Delhi High Court's treatment of adultery laws pave way for more gender-neutral interpretations of law

The Delhi High Court has observed, last week, that an act and allegation by either spouse, irrespective of gender, would cause mental cruelty to the other spouse with the same intensity.  Justice Pradeep Nandrajog and Yogesh Khanna, the Bench which examined this case, observed that it tends to get difficult to carve out the truth in matrimonial disputes because of allegations and counter-allegations by parties as there is always a tendency to “blow up” incidents. The Bench reversed a trial court’s verdict dismissing a man’s plea seeking divorce from his wife on the grounds of cruelty.

In the case - Navratan Baid vs Neetu Baid, the family court judge had expressed that an allegation of infidelity made against the husband is not mental torture, and does not amount to cruelty. The trial court had also asked the man to provide an explanation “to remove the suspicion from the mind of his wife”. Setting aside this 2012 verdict of the trial court, the Delhi High Court stated that the appellant and respondent who were married in 1992, were living in separate houses since December 2005 and therefore, there would be no useful purpose served from maintaining the matrimonial bond. The Bench noted: “Where a marriage is broken down irretrievably, the insistence by one to continue with the matrimonial bond itself would be evidence of the desire to inflict further cruelty on the other”.

Representational image. News 18

The High Court also stated that the trial court’s approach on the issue of infidelity allegations as not amounting to mental torture was “perverse”. Justices Nandrajog and Khanna observed and rightfully so that: “A gender bias approach to the issue is revealed, when the judge reasons that unchastity by a wife is to be viewed seriously because a higher level of fidelity is expected from a wife. An allegation of infidelity made against the husband cannot be treated as mental torture. The approach by the judge is totally perverse and contrary to law”. Citing an irretrievable breakdown of marriage, the Court stated: “cruelty is a feeling which one forms in view of the conduct of the other party.”

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It is interesting to note that the offence of adultery within the Indian Penal Code is also immensely gender biased. According to Section 497 of the Indian Penal Code, “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 case the wife shall not be punishable as an abettor”. The laws prohibiting adultery treat the woman adulterer as a victim of the crime, instead of an accomplice — she is treated as the goods and chattels of her husband who can file a case against the male adulterer in a bid to protect his wife, the victim.

In the case of V Revathi vs Union of India (1988), it is striking how the law punishes the ‘outsider’ in the marriage — the male adulterer is regarded as the seducer. This ideally means that when a man’s property has been defiled and tainted, the man can seek justice for being wronged in a court of law. In Sowmithri Vishnu vs Union of India (1985), Sowmithri argued that the law was gender biased — her lover was prosecuted for adultery, and despite being an accomplice in the offence, she was considered the ‘victim’ who had to be protected by law, and exempt from punishment. It was established that “adulterer under the civil law has a wider connotation than under the Penal Code”, and “[...] it is true that the erring spouses have no remedy against each other within the confines of section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery.” The interpretation of the law did not provide for a justice pathway that might allow her to prosecute her husband for adulterous behaviour, or ways by which a husband might charge his wife as a perpetrator rather than a victim of a crime that she is an abettor of.

The social construction of infidelity, therefore, seems deeply connected to the law against adultery that provides for a framework that discriminates against gender. In V. Revathi v. Union of India, Justice Chandrachud opines that “Section 497 does not envisage the prosecution of the wife by the husband for 'adultery'. The offence of adultery as defined in that section can only be committed by a man, not by a woman.” The present Delhi High Court case, Navratan Baid v. Neetu Baid, takes this perverse judicial approach and turns it on its head, thereby, paving the way for more gender-neutral interpretations of laws surrounding matrimonial relationships.