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Starting on the 10th of July, the hearings on four important constitutional cases shall begin in the Supreme Court of India. Joseph Shine v. Union of India, one of the four cases, pertains to the constitutional validity of the Adultery Law in India. In this context, it becomes pertinent to revisit the Adultery Law in India and the judicial and legislative engagement with it in order to understand the past anxieties of the Court for a better understanding of what we are looking at in the days to come.

Adultery, in plain terms,refers to the extra-marital voluntary sexual intercourse in the society. It is recognized as a criminal offence in some nations, a civil wrong in some nations and in some nations it is not recognized as an offence at all. The punishment for adultery as a criminal offence ranges from a mere fine to even capital punishment around the globe. It is noteworthy that in a few nations the punishment for adultery can go up to public whipping or even stoning. As a civil wrong, the most sought after remedy is a decree of divorce.

In India, however, Adultery features in both the criminal law as well as the civil law. The current constitutional challenge pertains to the decriminalization of this act enshrined in Section 497 of the Indian Penal Code, which mandates a maximum punishment of 5 years in prison.

The section of Adultery remarkably punishes only the man who has had consensual sexual intercourse with a married woman, but not the married woman herself or an unmarried woman/divorcee/widow who has had consensual sexual intercourse with a married man. The underlying reasons are anything but feminist and are deeply patriarchal, parochial and paternalistic.

The first known case to have highlighted this problem was Yusuf Aziz v. The State of Bombay ( 1951), wherein a petition was laid down before the Court that the section governing adultery was in contravention with Articles 14 and 15 ( Equality clauses) of the Constitution of India. It was argued that by punishing only a man under the section of adultery, the law is discriminating the citizens based on ‘sex’ as per Article 15 of the Constitution and that the fundamental right to equality is being violated as per Article 14. It was also stated that by not puttingthewoman in an equally culpable position as a man, a license of sorts is being given to them to commit and abet crime.

The Court held that by no means is a license given for women to neither commit nor abet a crime but the said section under purview exempts women from any form of culpability as per Article 15 (3) of the Constitution of India which reads that nothing in Article 15 shall prevent the State from making “special provisions” for women. By declaring Section 497 as a special provision for women, the Court had thrown this debate into a further vortex of controversy. The court in its brief judgment had not delved in to explain as to how this section would serve as a special provision for women, and had given further scope for questions of discrimination in this ambit.

InSowmithri Vishnu v Union of India(1958), the Court had reiterated the ratio held in Yusuf Aziz that women cannot be held as adulterous, but this time, the Court had gone one step further from Yusuf Azizto claim that women cannot be brought under the purview of this section as ‘it is commonly accepted that it is the man who is the seducer, and not the woman.’It is also propounded by this Court that in cases of Adultery, the woman is merely the victim of the crime and not the author.Along the same lines, it is also stated that women cannot be punished as they are vulnerable and stated that this vulnerability is owed due to the deprivation of love and affection they faced from their husbands, who had a social sanction to be adulterous, which in turn made the wives vulnerable and an easy target to be seduced.

In the next significant case, V Revathy v. Union of India(1988), the Court had interpreted the reasoning behind this section to not include women under its ambit because it promotes ‘social good in the society’ as law gives the couple a chance to ‘make up’ and condone the offence and thereby not bringing each other to court. It is also opined by the Court that adultery needs to be seen as a shield rather than a sword.

The 42nd Law Commission of India Report (1971) and the Malimath Committee on Criminal Law Reforms (2003) suggested that the section be amended to the effect that both the erring wife and the paramour be equally held liable for adultery. However, no modification or amendment has been made on this effect till date, which is a pressing concern.

Section 497 not only excludes married woman who have been adulterous but also excludes an unmarried woman, a divorcee or a widow who has had sexual intercourse with a married man. Going by the archaic logic of the provision and the interpretations accorded thereof, it is pertinent to note that this provision which punishes the paramour of the adulterous wife as the ‘outsider’ that has caused a blow to the matrimonial home, does not recognize an unmarried woman, a divorcee or a widow as an ‘outsider’ in a similar sense.

In SowmithriVisnu, the Court had held that to ask unmarried women to be brought under the ambit of this section, is a crusade by a woman against a woman. The question that when a paramour of the erring wife can be seen as adulterous, because of the infringement on the sanctity of the matrimonial home, why a similar reasoning cannot be extended to an unmarried woman whowrecks the sanctity of the matrimonial home; remains unanswered by the Court. This conspicuous silence splits bare the fissure and inherent weakness of the disharmony theory.

Another complexity that arises with regard to Adultery law is who can raise a complaint with regard to Adultery. According to Section 198 (1) of the Code of Criminal Procedure only the only the “aggrieved party” bring forth a complaint on cases of Adultery. Section 198 (2) clarifies that only the husband of the erring wife is the “aggrieved party” for purposes of Section 198 (1).

This discrepancy had also been brought before The Court in Sowmithri Vishnuwherein the Court opined that women need not be included as an aggrieved party as a form of even-handed justice. It is the view of The Court that just like men are not allowed to prosecute their wives in order to protect the sanctity of the matrimonial house; women are not allowed to prosecute their husband thereby meting out a form of even handed justice. By terming only the husband as an ‘aggrieved party’ and by stating that ‘breaking a matrimonial home is not a less serious a crime than breaking open a house’, the Court has given the husband a right to the chastity of his wife, thereby if such chastity is broken, he becomes aggrieved.

On the question raised by Nalini Chidambaram before The Court, that by not including women under the ambit of Section 198(2) of the Code of Criminal Procedure, the law plays the role of a ‘Romantic Paternalist’, the Court simply claims that this argument has an emotive appeal but no legal basis.

The Indian Penal Code is recognized as the principle penal law in India. The first draft of the Indian Penal Code did not consist a provision for adultery and Lord Macaulay noted that considering the vast cultural diversity in India clubbed with the progressive nature of social sanctioning, there is no need for a section on Adultery in the Indian Penal Code and it is better off when it is treated as a civil injury. A revolting logic that is widespread in most justifications of the Court, as aforementioned, isthat only the man can be seen as capable of seduction and having an active sexual intention. This begs the question whether the Court, de facto, does not recognize the sexuality and sexual activity of a woman. On a close analysis of this bunch of cases, and the reasoning it entails, it is manifestly clear that the notion to exclude women from the culpability of Adultery stems not from a feminist position but a rather bizarre patriarchal and parochial position which delegitimizes the sexuality of women by a careful erasure of it. It is not untrue that women were at a sexual disadvantage and vulnerable and depraved of love and affection at some point of time in Indian history, given the skewed acceptable behavioural patterns- something which arguably exists widely even today in many contexts. But instead of looking at the institution of marriage, itself, as a violent space that percolates inequality, the Court and the Law attempt to repress the obvious fissures that would arise as a form of resentment to these inequalities. Ultimately, the law’s emphasis on criminalizing Adultery, and the Court’s desperate attempt to justify it, albeit such stark inequalities, comes from the drive to maintain a clean chit to the institution of marriage and not directly engage with the structural flaws that it necessarily entails. Of course, it might be far-fetched to expect the technocratic Court to engage with these questions, but it does behove the interested reader to read in what is deliberately left unsaid. Questions that must necessarily be asked are why is it a pattern for women to feel vulnerable and disadvantaged in marriages? Are these only exceptional scenarios or has it gained a normative social nod? Why have the Indian Courts not engaged with this question directly even when they go close to accepting this with regard to Adultery? By giving unbalanced, unequal positions with regard to Adultery, is the Court, and by extension the law, trying to actively repress the fissures emanating from marriage? Can the Court reconcile these inequalities without engaging with the aforementioned questions? Will that lead to further repression of the fissures?

It is in this context that the upcoming hearings will be interesting to enquire whether there is a normative shift in the pattern of the Court’s engagement with these questions, whatever the constitutional validity of Section 497 is held as. It is in this context as well that the reader must not just look at what it being said, but also look at everything that is left unsaid, for that reveals the anxieties of the Court, and of the law.

Sabarish Suresh is a Masters Student of Legal Philosophy at the Benjamin N Cardozo School of Law, New York.

 

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