The law is an ass

Adultery is a great subject for books and movies. It bristles with possibilities — of love, lust, jealousy, fear, rage and so on. And it has huge potential for drama — for tragedy or even the darkly tragi-comic (think Gone Girl). In India, though, adultery, looked at from the legal standpoint, verges on comedy. Section 497 of the Indian Penal Code, the law that deals with adultery, is so astonishingly absurd that it would be hilarious if it weren’t outrageous. 

Section 497 criminalises adultery — a legal stricture that most civilised countries dispensed with years ago. It also puts the burden of guilt on the man who is in an adulterous relationship. The woman in question is considered innocent. Naturally, men feel that this is unjust and that both parties — the man and the woman — should be held equally liable for the act.

They have a point. However, the beauty of this dinosaur legislation (it was instituted by the British in 1860) is that it manages to be anti-women even while it appears to be throwing a protective arm around them. By assuming that the adulterous woman is blameless, it infantilises her, as though she were a helpless plaything in the hands of her home-wrecking lover. It’s a brilliant, curveball piece of sexism, which happens to be unfair to men as well.

But there’s more. The law says that if a man has sexual intercourse with another man’s wife “without the consent or connivance of that man” he will be held guilty of adultery. Which is really another way of saying that a wife is her husband’s property, and that if he sanctions it, some other man can go ahead and have sex with her.  

When will we stop hearing these homilies about the ‘sanctity of marriage’? Photo: iStock

Also, while a man can bring charges against his wife’s paramour, the law does not grant the same privilege to a wronged wife. If her husband cheats on her, she must lump it — she can sue neither him nor his lover. In other words, both the crime and its punishment can only be initiated by men. In the eyes of the law, women — adulterous or aggrieved, faithless or furious — are entirely without agency.

Hence, Section 497 is absurd not merely because it criminalises adultery, which is an act between two consenting adults. It is also a horrendous example of gender discrimination, and one wonders how it continues to survive in our statute books at a time when the powers-that-be are tireless in trumpeting their support for “women’s empowerment”.  

But survive it does, having weathered multiple attempts to get it struck down in different courts around the country. In fact, the Supreme Court is currently hearing a petition challenging the constitutionality of Section 497. Throwing its weight behind the antiquated law, the government submitted an affidavit to the court this week, stating, “Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages.”

When will we stop hearing these homilies about the “sanctity of marriage”? And their implied sermon that we need to put up with all sorts of injustices for its sake? The same old shibboleth is also cited each time there is a demand for a law against marital rape. You can’t criminalise a man who rapes his wife, so goes the argument, because marriage is a sacrament. So the husband enjoys impunity, the wife has no rights over her body, and it's all said to be for the good of their sacred marital bond.  

The point is that the law should punish violence and coercion — not acts of free will between two consenting adults. And no matter where adultery figures in your moral universe, it is undoubtedly a consensual act. 

This week the Supreme Court has been hearing a plea to decriminalise gay sex. After years of moral panic and pusillanimity on the part of the executive and the judiciary, it now appears that the LGBTQ community may finally get their human right. This raises the hope that the apex court will hand out a progressive judgment on Section 497 too. In a modern society there is no place for a law that criminalises adultery and is staggeringly sexist to boot.