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MORALITY PLAY
CHEATING HEARTS: Kabhi Alvida Na Kehna featured Shah Rukh Khan and Rani Mukherji in an adulterous relationship

The times they are a’ changin’. In a move which some may see as being aimed at bringing about gender equality, the government of India may soon approve an amendment to Section 497 of the Indian Penal Code (IPC) whereby women can also be booked for the crime of adultery. As of now the offence applies only to men.

And all this is courtesy the Justice V.S. Malimath Report (a committee on reforming the criminal justice system that put out its suggestions in 2003). The recommendations have been sent to many state governments to assess their response. However, gender activists, divorce lawyers and women’s rights groups are up in arms over the modifications to the adultery clause.

As the law currently stands, Section 497 of the IPC says that infidelity is a crime only for men and is punishable by a sentence of up to five years in jail and a penalty. Strangely, an offence of adultery can be registered against a man only if the husband of the woman with whom he has had an affair files a criminal complaint against him. Neither the state nor the police can act on a complaint made by anybody else — not even the wife of the adulterous man. The law also states that a wife isn’t punishable even if she is a willing participant, or an “abettor,” in adultery.

The Malimath Committee report proposes that Section 497 be amended to “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery …” Moreover, it also takes note of the way in which a wife is described — in terms of male property i.e. “chattel” — and recommends that this be reworded.

The National Commission for Women (NCW), Delhi, has been working closely with the ministry for women and child development on the suggestions made by the Malimath Committee. “There is no doubt that we need to usher in gender equality in adultery and marital laws,” says a senior NCW official. “But first we need a much wider debate and consensus building on adultery-related legal matters in the country,” he says.

One of the fundamental points of difference between the NCW and the Malimath measures is on awarding punishment to women if found guilty of adultery. “By merely prescribing a punishment for women by amending Section 497, the marriage cannot be protected or saved. Moreover, most women in rural India are socially disempowered, open to exploitation and are even forced into adultery. We need legislation which factors in these diverse social realities,” he says.

The NCW also recommends modifications to Section 198(2) of the Criminal Procedure Code which, as of now, disqualifies the wife of an unfaithful husband from prosecuting him for his promiscuous behaviour. The wife in such cases ought to be competent to file a complaint, says the NCW proposal to the ministry for women and child development since such provisions already exist under Section 498A of the IPC (harassment from spouse), Section 125 (seeking maintenance) and the Protection of Women against Domestic Violence Act, 2005.

Others feel that rather than making the woman culpable, adultery should not be a criminal offence at all. Kirti Singh, divorce lawyer and legal convenor of the All India Democratic Women’s Association (AIDWA), Delhi, says, “We need to do away with criminalising adultery. Adultery is socially harmful, but it’s obsolete, draconian and Victorian on the part of the IPC and the Malimath report to jail people and tarnish them forever for such an act. Criminalising adultery doesn’t achieve anything substantive,” she states.

The West too seems to take a not too stern view of adultery. Countries like the Netherlands, Austria, Belgium, Finland and Sweden don’t see it as a crime. Nor does the UK. In the US, the laws vary from state to state. In the states where adultery is still on the statute books, even though the unfaithful are rarely prosecuted, the penalties range from life sentence in Michigan to two years’ imprisonment in Pennsylvania and a fine of $10 in Maryland. In the US military, however, adultery is a potential court-martial offence.

Singh and the NCW feel that the way out is to place adultery under the civil offences ambit. “Any of the affected parties can then push for charges and seek requisite compensation. We need to keep the door open for negotiation between couples. Rather than being jailed, the couple needs to have the option of being able to talk to each other and reach a rapprochement. We also need to build in constructive measures like counselling for the couple under the civil offences compass. As the law stands now and according to the suggestions made by the Malimath report, these possibilities are totally shut off,” Singh points out.

But the ministry of women and child development will have none of that. Dr Kiran Chadha, joint secretary, ministry for women and child development, insists that adultery should be treated as a criminal offence. “We need to deter people from behaviour that breaks their families. And most family-breakers happen to be men,” she says, adding, “Does anyone take civil offences seriously? Look at how long the court cases go on.”

Chadha also points out that although under current laws only men can be booked for adultery, it doesn’t mean that the clause hasn’t been misused by divorce-seeking husbands. A husband in a divorce case can bring trumped up charges of his wife’s adultery in a bid to prevent her from being awarded maintenance and the custody of the children. “When that happens an ordinary woman’s reputation lies in tatters. So who said the current law is anti-men?” asks Chadha.

But others point out that if adultery for women was criminalised, the harassment and torture they face would only go up. Sudha Sundararaman, general secretary, AIDWA, Delhi, says that in many cases (particularly in rural areas), an adulterous wife is harassed before and after the affair. “By criminalising adultery we’re missing the point. It’s nothing but tokenism. What about the harrassment that follows and precedes an adulterous affair by a woman? We need laws that empower women against such violence related to adultery. The Protection of Women against Domestic Violence Act 2005 is a case in point,” she says.

As of now the IDWA is calling for an in-depth organisational discussion on the amendments proposed. But with the NCW, gender activists and others debating the matter furiously, this is one thorny legal issue that is unlikely to be resolved anytime soon.

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