ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Is Adultery against the Common Good?

The state is endorsing patriarchal notions in the name of the common good.

The question of women’s rights within marriage has been tossed up in a hearing before the Supreme Court on the constitutional validity of Section 497 of the Indian Penal Code (IPC) that contains provisions for the adultery law. The apex court has asked the central government a normative question: What is the collective good in making adultery a punishable offence? The latter has given a justification that can only be termed regressive. It has defended Section 497 because it “supports, safeguards and protects the institution of marriage.” Striking it down will be detrimental to the “intrinsic Indian ethos which give paramount importance to the institution and sanctity of marriage,” it believes.

Section 497 of the IPC says that any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery. However, it does not permit women to prosecute an adulterous husband or the woman with whom the husband has indulged in sexual intercourse. The adulterous woman’s husband, thus, alone has the right to prosecute the “adulterer.”

There have been petitions earlier asking why only men can be punished while the woman is not. It is wrong to assume that Section 497 does not sanction prosecuting the woman because it is believed that she has a right to exercise her sexual freedom. The earlier court rulings make it obvious that the women involved in adultery are not being prosecuted because the patriarchal mindset assumes that the woman has neither will nor agency of her own. She is a victim to the man’s “seduction” and is buffeted by social vulnerability.

By arguing before the Court that the section upholds the sanctity of marriage and, thus, Indian ethos while answering the question of the common good, the state is assuming that it knows what is good for everyone. Feminists have questioned this stance and objected to the state thus deciding what is good for women on their behalf. It is crystal clear then that the law is definitely not protective of women as is being made out to be by those who accuse it of favouring women unjustly.

Ironically, the earlier court rulings as well as the state both refuse women any agency to determine their self-expression within the institutions of family and marriage. This attitude of the state has been time and again critiqued by those who hold that it only adds to the predicament of women within these institutions.

What needs to be questioned is the state’s notion of the collective good and whether it involves protecting patriarchal notions about a woman’s sexuality. As the debate over Section 497 in general and the content of the hearings in the apex court show, the adultery law in India is enmeshed with issues of privacy, gender discrimination, assumptions of morality, and the motivated stakes that both state and society have in the institution of marriage itself. Section 497 also supports the belief that while a woman is expected to be faithful in the marriage, the husband can philander so long as it is not with the “wife of another man.” Similarly, her having sex with another man is not adultery if her husband has given consent to the act. Obviously, it is assumed that he has a right to her body and to determine who shall use it sexually.

Within the very personal and intimate relationship of marriage, how each party conducts itself is a matter of concern for the couple, but the Indian state believes that the concept of and right to privacy does not encompass this aspect. The crux of the issue is thus whether the dynamics within an intimate relationship like marriage and sexual relations between two consenting adults is a matter for legal bickering.

The law can be resorted to in order to oversee the dissolution of the marriage legally and ensure that neither side suffers discrimination in the process. The pivotal concern here is not whether the expectations of fidelity in a marriage are right or wrong, or whether adultery denotes sexual freedom. It is whether the state can and should monitor a relationship between adults that is too complex, sensitive and individual for it to be capable of doing so in a just manner.

Updated On : 28th Aug, 2018

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