beyond the parameters of marriage. The National Policy on Criminal Justice recommends that adultery be treated as a social offence rather than a criminal one. Santosh Kumar puts it, “The concept of adultery has always been disapproved by society. But this does not make adultery a criminal offence as there are various circumstances like family problems, maladjustment between spouses, etc which may lead one into such a relationship. Hence, it is more a social than a criminal offence.”

The present law on adultery as provided in I.P.C is ‘biased against men’ which was not so in ancient times as regulated by scriptures and Vedic texts. The recommendation of Malimath Committee (2003) to make both men and women liable for adultery must be accepted to transform equality in spirit enshrined in the Constitution to equality in fact.

Bhumika Sharma


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