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| Edited By: Abha Singh,Bishakha Datta |Source: DNA |Updated: Aug 12, 2018, 07:19 AM IST
Indian laws around adultery have been a raging issue ever since petitioner Joseph Shine argued that the current laws around the issue only holds men culpable and not women. Article 497 of the Indian Penal Code states that if a man has sexual intercourse with a married woman, without the husband's consent, he is guilty of adultery. The petition can be filed by the aggrieved husband against the wife's lover and is "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."
While it is true that only the male lover of the woman is held culpable through this law, it also gives women no agency, since they cannot file a case against their husbands. The Supreme Court decried that the law goes against both Article 14 and 15 of the Constitution of India (Right to Equality and Freedom from Discrimination respectively).
Justice DY Chandrachud, who was a part of the five-judge Constitution bench looking into the penal law on adultery, remarked, "Why should adultery be a crime at all if it violates Article 14 of the Constitution?" Bangaluru-based advocate Jayna Kothari also questioned if legal action against adultery is valid since it goes against people's right to decide their own sexual relations and is a blow against privacy. With the Central Government completely against decriminalising adultery for fear of its maligning the "sanctity of marriage", we speak to experts to get their views on whether adultery should be decriminalised or not:
(Illustration: Gajanan Nirphale)
I am against the law as it stands since it goes against equality – both on the grounds of the wife not being culpable and because the woman is basically treated as chattel in the marriage market, and given no agency to file a complaint under the current law. By not giving women the right to prosecute, you are taking away their right to equality (Article 14), you are discriminating against the husband and wife (Article 15), and you are taking away her right to life (Article 21). It is arbitrary.
However, I do not think that adultery should be completely decriminalised. In India, marriage is a sensitive issue. The sanctity of marriage will be ruined if you no longer consider it a crime. One issue is that there will no longer be any loyalty factor in marriage (backed by a law).
Secondly, what about the wives who stay in villages, while their husbands go to cities, or out of the country to work, or join the army? They have this law that protects them from being hounded by unscrupulous men. Laws are also there as a means for deterrence – you deter a person from committing a crime. Once you decriminalise adultery, these women will become easy game for opportunistic men.
It is not just non-concensual sex, which could then be tried as rape. In this scenario, the issue is luring a married woman – a consensual physical relationship in a moment of weakness. Indirectly, fear of this section was protecting women who are living alone, especially in rural areas.
In today's modern world, you say that who sleeps with whom is a personal matter and should not be criminally punishable. But we cannot forget rural women, who don't have an access to that level of awareness.
Section 198 (2) of the CRPC (Criminal Procedure Code) also believes in the joint family system since it states that someone who has the care of the girl can also file a case.
The law commission, on two previous occasions, and more recently, the government, have not moved from the stance of trying adultery in the criminal court. There was a lot of thought put into the law when it came into action, and it shouldn't be completely discarded. You have to consider the ramifications. You strike down 497, but bring another law into place.
Adultery is also not a part of 498(A), which is mental cruelty during marriage. Several cases have gone up in front of the Supreme Court, but it has refused to make adultery a part of mental cruelty. This is a cognisible, non-bailable offence with three years of imprisonment.
Adultery is also a strong reason for committing suicide. You can try it under abatement, but by categorising it under adultery, you classify the crime. The law then could be more straight-cut. As a lawyer who handles a lot of divorce cases and a women's rights activist, the government needs to keep this aspect in mind.
South Africa and South Korea may have decriminalised the law, the USA still has it, despite having a strong feminist movement. In the West, they may have decriminalised it, but India, with its culture, value and tradition. We are not yet ready for the law to be decriminalised.
A committee should be set up that includes the law commission, the Women and Child Development Ministry and also NGOs working for women's rights to create a new litigation altogether. Bringing it under 498(A) (Cruelty in marriage)would be a discrimination against men, since only women can file petitions under this act. A new, equal law is the need of the hour.
Abha Singh is an advocate practicing in the High Court of Judicature at Bombay.
–As told to Dyuti Basu
I have a problem with the word 'adultery'. Because it's such a corny word that's rarely used outside the law, I was curious about its origins. I looked it up online and found that 'adultery' comes from 12th century French ('voluntary violation of the marriage bed') and 15th century Latin ('to corrupt'). Honestly, this is such an archaic concept that I just cannot understand how this word – or the way it frames a relationship outside of marriage – applies to our lives today. It's clearly time for it to go.
The image that the word 'adultery' conjures up for me is that of the letter 'A' in Nathaniel Hawthorne's classic, The Scarlet Letter. This punishing letter is what the book's protagonist is made to wear after she has an affair with a man while married. The 'A' stands not just for 'Adulteress', but also for public shame as she stands on a scaffolding in the centre of the town. The idea behind the scarlet letter 'A' is to shame not just her but also to provide a moral lesson for the women watching her: don't do this, or you'll be shamed too.
Shaming and punishing an urge that is as old as the hills. Is this the world we want to live in? Is this the future we want to build? One in which extra-marital relationships are punished through the law. Adultery was once considered a sin, or a religious offence. Today, it's a crime, or a legal offence. But really, look a bit deeper. What we call adultery is nothing but a moralistic term to mask age-old inclinations: Love. Romance. Desire.
Should the law legislate what the heart cannot? Can the law mend the broken heart of someone watching their lover or spouse whose mind is filled with thoughts of another? Must the law step into the bedroom every time a married person – man, woman, trans – has an affair? No. For me, an 'extra' relationship that is creating friction between two individuals – queer, straight or whatever – has to be left to them to work out, as long as the only harm is a broken heart.
Some people say that getting rid of the legal provision around adultery would wipe out the 'sanctity of marriage'. Another archaic phrase that has no meaning in everyday lives. Especially if we look at it from the point of view of married women. For god's sake, here is an institution that has evolved into a prime excuse to: 1) tether women to domesticity; 2) deny women the right to work, earn and spend money how they want; 3) ensure that women live in the constant shadow of their husbands or in-laws; 4) prevent women from realising their own dreams and aspirations; 5) ensure that they can't refuse to have sex with their husbands (since marital rape is not yet a crime in India). Why would we want to preserve the sanctity of an institution like this? For goddess' sake, let's move marriage towards equality, so that it meets the needs of both parties involved, right? Not just one.
And, if we care about married women and protecting their rights, why don't we do something that will really make a difference? Why don't we criminalise marital rape? Why don't we get serious about punishing violence, cruelty and other harms within marriage? Some of these happen during extra-marital situations, but many don't! And extra-marital relationships aren't clones of each other; they don't all necessarily result in cruelty within marriage. Seriously, think about it. If we really care about the rights of married women, why don't we make it easier to file complaints about domestic or sexual violence? Why are we always morally tilting at windmills through the law, instead of strengthening it to deal with actual harms that women experience every day?
With Independence Day right around the corner, this is a great time to free ourselves from our legal colonial hangover. Let's decriminalise adultery. Let's decriminalise consensual adult relationships instead of pretending they're "against the order of nature". As the more than 1000-year-old Sanskrit love poem 'Caurapañcik '? (The Love Thief) said, albeit in a different voice, let's uphold all our rights and freedoms this August 15. Including the right to sexual freedom.
Bishakha Datta is the Executive Director of Point of View, a Mumbai based not-for-profit.
Adultery – 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
Enticing or taking away or detaining with criminal intent a married woman – Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both
Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. – For the purpose of this section, "cruelty" means –
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand
Prosecution for offences against marriage – No person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf
