What the SC ruling means

Adultery and Gender Equality

The Supreme Court recently unshackled a vestige of the colonial mindset and struck down a 160-year-old law that criminalised adultery. The apex court based its decision on the logic that a man is not the master of his wife, and thus cannot exercise such control over her. The Supreme Court, through this judgement, appears to have shed the patriarchal shroud of morality, which has oppressed men and women alike for so long.

The British colonial rulers who drafted laws in the 19th century had heavy overtones of Victorian values, known for its oppressive societal morals. Under them, Indian society started to accept and nurture as its own these oppressive values, and the British explanations of expressions like adultery, homosexuality, insanity, etc., started to make logical sense.

The Victorian period in England lasted through most of the 19th century, from where India gets most of its ‘sanskaar’ or legal legacy. Thomas Babington Macaulay, the author of the Indian Penal Code, 1860, introduced the crime of adultery into the statute. Similarly, several laws in India pre-date our Independence and the IPC is one such anachronistic legislation.

The provision on adultery had been challenged in the Supreme Court on multiple occasions on grounds that it violated the right to equality. The most authoritative of decisions in these cases were delivered in separate judgements in 1954, 1985 and 1988, but the argument was not accepted as the court reasoned that a marriage is a union of two persons. The man is the guardian of this institution against any outside attacks. All the same, it could not explain why the wife did not have similar rights against an errant woman who seduced the former’s husband.

The law on adultery as a crime was contentious because it derived from the biblical notion of oneness of marriage. Adultery as a ground for divorce is gender-neutral. It defines adultery as an act of sexual intercourse with any person other than one’s spouse. The aggrieved spouse will thus have a right to sue the erring spouse for divorce. The criminal law of adultery, on the other hand, defines adultery to be a crime committed by only a man, and against another man.

If a man has sexual intercourse with a woman whom he knows to be or has reason to believe her to be another man’s wife, then the husband of the woman can file a criminal complaint against him. Simply put, the crime of adultery is committed by one man against another man, through sexual intercourse with the aggrieved man’s wife. It rests on the principle that the wife is an innocent pawn, who gets seduced by sinister men, to thereby hurt the husband’s exclusive sexual rights.

This law was regressive in two ways. One, the woman’s rights as an individual were not recognised. Her consent in the adulterous act did not make her a guilty party. Rather, it made her akin to stray cattle that can be led away by any person. Second, the woman is seen as property. Marriage is seen as the house, which a stranger enters. The woman is much like the furniture in the house, which the stranger sits on, without the permission of the owner of the house, namely the husband.

Thus, only the owner’s right to enjoy his ‘furniture’ are disturbed by the act of the stranger. The woman, as per the law on adultery, has no corresponding right to sue another woman who has sexual intercourse with her husband. That is to say, if the owner of the ‘furniture’ in the wife’s house goes and sits on another man’s ‘furniture’, the ‘furniture’ at home has suffered no infringement of rights.

Over time, the law has reinforced patriarchal traditions and the perception of women as chattel in society. Only in the early 20th century did women gain the right to property ownership in the UK and US. In 2005, they gained full right to inheritance in India. Prior to this, they could not inherit paternal property. To that extent, all these laws were designed to keep women oppressed so that men could continue to hold power in society.

The law on adultery advertises a similar belief; that women cannot be trusted to make decisions. Thus, the burden to protect the institution of marriage is on the husband. The fact that adultery can only be committed by consenting persons is also not taken into account. Only the will of the man is criminalised. The law is based on the premise that woman could only be seduced into an adulterous act, she does not partake of it of her own volition.

This treatment of women as docile, silent objects to be kept in the house for ornamental value continues till date. Further, the adultery law propagates the notion that women are devoid of sexual urges and would not wish to step outside the bounds of marriage. This belief is strongly rooted in our psyche and becomes the basis of blame in cases of sexual assault.

After the Supreme Court recently struck down the law, it elicited mixed reactions. While the liberals in society welcomed the SC ruling on adultery, the conservatives expressed unhappiness about it, suggesting that the absence of the fear of imprisonment will encourage spouses to stray outside marital bonds. This seems to be a fragile argument to support the adultery law.

It is about time to understand that strong marriages are not, and cannot be, based on fear, but on trust. By having such a stringent law punishing adultery what the law did was to push people to come up with ingenious ways to evade detection. The SC, by striking down the provision, has reinstated constitutional values and signalled that morality cannot override law.

(The writer is Assistant Professor, School of Law, Christ Deemed to be University, Bengaluru)