Why India needs to decriminalise adultery

The law does not confer any right on women to prosecute the adulterous husband, or the woman with whom the husband has indulged in sexual intercourse.
By Rashmi Kalia
PUBLISHED ON AUG 12, 2018 12:13 PM IST

The recent debate on the adultery law in India and the observations of the Supreme Court bench on the shortcomings of the law has generated much heat.

Whatever the outcome of the recent petition filed by Joseph Shine who has contended that Section 497 is “unconstitutional” since it discriminates against men, it is time that India debates on whether the law should be made gender neutral or scrapped altogether.

Explaining the law on adultery in India?

Breaking it down, Section 497 Indian Penal Code (IPC) says that any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery.

The law does not confer any right on women to prosecute the adulterous husband, or the woman with whom the husband has indulged in sexual intercourse. In simple words, the husband solely has been permitted to prosecute the adulterer.

What is wrong with it?

As rightly observed by Chief Justice Dipak Mishra in the recent case, the law per se is based on discrimination as it punishes only the man and spares the woman. There is no rationale, as he says, in treating one party involved in adultery as a victim and the other as a criminal. In doing so, the law violates article 14 of the constitution since it creates an irrational classification between men and women. In the present world, where women hold positions of authority in almost all spheres, the premise that the woman is always the ‘victim’ not only undermines the notion of women’s agency but also is entirely unfair to men.

The law treats married women as the ‘property’ of their husbands on the ground that their relationship with other married persons depends on the “consent or connivance of her husband”, which also means that a woman can sleep outside her marriage with the ‘consent’ of her husband. The law gives power to a husband to control the sexuality of his lawfully wedded wife. Monoandry, more than the protection of the sanctity of a social institution, therefore, seems to be the basic premise of the law. The law allows the husband to control the sexuality of his wife in order to assert this sole claim to her body.

Besides the obvious gender discrimination that the law provides space for, the adultery law is problematic for several other reasons. The law gives a married man a right to blame an outside agency for the breakdown of his marriage. If a wife has chosen to sleep outside her marriage, it is important that the couple looks at the inadequacies in their own relationship and not hold an outsider responsible for the breakdown of their marriage. And if the relationship has lost its foundation of trust, it makes more sense that the couple approaches the courts for a mutual divorce than put a third person behind bars for breaking their marriage. The law only provides a psychological outlet to a spouse to blame a third person responsible for the failure of a marriage.

Do away with the law

It is still to be seen where the present debate on the law in the Supreme Court leads the judiciary to, even though the apex court has opined that this provision wrongfully treats women as personal property and is against our fundamental right to life. The court has also observed that adultery as a ground for divorce can be viewed as ground for reasonable restriction, which doesn’t mean that there is no sexual autonomy. It means that “there are valid limits to your sexual autonomy.”

In my opinion, it is high time that India, like many countries around the world such as Bhutan, Sri Lanka and South Korea, decriminalises adultery. The legal system should not regulate whom one sleeps with. It should only regulate the process of separation when one or both the partners violate the sanctity of a marriage. Moreover, the criminalisation of broken trust in a marriage neither leads to a couple settling down again to a blissful life nor does it alter the social behavior of the society.

( The writer is associate professor at DAV College, Chandigarh. Views expressed are personal)

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