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An affair to remember

The Indian Penal Code discriminates against men in adulterous relationships. The lack of awareness of this inherent bias is evident in the statements made by women activists, writes Arvind Kala.

india Updated: Feb 07, 2007, 00:52 IST
Platform | Arvind Kala
Platform | Arvind Kala

Islamic laws discriminate against women, and rights groups are vociferous in their demand for change. Yet, little note is taken of the severe discrimination against men in India’s penal code. The abuse of the law by unscrupulous women makes it necessary for a serious review of the Penal Code. Take adultery, for instance. If a married woman is in a relationship with a man, he faces five years in prison, but she isn’t culpable. Even if she agrees to her role in court, no charges are pressed against her.

It is absurd that consensual sex is a crime for a man but not for the woman. This violates a fundamental right in the Constitution, which forbids discrimination on grounds of gender. But the 1860 colonial law continues to rule the land. It’s a different matter that the British themselves have replaced the Code with contemporary laws. In India, the law on adultery is based on the notion that a wife is her husband’s property. Moreover, the law is applicable only to married women. A man breaks no law if he indulges with a single woman over 18, a divorcee or a widow. But he is punished if he is in a relationship with a married woman because he has violated “a husband’s proprietary right over his wife”. In a modern society, we can well gag over such archaic notions.

The law is ostensibly pro-women, yet it compromises a woman’s position also. If, for instance, the ‘lover’ is married, his wife’s rights are given a go-by. The straying husband finds himself in jail, while his partner in crime (adultery here) goes scot-free.

The Ten Commandments ban adultery. Adultery was a criminal offence in almost every European country till a few decades ago. But with changing moralities and values, Western societies in the Americas and Europe, even Australia, prescribe no penalties for adultery. Nor, surprisingly, does the more traditional China, which legalised adultery 26 years ago. The argument is that consensual sex between adult men and women is a private matter. Though 23 states in the US continue with their age-old laws against adultery, they are almost never enforced. But wherever they are, the law applies to both men and women.

India remains the only country where an adultery law punishes men, but not women. Further, the punishment is draconian — five years in jail, compared to a one-year prison term in Cambodia or South Korea, or a $ 250 fine in the US state of Virginia.

Girija Vyas, president of the National Commission for Women, rejects the logic of extending India’s adultery law to embrace women as culprits rather than victims. Her argument is that women are, by and large, victims in an adulterous relationship.

But her logic is flawed. What Vyas is talking of may have been true many decades ago, but modern India certainly has its share of unscrupulous women also.

To assume that a married Indian woman is incapable of ‘straying’ of her own will is to go against a wealth of data on women’s sexuality, especially in keeping with today’s urban, educated and economically independent woman.

To assume that urban Indian women are averse to extra-marital affairs is to nurture a fallacy. Gender discrimination apart, an unjust law promotes crime. India’s law on adultery promotes entrapment, extortion and blackmail. The law, in its current form, provides a clever married woman and her husband with a legal weapon to earn mountains of easy cash.

Successful extortions are, in fact, already a reality. Protected by the law, there is little hope for the man who is caught in an affair with a married woman. In the moralistic society of double standards that we live in, it is a bit of a scam, isn’t it, that no man is ever punished for adultery? Could it be that many of them are paying up?

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