Delhi High Court wants law to change with time and shed gender bias

Harish V. Nair (for Hindustan Times) - June 5, 2007

Should women be punished for adultery?

THE DELHI High Court has reopened the old debate on whether women should also be punished for adultery.

At present a married woman involved in an illicit relationship cannot be prosecuted by her husband for adultery since the law sees her as 'victim'. Her lover can, and is seen as the sole perpetrator of the crime. The maximum punishment for adultery is five years imprisonment.

While quashing a case of adultery for lack of evidence, Justice A.K. Sikri on Monday observed that society had changed a great deal since Lord Macaulay drafted his penal code for the country in 1837 - which became the basis of the Indian Penal Code. The strict segregation of the sexes at the time, including the purdah system, made voluntary adultery for women almost impossible.

It was the fourth report of the Law Commission that clearly said adultery was a crime committed only by men. Women were excluded because they were, "already living in humiliating and oppressive conditions within the family".

That women should also be charged in adultery cases was first recommended by the 42nd report of the Law Commission. The report of the Justice V.S. Malimath committee on criminal law reform in 2003
said the same.

Another view has been expressed by the National Commission for Women (NCW) and the Madhav Menon panel's draft National Policy on Criminal Justice. Both have said that adultery should not be treated as a crime at all, and Section 497 of the IPC, which relates to it, should be scrapped.

"We have yet to see how Parliament reacts to the recommendations and whether Section 497 is retained and offending women are also included thereby enlarging the scope of this section or the legislature goes to the other extreme by abrogating the section altogether," said Justice Sikri.

Justice Malimath told HT: "There is no reason for not meting out similar treatment to the wife who has sexual intercourse with anybody other than the husband."

But NCW Chairperson Girija Vyas was firmly against punishing women for adultery. "The woman is the victim all the time," she said. "During court cases, husbands often level false charges against wives. This is mostly seen when the question of granting maintenance to the wife arises following a divorce."

harish.nair@hindustantimes.com