India is one of the only three countries in Asia, and one among the very few countries in the world to criminalize adultery. India’s adultery laws aren’t very straightforward and stem from outdated ideas about marriage and women. Indian adultery law don’t penalize everyone found to commit adultery, the law is rather narrow in terms of who can be tried and is undoubtedly gendered, sexist, and patriarchal.
Section 497 of the Indian Penal Codes deals with adultery and its punishment. It states, “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 offense of rape, is guilty of the offense 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.”
To put it in layman’s terms, the law states that a man is guilty of adultery if he engages in sexual intercourse with the wife of another man, but it doesn’t amount to adultery if the woman he has sex with is unmarried, in a civil partnership, divorced, or widowed. Also, men who are married themselves cannot be tried for adultery as long as the women they engage with aren’t married.
wives of cheating men cannot bring about a case of adultery against them.
The reason adultery laws are this way doesn’t stem from a desire to exclusively penalize men, but from the systematic discrimination and prejudices against women. Only the husband of a married woman who engages in sexual intercourse with another man can file a case in this regard, wives of cheating men cannot bring about a case of adultery against them. It is often mistakenly believed that this has come to be this way because the law-makers and society at large believe women of being incapable of wrong-doing and this is often used as a critique against feminism and is the go-to argument for those who mistakenly believe the legal system is biased against men.
The reason this law exists the way it does stems from the patriarchal belief that the wife is under the ownership of the husband. By sleeping with a married woman, a man violates the rights of her husband; this is no different than rape being considered a crime against the father or husband of the victim in most scriptures. Apart from scriptures, rape was also considered a crime against the man who owned the woman until recent history. The Indian Penal Code states that adultery is an offence against a husband in respect to his wife. When a married man cheats, his wife has no legal remedies under this section, adultery is only a criminal offence when a man is hurt and his position as the unchallenged, patriarchal head who cannot be double-crossed is threatened.
Adultery laws might seem discriminatory to men on the off-set, but it is only collateral damage caused by years of patriarchy and sexism, adultery laws are just as discriminatory towards women and their cause. Adultery laws exist the way they do, not because of some collective delusional need to punish men, but our patriarchal idea that a woman isn’t an entity of her own. That said, the adultery law shouldn’t be made gender-neutral, it should be repealed altogether. Adultery may or may not be moral, but there is no reason to criminalize it. Just because something doesn’t align with our collective moral code, doesn’t mean it should be outlawed.
the adultery law shouldn’t be made gender-neutral, it should be repealed altogether.
We continue to see marriage as a sacrament and any suggestion to repeal the adultery law is vehemently opposed due to this view. It is considered by most an important part of protecting the sacrament of marriage and protecting the institution of the family. Those that defend this law use this argument to continue their unflinching opposition, but if the sanctity of marriages lies in taking away the personhood of women and making them merely the extension of the men they are married to, such sanctity of an already sexist tradition must not be protected.
That said, if the aim was really to protect the sanctity of marriage, why isn’t adultery criminalized when committed by a married man with an unmarried woman? Why isn’t the wife of the cheating man afforded the same privilege as the husband of a cheating woman to take the issue to court. Or is our concern for the sanctity of marriage only a cover to provide men who have been hurt by a cheating spouse and the people they cheat with a legal remedy. Considering this, it is essential we question whether this law stems from our need to protect the hierarchy men are traditionally afforded in a marriage, because all evidence does point to this.
Our adultery laws take shape in our patriarchal understanding aof women and their being. There are several examples of gendered, discriminatory laws, and problematic legal language, but this law might just triumph the endless list and come out on top because it takes away the personhood of women, it refuses to acknowledge them as a separate, autonomous legal entity and such a law shouldn’t be allowed to exist in our times.
Featured image source: Men’s Health