The Supreme Court seems to be on a course to correct outmoded or misogynistic societal laws. A few weeks ago, the court had dealt with the question whether Parsi women lose their religious identity if they marry men from outside the fold. And last week, the court has asked the government to explain its stand on a bunch of petitions challenging the Macaulaian law on adultery.
The law in its current shape is patriarchal as it implies that women, like property, are incapable of rational thought. Besides being gender discriminatory in nature, it criminalises the offence which reflects a centuries-old mindset instead of the mores of today's modern society.
India has a 157-year-old law criminalising adultery – only Taiwan and the Philippines have that in Asia. As it is, the law identifies the husband alone as the aggrieved party. Only he can complain, not against his wife, but against any man with whom she has an adulterous relationship, and that, too, without the husband's consent.
A Bench headed by Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud asked why a married woman, who is equally liable for committing adultery with another married man, is not punished along with the man.
According to the IPC (Section 497), a man can be punished with up to five years in jail or a penalty or both if he has sexual intercourse with the wife of another person. However, the wife shall not be punishable as an abettor of the crime.
Indian law reflects the general cultural attitude towards women. She ‘belongs' to one man by marriage, and if she has a relationship with another, the second man is seen as the violator of the first man's property rights. But if the husband allows the adulterous relationship to go forward, the wife has no problem. That, too, because she is his property.
Pertinently, the law does not allow the woman to bring a complaint of adultery against her husband. Supreme Court is now questioning the inequality of the sexes underlying the law.
But beyond these technicalities lies a fundamental question. Why should adultery be a crime? A consensual relationship between two adults is a private matter between them, or between husband and wife. Questions of ethics, breach of faith, hurt or morals have to be played out in a private arena. If privacy is to be a fundamental right, then extramarital relationships are not the law's business. Allowing adultery to remain on the list of crimes would seem to be anachronistic. There are real crimes that would demand the law-makers and law-enforcers attention.
