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An adulterated law

Even if we allow for a moment the validity of adultery as a crime, the anachronism in the law stares back at us.

india Updated: Jun 07, 2007 02:49 IST

The law is as much about keeping things out of its purview as keeping things in. So when a married person is involved in an adulterous relationship, unsavoury as it may be, the event itself is something that needs to be dealt with by the married couple, not by the courts of law. Adultery should be a civil wrong, entitling the aggrieved person to divorce and subsequent damages. But it certainly shouldn’t be a criminal offence. Section 497 of the Indian Penal Code, 1860, however, doesn’t allow such ‘leeway’. The definition of an adulterer has remained pretty much unchanged since its inception three years after the 1857 Mutiny: “Whoever has sexual intercourse with a person who is... 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.”

Even if we allow for a moment the validity of adultery as a crime, the anachronism in the law stares back at us. The adulterer, necessarily a man, is effectively guilty of ‘poaching’ on ‘another man’s property’ ie the latter’s wife. Now, if the husband gives his permission to the prospective adulterer to have sexual intercourse with his wife — regardless of what the wife has to say about this bizarre arrangement — no rule or law is broken. So not only is the prevailing law on adultery anachronistic, it is actually debasing the woman, treating her as a mere commodity belonging to her ‘lord and master’.

The reasoning that women cannot be guilty of adultery stems from the patronising belief that women are “already living in humiliating and oppressive conditions within the family”. This brings us to the crux of what makes the law itself so flimsy. Women, and for that matter men, are not yet another of the State’s community groupings a la castes and minorities. They are individuals, especially in a context as ‘personal’ as sexual relationships (within or outside a marriage). So the sociological defence of women being defenceless against the onslaught of lascivious men is a partial myth that is perpetuated under the protection of law. Being exposed as adulterous has its own unpleasant social consequences and there are social disincentives in place to keep both men and women faithful to their spouses. So the law should come in to deal only with the possible consequences of adultery (divorce, alimony etc). It should keep its nose out of adultery itself.