The price of adultery

The Indian law on adultery, drafted more than a century ago, makes it a punishable offence for men alone. The recent proposal to punish women too has generated much debate. Shoma A. Chatterji looks at the archaic law in the light of changing social mores

Section 497 of the Indian Penal Code (IPC) defines "adultery" thus: "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 offence of rape, is guilty of the offence 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."

Section 498 is stated as "Enticing, taking away or detaining a married woman." The ingredients of this offence are:

• Any person, man or woman, must entice another woman;

• He must know that the woman is the wife of another man;

• He must entice her from the person who is in charge of her and takes care of her;

• The enticement must be within the intention that she should have illicit intercourse with another person;

• Any person who conceals or detains any woman with that intent will also be punished.

The punishment for the offence is imprisonment up to a period of two years or fine or both. In 1959, Justice Gajendragadkar said that Section 498 was an anomaly in modern times. He opined that ‘detention’ is a crime for the man never mind whether the woman has consented or not because, according to the Supreme Court, the gist of the offence committed by the adulterous man is ‘not intended to protect the woman from unlawful enticement and detention’ but is actually intended to protect her ‘husband’s exclusive right’ over his wife. Thus, the law clearly shows that the adulterous man must be punished because, by detaining and enticing another man’s wife, he is depriving the ‘husband of custody and control over his wife’. Thus, in effect, keeping women beyond the purview of the law is actually to ‘benefit the husband’ so that he can regain custody and control over his wife by getting the
adulterous man punished.

This also implies that the wife who had consented to an adulterous relationship does not have the freedom to come out of her marriage and make a new life with her new partner even if she is oppressed in her present one. In other words, this suggests that she is brought back to the husband she wants to leave but fails to because the legal statutes, by simply ignoring her because she is a woman, force her to stay in a marriage she may not want to remain in. Adultery committed by an Indian woman, across boundaries of language, culture, education and economic status, may often be more a question of seeking security and self-esteem than love or sex beyond the parameters of marriage. It might perhaps be a search for confidence and self-assurance which a boring marriage to an indifferent spouse has destroyed.

Another clause in Section 498 states that the adulterous man (other than the husband of the woman) should "entice" her from the person who is "in charge of her and takes care of her." This assumes that no married woman is capable of taking charge of her own life and taking care of herself. Granted that this may have been true in 1847 but it is certainly not true in 2007.

In 1985, Nalini Chidambaram and Seita Vaidalingam, two lawyers, challenged the law on adultery drafted in 1860. They argued that this ‘protective’ provision in the IPC was sexually discriminatory and therefore, unconstitutional. Their charge was based on the fact that this law was drafted more than 100 years ago when men could have many wives and some of them were neglected in favour of others within the zenana. Times have changed. No woman who participates in an adulterous relationship either through consent or by active involvement should be allowed to remain beyond the purview of the law.

The lawyers added that including women within the law would actually help women to free themselves from a marriage where the husband has committed adultery with another woman. It would offer her the choice of avoiding the social stigma that is attached to the wife of an adulterous husband, not only in her marital home, but also in her natal one. Alternately, if she has entered into an adulterous relationship with a man, immunity from penal action would not necessarily ensure her freedom from greater torture and humiliation within her own home by the members of her own family. A case in point is Aparna Sen’s path breaking film Paroma, where the adulterous housewife (Rakhee) is ostracised within her own home when they learn about her affair through some revealing photographs published in an international magazine!

Four years after the Justice Malimath Committee suggested a radical change in the law on adultery in 2003, things remain pretty much the same. This Committee recommended amendments to the provisions of the IPC that disallow prosecution of women for offences under the law.

Psychology has a completely different story to tell. Psychologist Lucy Gray says that there is no single person on earth who does not have an extra-marital relationship – be it sexually or mentally. "If anybody denies it, he/she is either a hypocrite or not worth it." In the dictionary of psychology, adultery is neither a sin nor a sacred act. "It is more a matter of body than of the heart. It is first and last, a satisfaction of the sexual urge. Sexual fidelity is not the same as love. An adulterer may be as genuinely in love with his spouse as she is in love with him," says Mahesh Gandhi, homeopath-psychiatrist who specializes in anxiety disorders.

Psychologists attribute compatibility or drive orientation as vital tools for a successful marriage. A partner with a predominant sex drive would be a terrible mismatch for a partner bereft of such feelings. Economic, emotional and intellectual incompatibility could also lead to marital disharmony and adultery. Different social upbringing could throw up differences in the values each partner holds for permissive behaviour and sexual taboos and unless they arrive at a common understanding about each other’s needs and adjustments, problems are bound to follow. Sublimation of an instinctual drive like sex requires tremendous exertion of will few are capable of. Adultery, therefore, could be a healthy and natural outlet for many.

Prohibitions and taboos on adultery, written or customary, are a part of the marriage code virtually in every society. Adultery seems to be as universal and, in some instances, as common as marriage itself. The attitude may differ from culture to culture. Under the ancient Hindu law, marriage was an indissoluble sacrament. Not even a wife’s adultery unattended by degradation could sever the marital tie and dissolve the marriage. According to the modern Hindu code, divorce will be granted to either offended party, but not for occasional violations.

Marriage, today, as a man-woman relationship, has evolved from a socially useful and effective institution into a free-floating, personal relationship. Curious strains of feminism, individualism and vaguely Marxist influences have conspired to ‘privatise’ marriage into just another set of choices. The libertarian view that governments have no entitlements to pry into the private lives of their citizens, much less regulate them, is a concept that finds favour with young couples of the 21^st century. Yet, it is inconsistently libertarian, as true libertarianism would insist that individuals also pay for the consequences of their choices.

The principle of equality before the law requires the revision of the existing law on adultery by including both partners within its scope. It should include both the man and woman in an adulterous relationship because adultery means departure from marital fidelity and both partners in a marriage are equally responsible for any violation of marriage vows. At the same time, every immoral act cannot be considered a crime because there are areas in which legal provisions and moral doctrines may not coincide and may even be in conflict. If legal and moral doctrines appear to be in conflict because principles of morality are changing, it is necessary to bring about amendments and revisions in the old legal principles to fit into changing moral doctrines.