Moral dilemmas as India makes adultery personal
What next for Indian marriages after the landmark Supreme Court judgment?
Of the several albatrosses that hung around its neck from the colonial era, Section 497 of the Indian Penal Code presented some moral dilemmas. The law states, “Whoever has intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without consent or connivance of that man, such 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 both. In such a case, the wife shall not be punishable as an abettor.”
Reinforced in its myopic vision is a simplistic idea of a marriage, and a man and a woman’s place in it. In no uncertain terms, the Indian Penal Code states that a man can be held guilty if found committing adultery with a married woman; that the married woman herself has little or no agency as the act itself can be considered permissible if her husband offers his consent to it; and that the law will not hold if a married man is in a physical relationship with an unmarried woman.
In effect, men are the judge as well as victims; while women have little autonomy. At its heart, there is an important question — must an individual’s sexual autonomy be policed by the law?
No, stated the Indian Supreme Court in no uncertain terms this week in a landmark ruling that has now struck off adultery as a criminal offence. The message is loud and clear — adultery might be a personal failing, but it is certainly not a legal transgression.
It is but natural for the judgment to be read as a triumph for women’s rights in India. A larger picture points to a larger victory — the triumph of personal autonomy over societal values. It’s an important message to send out in a society where we expect laws to mirror moral codes. More often than not, they are entwined to enforce certain ideals that individuals otherwise may or may not believe in. The judgment in that sense is not a validation of adultery (it’s still a ground for divorce); rather, it’s a recognition of the fact that the personal needn’t be political. In that sense, the judgment is a hurrah moment.
One that has not come without its share of skepticism.
A slew of responses indicate that this could go either way for men and women in India. Soon after the judgment, the chairperson of the Delhi Commission for Women, Swati Maliwal took to Twitter to say, “They’ve given licence to married couples for adulterous relationships. What’s the sanctity of marriage then? Instead of making 497 gender-neutral, criminalising it for both women and men, they have decriminalised it totally. Anti-women decision.”
Have the married couples in India truly been granted a licence to commit adultery? Has sanctity truly been snatched from the institution of marriage? Perhaps a more interesting question is — does one need fear of law in order to remain faithful in a marriage? Moreover, where do Indian marriages go from here?
Not all fears are absolutely unfounded, though. Taking a more angular view on the subject, social activist Brinda Adige commented: “Because we know that men very often marry two, three times and there is so much of problem when the first, second or third wife are abandoned. If adultery is not a crime, how is this woman even going to file a case against the husband who might desert or abandon her. It’s a concern.”
While the existing law did not exactly empower the ‘wronged’ wife, it’s worth noting that outside of courtrooms, laws have different impacts on people from different strata of society. Adige is not wrong when she points to the fact that the real impact may just be felt more acutely among women who belong to economically weaker sections of society and navigate marriages from a position of social and financial disadvantage.
However, viewing the judgment from this prism alone would mean limiting its scope. For now, we should take heart in the Supreme Court taking its gaze away from bedrooms.
While the existing law did not exactly empower the ‘wronged’ wife, it’s worth noting that outside of courtrooms, laws have different impacts on people from different strata of society