Posted by Anuradha Sridhar

Congratulations! After looking out for the perfect man/woman to spend your life with, you have finally found the spouse of your dreams. Your parents, extended family, friends and pets (and anybody else important to you) have given their approval. You love your spouse and are happily looking forward to a bright future ahead, one that is filled with legal and societal approval.

A few years later, your marital routine settles down, maybe there is a child or two, and you are surer than ever before that both of you will continue to be blessed with conjugal bliss. Except that life brings in a shock or two.

You have caught your spouse cheating on you, and are now wondering what to do even as you grapple with conflicting emotions. Was it physical cheating or emotional cheating? Was it both? Where does this leave your marriage? Must you stay, or must you leave? If you stay, will this happen again? What will happen to the children?

Adultery is a criminal offence, depending on your gender.

Indian laws have a way of making you laugh when you least expect to. Adultery is treated differently, depending on your gender. Adultery is a criminal offence, depending on your gender. Since it is a criminal offence, the Indian Penal Code (IPC) springs into action and Section 497 deals with adultery. What does it say?

“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 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 5 years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

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Choose Your Plan!

This means if you are a man who has been cheated on by your wife, you can file a complaint against your wife’s lover (who may or may not be married). What’s interesting is that it is still a battleground between men – the aggrieved husband can take the lover to court and get him punished, while the wife can watch the two men fight. She will not be punished by law, nor can she fight for herself.

What happens if you are a woman who has been cheated on by your husband? It doesn’t matter if his lover is married to someone else or not. In either case, Section 497 won’t help. What you can do is to get a divorce without mutual consent, and state adultery as the reason. I am mentioning this in the context of The Hindu Marriage Act, and this becomes a civil case instead of a criminal one. How many cheating men divorce their wives though?

The wife will not be punished by law, nor can she fight for herself.

What happens if your spouse cheats on you and then marries his/her lover while you are still alive? This is again a criminal offence. Given the societal acceptance of polygamy (think of politicians like Mulayam Singh Yadav, M Karunanidhi), Section 494 of the IPC is not as readily known and this is what it says:

“Marrying again during lifetime of husband or wife—whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Like marriage, adultery is undergoing a change of image. The number of countries considering adultery to be a criminal offense is steadily coming down, Government benefits given to married couples are being reconsidered, divorce is becoming more acceptable, religious beliefs (and their impact on morality) are being continuously challenged and there is an increased access to people than ever before (think Facebook, Tinder or financial freedom).

Perhaps it is time for the adultery laws to change spots too. There are enough criminals in India already, and unnecessarily adding to their count doesn’t help.

Also Read: The Dutiful Wives Under The Hindu Marriage Act, 1955

Anuradha Sridhar believes in the power of written words and human connections and is often on the lookout for ways to bring the two together. Over the years, reading and watching tennis continue to capture her attention. She is a post graduate from IIM, Indore and presently works with Ernst & Young. She can be followed on LinkedIn and Twitter.

Featured Image Credit: We Heart It

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