Virgins indulge in sex for curiosity;
Harlots for money,
Widows for remembering the good old days,
Wives out of a sense of duty,
While the pure pleasure of sex is possible only in adultery.”
Learned author-journalist Khushwant Singh, once in his typical humourous and satirical tone had quoted the above version of an unknown 12th century poet, in Malice Columns of Hindustan Times, dated November 12, 2005.
However, in today’s world, we find an increasing number of ebullient people irrespective of age and status in the state of extreme titillation, longing for such an illicit pleasure. In their blind craze to taste the tipsy-cake of variety they have been scaling the giant walls of religious, social, cultural and legal boundaries unhesitatingly.
However, the top court has now heard the tocsin of adultery and related crimes albeit lately.
According to Merriam-Webster’s Dictionary of Law,1996, “Adultery is a voluntary sexual activity between a married woman and someone other than her husband.” Adultery also called ‘philandery’ anglicised from Latin ‘adulterium.’
The term adultery has an Abrahamic origin, though the concept predates Judaism and is found in many cultures, religions and legal jurisdictions, but the concept is similar is all the major religions: Christianity, Islam, Judaism and Hinduism.
According to legend, Renuka, the wife of sage Jamadagni, was famous of her devotion and chastity. Her chastity was so powerful that she had the divine power to collect water even in unbaked pots. Once, she was walking along the bank of a river and there she happened to watch a king making love with his wife on the riverbank and she developed the adulterous thought. Soon after, thinking of adultery, she lost her divine power and her husband sage Jamadagni came to know about her and ordered his son to behead her.
Historically, adultery has been considered to be a serious offence by many cultures, even in jurisdictions where adultery is not a criminal offence but a civil wrong. In countries where adultery is illegal, the punishment ranges from fines to death penalty.
In certain jurisdictions where adultery is a civil wrong ‘Tort’ case is filed for ‘alienation of affection’, which arises from one partner establishing illicit relation outside marriage. This act is known as ‘desertion’, because one spouse deserts the other for a third person.
The Hebrew Bible or Old Testament prohibits adultery in the sixth of the Ten Commandments. (Exodus 20:14). Adultery in traditional Judaism applies unequally to man and woman. For instance, it prescribes capital punishment for adultery between a man and married woman, though not for adultery between a woman and a married man. “And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbour’s wife, the adulterer and the adulteress shall surely be put to death”- (Lev.20:10).
Furthermore, the Bible prescribes ‘stoning’ not only for female extramarital sex but also for female pre-marital sex in the case where the woman lies about her ‘virginity’.
Referring to Islamic law pertaining to adultery, scholar Maulana Habeeb Haider says, “In Islam both woman and man will be punished for adultery. Quran says “The fornicatress and the fornicator, scourge you each one of them (with) a hundred stripes. And let not pity for them withhold you from enforcing the sentence of Allah, if you believe in Allah and the Last Day. And let a party of the Believers witness their punishment (24:2).” But there are very tough conditions for punishing adulterers as there must be 4 witnesses who have seen this act and witnesses must be just, sane and adult. In the absence of above mentioned conditions no charge will be proved and they will be freed, says, Haider.
According to Manusmiriti, Chapter : VIII, Verse : 371-372, “When a woman, proud of her relations (or abilities) deceives her husband (with another man), then the king should (ensure that) she be torn apart by dogs in place much frequented by people. And the evil man should be burnt in a bed of red-hot iron”.
According to Section 13(1) (i) of the Hindu Marriage Act, 1955, adultery is a matrimonial wrong which says, “Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce.”
What constitutes adultery in India?
According to Section 497 of IPC, “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 a case the wife shall not be punishable as an abettor.”
Further, Section 198 of Cr.P.C, allows a husband to bring charges against the man with whom his wife has committed adultery. But it explicitly denies the husband the right to charge his wife with adultery.
Marriage in many societies is considered to be a sacred institution, which is based on commitment and loyalty to the spouse. Adultery on the contrary is objectionable on social, moral, religious and legal grounds, as besides bringing with itself the emotional trauma, it causes collateral damage, leaving behind the trail of destruction and tragedy, quite often leading to brutal murder of spouses.
The most nightmarish phenomenon of illicit intercourse with a married woman tends to adulterate the issue of children of an innocent husband, who out of ignorance brings up and supports another man’s children. Thus, the purity of the children born out of the (supposed) wedlock is corrupted in the result of a short lived illicit pleasure.
There is a live example of N.D Tiwari and Ujjwala Sharma case in which Ujjwala Sharma was cheating on her husband Bipin Sharma for almost 30 years as Bipin thinking Rohit his son had raised him as his own blood. A recent DNA test proved that Rohit Shekhar was born to Congress leader N.D Tiwari and Ujjwala Sharma. The conception in the late 1970s happend when Ujjwala’s marriage to Bipin Sharma was subsisting. Ujjwala married Sharma in 1962 and divorced in 2006. This fact came to be known after Rohit filed a paternity suit in the Delhi High Court in 2007. After five years of an emotionally draining litigation under full public glare, the DNA test report nailed 87 year old Tiwari for the consensual physical intimacy he had with Ujjwala more than three decades ago and the biological consequence thereof.
The newspaper and TV reports are flooded with the news of wives brutally killing their husbands with the help of their lovers for the sake of illicit pleasures. In certain cases, husbands have also reportedly killed their wives after finding them in illicit relationship with other men. Mentioning a few will be sufficient to explain the horrors of illicit pleasure.
One Rakesh Kumar Singh, an IIM-Ahmedabad passout and the vice-president of an IT firm in Gurgaon stabbed his wife Shweta with a kitchen knife atleast 10 times suspecting infidelity of his wife. The couple had three children.
Sudha Chandra, 28 year old wife of an Indian Air Force sergeant was arrested in Delhi Cantonment for drugging and killing her husband Ramesh Chandra, 40, with the help of her teenage lover. Sudha was not happy with her husband and fell in love with a 17 year old boy.
On December 14, 2017, in Delhi’s Ghazipur area, a six year old girl was killed by her mother and her lover after the child had seen mother with her lover in compromising position.
In September, 2016, a young woman Barkha of Delhi’s Sarojini Nagar was arrested along with her lover Satbir for brutally crushing her husband Amit Kumar under the wheels of Satbir’s car. After killing her husband she had been wailing for five days before the police to trace her husband saying the two children aged 12 and 14 are missing the father and that she would commit suicide in the police station if they did not expedite the investigation. The police however, later on nabbed Barkha and Satbir after a CCTV footage was accessed from Bahadurgarh that showed Satbir’s Accent car crushing Amit Kumar. Satbir during investigation revealed that murder was planned by Barkha.
Who will forget the prominent ‘Tandoor’ case in which one Sushil Sharma was convicted for killing his wife Naina Sahni suspecting his wife of infidelity. Sharma, in a fit of rage shot her dead at their residence in Gole Market area of New Delhi on July 2,1995. He then cut her body into pieces, stuffed it into a gunny bag and took it to open-air Bagiya restaurant inside the erstwhile Ashok Yatri Niwas hotel and tried to burn it in the tandoor with the help of his friend, the restaurant manager.
“Today we find more and more women falling prey to extramarital affairs and one night stands for obvious reasons mainly for not getting sexual satisfaction with their husbands, though it is not always the case. Money, fun, craze for variety, promiscuity, nymphomania and peer pressure may be some other reasons,” feels European-Indian business woman Feryal Abidi. Feryal further said that if you want to save the lives of women committing adultery, prevent them from doing so by prescribing strict punishment in the law as the consequences of their mindless activity happens to be deadly not only for their own families but for the entire social fabric.
Fair sex gets unfair law support. Indian legal system has always supported woman whatever crime she may commit. She is in most of the cases presumed as innocent or the victim. The law on adultery in India has been subject to controversy with regard to several fundamental issues. The legitimacy of the law in India has been argued on the basis of its tendency to emanate a very clear sense of gender bias, which can be seen simply by examining the key features of Section 497 of IPC, according to which a man alone can be the offender and never a woman. She is considered victim of adultery and not the party to it. The law is not based on logic but only on assumptions that a man is always a seducer and the married woman is simply a passive victim of the illicit pleasure, despite of the fact that the act of adultery involves two fully grown up adults who are capable of making rational decision affecting their personal lives and participating in consensual sex.
One Deepak Mirwani, a resident of Mumbai was facing prosecution for having an affair with a married woman. He challenged the Constitutional validity of Section 497 of IPC in Bombay High Court, in 2011 on the ground that it had no relevance in the present context. He contended that the changing parameters of morality of society are apparent from the fact that live-in relationship has been recognised under Protection of Women from Domestic Violence Act, 2005.
Mirwani further contended that the right to have physical relations with a consenting party emanates from the ‘Right to Life’ as guaranteed by the Constitution of India. However, Mirwani’s contentions miserably failed to convince the Hon’ble Court. The Division Bench of Justice B.H Marlapalle and Justice U.D Salvi, came down heavily on the petitioner and said, “If your challenge is accepted, there will be no civil society left.” The Bench observed, “In fact there is a need to amend the proviso in order to bring woman also under its purview”.
The Constitutional validity of Section 497 of IPC had earlier been challenged in Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy Lalji, (AIR 1954 SC321); Sowmithri Vishnu v. Union of India, (AIR 1985 SC1618) and in V. Revathy v. Union of India (AIR 1988 SC835). In the case of Yusuf Aziz, the Court ruled that the imunity granted to women from being prosecuted under Section 497 was not discriminatory but valid under Article 15(3) of the Constitution. In the cases of Somithri and V. Revathi, it was not contemplated for a husband and a wife to strike each other with the weapon of criminal law.
In December, 2011, the Supreme Court Bench of Justices Aftab Alam and R.M Lodha had observed that punishment is meted out to the man though the woman with whom he had consensual sex was an equal partner in an alleged crime. The Bench said, “The provision (Section 497) is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in term of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for the offence of adultery.
However, now on December, 08, 2017, the three Judge Bench headed by Chief Justice of India, Dipak Misra, issued a notice to the government on the Public Interest Litigation filed by one Joseph Shine, an Italy based Indian businessman. The contention of the petitioner is that why should only a man and not a woman involved in an adulterous relationship be prosecuted?
Petitioner’s advocates Kaleeswaram Raj and Suvidutt argued that when sexual intercourse takes place with the consent of both man and woman, there is no justification for excluding one party from criminal liability.
The petitioner pointed out before the court that Section 497 of IPC and Section 198(2) of the Criminal Procedure Code are archaic and ‘gender discriminatory’. The petitioner wants the two Sections to be struck down and declared unconstitutional.
During the hearing, the Supreme Court observed, “Ordinarily, the criminal law proceeds on gender neutrality, but in this provision, as we perceive, the said concept is absent.” The Bench also noted, “It grants relief to the wife by treating her as victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence, but the other is absolved. It seems to be based on a societal presumption.”
However, earlier on April 06,2017, Supreme Court Bench headed by Chief Justice of India, J.S. Khehar in Manoj Kumar v. Champa Devi had taken a U turn by holding that the wife divorced for adultery can claim maintenance under Section 125 of Cr. P.C.
Expressing surprise on the ruling, advocate Jamal Usmani says that Section 125(4) Cr.P.C clearly says, “No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.” Jamal further said that if the circumstances as mentioned in Section 125(4) are proved, the Magistrate under Section 125(5) shall cancel the order of maintenance.
The noted lawyer KTS Tulsi feels that law should be gender neutral and the woman should also be prosecuted in suitable cases.
Senior advocate Pinky Anand says, “It is high time we change this law because it is based on the concept that woman are chattel and, therefore can commit no offence. If a man commits adultery it is a crime and if a woman commits adultery, it is not. This cannot go on. The gender bias in the law must be done away with.”