Monday, 27 June, 2022
HomeOpinionOff CourtIndia not only doesn’t want to scrap Victorian adultery law, it wants...

India not only doesn’t want to scrap Victorian adultery law, it wants women included too

Text Size:

The adultery law does not exclude women to supposedly ‘protect’ them, but to deny them an equal right in a marriage.

First things first – is adultery only a man’s crime? Yes. Unfortunately, the Indian Penal Code says only a man can be sent to jail for committing adultery.

Is it only men who cheat? Are we assuming women are incapable of cheating on their husbands? No.

By treating adultery only as a man’s crime, isn’t the law undermining a woman’s autonomy because it does not recognise her free will to cheat on her husband? Yes.

So what is the solution for this glaringly “sexist” law? This is precisely the question that a constitution bench of the Supreme Court is currently addressing.

Also read: India’s lopsided adultery law: Adverse impact of patriarchy on men or women?

There are solutions, but suggesting that women must be brought under the adultery law is foolhardy. Although only a man can be punished for adultery, it is also only a man who can file a case of adultery.

The law

The adultery law excludes women but not in a way that is generally assumed. It does not exclude women to supposedly “protect” them but to deny them an equal right in a marriage.

Section 497 of the Indian Penal Code, the provision that deals with adultery, is visibly reflective of the Victorian morality.

“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.”

If you strip the legalese, adultery law basically says that a husband’s permission is required for another man to have consensual sexual relations with his wife. Significantly, the law does not give a chance to a wife to bring a case against her husband.

Also read: India maybe revolutionising, but when it comes to marriage, ‘middle-class morality’ wins

Charges will be brought against the man since the whole case is between the husband and the other man, making the wife’s consent virtually irrelevant. It will be the husband’s decision to either give or withhold consent.

Without “consent” or “connivance” of the husband, the other man can go to jail. The ‘aggrieved’ wife has no criminal law remedy since she is effectively seen as the husband’s property.

The wife cannot even bring adultery by her husband as “cruelty” against her under the Domestic Violence Act, according to a recent apex court verdict.

Of course, there are civil law remedies. For both the husband and wife, adultery is a valid ground for seeking a divorce.

It is not just the adultery law that treats women as chattel. Another provision in the Indian Penal Code, Section 498, describes “enticing or taking away or detaining with criminal intent a married woman” an offence. This law too refuses to acknowledge a wife as someone with autonomy and gives the husband a right to sue another man for “enticing” her. This is evidently not to protect wives from being enticed but to allow husbands to protect their honour and treat their wives as chattel.

Gender-neutral law is not the solution

However skewed the adultery law is against women, the solution is not to amend it and put women on an equal pedestal.

Instead of making adultery gender-neutral, it must simply be decriminalised. The reason is quite simple –criminal law must be kept away from bedrooms no matter what till everything there remains consensual.

This is was the key argument against retaining Section 377 of the IPC that criminalises homosexuality among other things. Consensual sexual relations cannot be under the purview of criminal law and do not require policing.

There are other reasons why the adultery law has no place in modern society. The state cannot have an interest in protecting marriages. If the state is allowed that power, it can be stretched to any levels.

For example, the government has repeatedly argued that marital rape cannot be criminalised because if it is done, the institution of marriage will break down. Hypothetically, the government can stretch this to argue that not having children will break down the institution of marriage.

Also read: Don’t be a rape apologist. Marital rape is rape

However, this interest in protecting marriages disappears when the state makes pronouncing instant triple talaq a criminal offence for Muslim husbands. This shows that the government’s interest in protecting “marriage as an institution” is just to dictate the terms of what is moral and what is immoral in society.

Road ahead

It is not difficult to see why the 1860 law violates basic rights of equality and non-discrimination. But a five-judge bench of the Supreme Court in 1954 has upheld the law ostensibly because, under Article 15(3) of the Constitution, the government has the power to make laws to protect the marginalised. This is the same provision that allows the government to take affirmative action but now the court will have to decide if excluding women from adultery is indeed affirmative action.

The landmark privacy ruling will, however, come in handy for the present five-judge constitution bench to reassess the law.

Subscribe to our channels on YouTube & Telegram

Why news media is in crisis & How you can fix it

India needs free, fair, non-hyphenated and questioning journalism even more as it faces multiple crises.

But the news media is in a crisis of its own. There have been brutal layoffs and pay-cuts. The best of journalism is shrinking, yielding to crude prime-time spectacle.

ThePrint has the finest young reporters, columnists and editors working for it. Sustaining journalism of this quality needs smart and thinking people like you to pay for it. Whether you live in India or overseas, you can do it here.

Support Our Journalism

Most Popular