Perhaps it is time to address it, that elephant in the bedroom, lying on the marital bed, covers neatly tucked under its chin, snoring complacently. Adultery.

Defined as voluntary sexual intercourse between a married person and a person who is not their spouse, adultery though increasingly common across all segments of society, is still socially reprehensible. In India, it is criminal, punishable by a jail sentence. But there’s a caveat, the punishment for adultery is applicable only to the man who commits adultery with another man’s wife. And therein lies all that is problematic.

Kiran Manral The Married Feminist SheThePeople

The law on adultery in India is rather archaic, and was drawn up over a century ago, remaining unchanged since, though attempts have been made to do so.

The law on adultery in India is rather archaic, and was drawn up over a century ago, remaining unchanged since, though attempts have been made to do so.  According to section 497 of the IPC, a consensual-sexual relationship between a man and a married women is prohibited if the woman does not have the consent from her husband. The law punishes the man for adultery only if the husband files a complaint. If an aggrieved husband complains about a man having consensual-sexual relations with his wife, the offender can be imprisoned for up to five years. Interestingly though, if the husband commits adultery, there is no similar recourse for the wife to seek redressal.  He can only be charged if his paramour is married too, and her husband files a case against him.

This gender bias in the law is skewed in favour of women, and unfairly so. This bias, though comes from the place of patriarchy, which dictates that a wife is the husband’s ‘property’. The woman gets away scot-free even though she is equally culpable of having committed adultery. Thankfully, this outdated premise and law though, is getting a much-needed re-look with the recent announcement last week that a five judge bench of the Supreme Court will now deliberate about whether women should be punished for adultery. According to Section 497 of the Indian Penal Code, men are solely treated as perpetrators and women bear no onus for adultery.

To quote the Supreme Court, “Law cannot treat women differently for the purpose of a criminal offence when in every other offence there is no gender bias. We don’t agree with the 1954 and 1985 judgement of this court which said IPC 497 is not discriminatory against women.”

This is in response to a Kerala-based activist who filed a petition seeking that the Supreme Court review the IPC section pertaining to adultery.

To quote the bench, “Though the act is hypothetically capable of being committed by both the man and the woman only one is liable for a criminal offence….It is perceivable from the language of the provision that the fulcrum of offence is destroyed once the consent of the husband is obtained. Viewed from that scenario, the provision creates a dent on the independent identity of women.”

With gender equality something we’re fighting for, surely the woman who cheats within a marriage, as well as the man, are equally culpable. But this also raises the larger question that when adultery is an act of voluntary sexual intercourse, could it be a crime in the true sense, and that too, one that mandates five years of imprisonment? After all, this is voluntary sexual intercourse between two consenting adults. In this the age of polyamory, open marriages and hook up culture, does adultery even merit being treated as a crime? Does the state over reach its jurisdiction by entering the bedrooms of two consenting adults, where one or probably both partners are married to other people.

Adultery, at best, is a breach of trust, a civil misdemeanour, a reason enough to end a marriage. Is it a criminal act? Definitely not.

The ethical and moral standards of the time when these laws were drafted are radically different from what we have today. The status of women too has radically changed. Women have birth control and are in charge of their reproduction. Women also have an education, as well as the ability and the skills to earn an independent income. Marriage has changed from an institution that was favourable to the patriarchy, to one that is in an ideal modern world, a marriage between equals. Voluntary sexual intercourse, whether outside a marriage, or within it, needs to be treated on an equal basis. On one hand we aren’t criminalising marital rape, on the other we have a law which criminalises consensual sexual relationships. Adultery, at best, is a breach of trust, a civil misdemeanour, a reason enough to end a marriage. Is it a criminal act? Definitely not.

There have been attempts to get this changed. Way back in 1951, this law was challenged but the Bombay High Court upheld it, stating that there were special legislations for women within the Constitution. In 1971, there were recommendations that this law be changed to be made gender neutral and reducing the jail term to two years from five years. Later, in 2006, the National Commission for Women did recommend that adultery be decriminalised, but that didn’t come through. It has already long been decriminalised in all European countries as well as Latin America. In Asia, India is one of only three countries which still criminalises adultery.

In Asia, India is one of only three countries which still criminalises adultery.

Infidelity and adultery is something that most marriages never quite recover from, even if the couple continues to live together after the transgression is outed. A marriage is much more than a civil, socio-legal contract entered into by two individuals, it is one that has its very bulwark based on trust and caring, and building a life together. Love, which is mutable an emotion, in this, the day and age of disposable might or might not be a factor in a marriage, but the issue of faithfulness was an indispensable premise of the institution of marriage, which did in fact come into place in order for the male of the species to be certain that the progeny in a marriage are indeed from his own Y chromosomal contribution to the DNA. Not anymore though.

We have open marriages all too common in contemporary society. Trangressions and infidelities are looked at less censoriously. In contemporary times, the anachronism of criminalising adultery is something we need to address. After all, when we speak of consent as being paramount, we must accept that marriages are not always perfect, and that partners stray, marital rape is a real and pressing issue, and our laws must realign themselves with these changing parameters.

The apex’s court’s decision to relook at these laws is a welcome decision.

Picture Credit: mehandi-designs.blogspot)

Kiran Manral is Ideas Editor at SheThePeople.TV

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