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(This story is being republished from The Quint’s archive. It was first published on June 06, 2018)
Did you know the Indian adultery law is gender discriminatory? Adultery is consensual sex between a married person and a person who is not their spouse.
Let’s call this situation 'Main, Meri Patni aur Woh'. In such a scenario, Indian Penal Code’s Section 497, has laid down punishments for the Adulterer, the Seducer, the Vyabhichari.
According to the law, whoever has sexual intercourse with a person who is 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. In such case the wife shall not be punishable as an abettor.
Let's break it down.
- Only sex with a married woman is punishable under this law.
- If the husband gives his consent to the act, it is no problem at all.
- The law does not allow a woman to prosecute her adulterous husband. Or the woman he had sex with.
- The wife is NOT punished as an abettor.
Is it just me or is there something seriously wrong with this law? This law is trying to protect the rights of the husband by clearly establishing that someone's wife is out of bounds. Because she is her husband's property.
But how did such a lopsided patriarchal law end up in the Constitution?
In India, when we talk of sex, the first thing that comes to mind is Kamasutra. But just because we gave the world this giant book and temples with nude sculptures, it doesn’t make us sexually liberal.
We were a complex society with caste laws, different religions and several rulers.
And centuries before Kamasutra, we had Manusmriti – a code of conduct put together by Brahmins, mainly for Brahmins.
In her book, Indian Instincts: Essays on Freedom and Equality in India, author Miniya Chatterji has explained how Kamasutra and Manusmriti expressed opposite views.
She writes, “Manu saw sex as a strictly procreative, monogamous activity, as opposed to the pleasure-giving experience Vatsyayana wrote about. The Kamasutra emphasises that a woman who is not pleasured might hate her man and leave him for another”.
Vatsyayana saw adultery as a means of providing pleasure, while Manu worried about the violation of the caste system should a woman bear a child with an unknown man of the wrong caste.Miniya Chatterji
Let’s leave that era and come to the 19th Century. Of all the diverse phases and texts in India’s sexual history, what did our British rulers like. Manusmriti!
These men, who were heavily influenced by the regressive ideas of Victorian era, saw a woman as a piece of furniture, like a couch with no voice. She couldn't shape policies, she could be moved, discarded or demolished, and if she broke under the load, kar do replace.
And you know what? There actually existed a legal contract by which women gave away the ownership of their bodies and property to their husbands.
It’s called MARRIAGE!
Victorian men swiped right the values of Manusmriti and their match gave us the Indian adultery law.
After our colonisers left, we scrapped over 1200 archaic laws! But we still continue to follow some, like Section 377 – another law that loves entering our bedrooms.
So, a law that treats women as property condemns only one kind of adultery, only punishes men and is plain and simple gender-biased. Why should such a law continue to exist? Should adultery be a crime at all?
Today, only 20 countries in the world criminalise adultery, and a majority of them are governed by the Islamic law. Our colonisers too have decriminalised adultery.
Currently, a PIL is challenging Section 497 of the IPC in the Supreme Court, to make it a gender-neutral offence. However, we say, let’s be adults about adultery and scrap this law. We cannot deny two consenting adults the opportunity to exercise their free will.
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