“Most unenforced criminal laws survive in order to satisfy moral objections to established modes of conduct. They are unenforced because we want to continue our conduct, and unrepealed because we want to preserve our morals.” – American legal scholar, Thurman Arnold made this astute observation in his treatise, The Symbols of Government, 1935, almost a century ago, sparking greater deliberation on what were considered to be ‘morality laws’ – laws which controlled the sexual conduct of individuals.
Taking adultery as one such instance of sexual conduct, contemporary Indian law criminalises adultery under Section 497 of the Indian Penal Code. Subsequent jurisprudence has also upheld the proposition in law, to what may be the detriment of a more progressive order of society.
Women all over the country may stand up for equal rights and egalitarian treatment; they may move towards fighting patriarchal privilege and everyday instances of sexism. However, what is absolutely necessary, is that our laws keep up with the pace of our society. When our criminal laws continue to impede sexual conduct, which must necessarily be private and personal, it reinforces the very imposition of a narrow notion of morality that the Indian women’s liberation movement continues to oppose.
This article, in no way, condones, glorifies or romanticises adultery. It simply points out that criminalising one aspect of sexual behaviour opens up a perilous path of criminalising other types of sexual behaviour where the law should effectively have no right to intrude.
Adultery through the ages
The treatment of adultery under Indian penal law arises from an archaic sense of preservation of a woman’s sexuality in order to refrain from tempting a man’s lust. Women, and by extension their sexuality, remained the property of their husbands alone.
one aspect of sexual behaviour opens up a perilous path of criminalising other types of sexual behaviour.
The idea percolated over time and legislation with English Lord Chief Justice John Holt having said that a man who has sexual relations with another’s wife commits the highest invasion of property. The Second Law Commission in India (1853), at the behest of John Romilly prescribed penal punishment for adultery – provisions for which have been retained to this very day, despite opposition to the contrary.
Justice Anna Chandy spoke out most vociferously against criminalising adultery in the 42nd Report of the Fifth Law Commission (1971) but to no avail. The Justice Malimath Committee in 2003 defended the utility of a penal offence of adultery, provided its sentence was reduced and it was made gender neutral.
The Supreme Court continued to uphold the validity of criminalising adultery, either by deferring the matter to the Parliament as a legislative responsibility to change the law, or by using it to preserve the sanctity of marriage, or by defending the provisions as offering reverse discrimination for the benefit of Indian women.
The implications of decriminalising adultery
Much of the Indian approach to criminalising adultery comes from the colonial leftovers of British rule in India. It panders to the idea that women remain the property of their husbands, due to which their complicity in any adulterous act is immaterial. The only wrongdoers here are the men who bed women outside the confines of a marriage.
Voices both inside and outside the legal fraternity have announced their reservations against the sheer absurdity of such an imbalance. The matter has come to the forearm of legal reform and women’s rights issues with the Supreme Court hearing a petition filed by Joseph Shine, challenging the constitutionality of Section 497 read with Section 198(2) of the Criminal Procedure Code. One of the preliminary observations the Court made in the proceedings, was that the impugned sections relieved women of any liability despite the fact that adultery could be committed by either partner in a relationship.
There are two grave implications of the Indian law on adultery – the first is clearly the archaic idea that adultery is a gendered act that can be perpetrated by men alone. The second is that by shielding women from any culpability in an adulterous act, especially when the consent or knowledge of the husband is enough to stall such an act, divests women of an independent identity.
The notion that the husband’s knowledge, consent or complicity in an adulterous act voids any such complaint reinforces the treatment of women as their husband’s property. Adultery is ultimately a personal plight for all parties involved. To treat one as less of a culprit than another, or to treat one as less affected than the other, is to disrupt the balance in a relationship.
The Supreme Court’s perusal of the matter comes at an opportune time; with Indian courts having recently recognised the Right to Privacy as a fundamental right, it becomes much easier to question adultery law on the basis of a right to sexual privacy. Within the confines of a marriage, adultery is grounds for divorce under the various civil laws in India.
Much of the Indian approach to criminalising adultery comes from the colonial leftovers of British rule in India.
However, to make it criminally punishable suggests that adultery, like any other crime, is a wrong against the State and not just against the individual who suffered its immediate harm. Effectively, criminalising adultery means transgressing far beyond the bounds of a personal marital relationship; it implies that the State has the moralistic upper hand in dictating what the ideal behaviour in a marriage should be.
Permitting the State to impose a set notion of what morality is supposed to look like and then giving them the leeway to punish individuals who don’t subscribe to set standards, compromises the larger right to privacy. Privacy, in itself, protects an individual’s choice and decisions.
The State cannot take it upon itself to decide the morality of such choice or decision. What this necessarily means for women, in a country where rigid notions of morality are already impressed upon girls from a very young age, is that the State neither treats them as property, nor as measures of a collective morality.
The Indian women’s liberation movement does little for its people, while repressive laws which regulate sexual and behavioural choices of individuals to the point of a rigid morality continue to persist. Infidelity may be a severe blow in a relationship like marriage, but criminalising it does nothing more than intrude upon an individual’s right to sexual privacy and choice.
Infidelity may also be an unattractive social element, but the mere unpleasantness associated with the act of adultery cannot be grounds for State intrusion into personal liberty. Decriminalising adultery doesn’t encourage adulterers any further, or take away all relief from those affected by an adulterous act; it simply takes away the State’s intrusion in an area that is purely personal.
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