Adultery verdict is a major victory for Indian men
She had an ice cream; I, a large glass of falooda. Age and health issues like diabetes never crossed our minds, er hearts. The school crowd around us in the ice cream parlour was civilised enough not to gawk. We relished the sweet servings, as well as memories that bobbed up in the ambiance, at the end of which she said, “Let’s go for a drive.” She is somebody’s wife. For her son, I am his mother’s boyfriend. For her husband, I am not sure who I am. Human relationships are quite complicated, like a maze of village roads we were driving through for the heck of it. More cul de sac than freeways. “Beware moral police,” she said, rolling down the shaded window to let out a semblance of normalcy. “Driving with a woman is not adultery,” I said.
“This is a village where everyone knows everyone. For the moral police, this is more than adultery. If they stop, and if I am not a true friend, I can just shout for help. You will wake up next in a hospital or a cop station. The charges then won’t be adultery, but abduction and attempted rape.”
She was joking about India’s 158-year-old sexist law on adultery, which was struck down on September 28 by the apex court. Her laughter, amplified by the sheer tenacity of love, friendship and innocence, brought my blood pressure down as I pulled over on the beach. I opened the door for her, in a world where Meghan Markle, Duchess of Sussex, opened and closed the car door herself outraging a whole nation. I have always been courteous to women, but I wouldn’t let any woman, let alone the Indian constitution, take my chivalry for granted. Yes, Section 497 of the Indian Penal Code was gender-biased, but more discriminatory against men than women. Period.
It’s this constitutional bias against men that forced Joseph Shine, a 41-year-old Indian hotelier in Italy, to lead a crusade against Section 497, which made adultery an offense only with respect to a man who has a relationship with somebody’s wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years. Taking a page from the life of a close friend, who committed suicide after a woman colleague made a false rape complaint, Shine took it upon himself to rescue Indian men from being penalised for extra-marital affairs by vindictive women or their husbands.
India is gender-divided in its celebrations over the annulment. More than a victory for equal rights for women, for Shine as well as hordes of others like me, the abolition of the law is a landmark victory for men who have been arguing that sexual relations between two consenting partners should not be subject to police investigation or criminal justice process. The law was sexist in giving a married woman a carte blanche to have intimate relations with whoever she wanted while her partner in the act was held liable. It was first challenged in 1954 by a petitioner who questioned why women cannot be punished. The Supreme Court rejected that plea, and a couple of others in 1985 and 1988.
“The stability of marriage is not an ideal to be scorned,” a judge said in the 1985 ruling. I did not quite understand how the sanctity and stability of marriage are preserved upon the make-believe understanding that the wife is not an abettor but a victim though she was, in fact, a willing participant. Denial of equal justice to men, cast away behind bars for five long years, was certainly more brutish than the perceived denial of equal rights to women. No saner person would justify this constitutional discrimination. Breast-beating about their right to equality, women had all along maintained a conspicuous silence as the sword of Damocles hung over men. Women had enjoyed legal protection on the flimsy belief that it is the man who is the seducer and not the woman. That has come to an end with the apex court judges ruling that the ancient the notion of the man being a perpetrator and the woman being a victim no longer hold good.
Taking down the law, the Supreme Court of India also agreed with the argument that while the legislation appeared to protect women, it also left them at a disadvantage. The law said a married man could be imprisoned if he had sexual relations with a married woman without the consent of her husband. It also prevented a wife from prosecuting her husband or the woman with whom he was having extramarital relation. But men’s rights activists argue women have other laws that empowered them to act against their husbands. Section 498a makes cruelty by a husband or a relative illegal and punishable.
If you are still unclear why the law is considered misogynistic and patriarchal in nature, read what lawyer Rebecca John has to say: “The fact that only men were convicted of the crime meant that they were paying for messing with another man’s property — in this case his wife. Her consent did not matter at all.” Aren’t these concerns more perceptual than practical in nature?
But there are may dissenting voices among women themselves, with some arguing that the apex court verdict licenses married couples to indulge in illegitimate relationships. They had expected the court to make Section 497 gender-neutral, criminalising adultery both for men and women, instead of creating a gateway to polygamy. If adultery is not a crime, they wonder, how a woman can take legal action against a polygamist husband. Congress leader Renuka Chowdhury believes unbridled men could now create hell for women. People of her ilk cannot have their cake and eat it too. Make up your mind, women. Don’t come back to the court to re-criminalise adultery by men. We are not guinea pigs.
I guess the judges know it better. “Very often, adultery happens when the marriage has already broken down and the couple is living separately. If either of them indulges in sex with another person, should it be punished under Section 497?” asks Justice DY Chandrachud.
“Adultery might not be cause of unhappy marriage, it could be result of it,” Chief Justice Dipak Misra pronounced, leaving the onus on the couples to find out the problems causing an unhappy marriage. Misra has emancipated the couples from each other’s bondage on the grounds of sexual autonomy. Thank you, my Lords. My heart wouldn’t drop the next time my female friend requests me to drive her to the beach. I would vroom along the freeway laid by five wise men of the judiciary in the glorious space of emotional autonomy. The point of no return has arrived for the Indian male.
The law was sexist in giving a married woman a carte blanche to have intimate relations with whoever she wanted while her partner in the act was held liable.