Criminalising adultery reflects our hypocrisy over sex
The Supreme Court has struck the right cord by asking why at all adultery should be considered a crime.
The dictionary definition of adultery calls it "sex between a married person and somebody who is not their husband or wife". Various countries, including the US, made adultery a punishable offence because we inherently have not been able to accept sex as a normal part of life detached from moral moorings.
What shape and form two consenting adults want to give to their relationship is a completely private matter. Criminal codes should not be attached to civil matters. How a husband and wife want to deal with cheating is absolutely their prerogative and that is precisely the reason why adultery is considered a valid ground for divorce.
Many married couples are also known to 'forgive and forget' instances of 'sex outside marriage'. Many 'open marriages' encourage it. Should the state still go after them because, in the eyes of the law, the party that cheated is an offender?
In India, however, that offender, which the state pursues, is only the man because women can't be criminally charged for adultery. But if a man wants to divorce his wife since she cheated on him, he can go ahead and do it.
The Supreme Court's observation came while hearing a petition filed by an NRI, Joseph Shine, who challenged Section 497 of the IPC. Shine termed the section "unjust, illegal and arbitrary and violative of citizens' fundamental rights". Shine has also alleged that the provision drafted by Lord Macaulay in 1860 has an inherent gender bias, in favour of women.
The court is in the process of hearing a slew of pleas filed against Section 497, which states: "Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be 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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor."
Shine, and many like him, miss the point that the provision drafted by Macaulay only exempts women from punishment, but doesn't consider them individuals who can exercise control over their bodies or, for that matter, the bodies of their husbands.
It's such a 'man to man' law that it won't be unfair to call the provision anti-women.
Consider this: A can have sex with the wife of B with the consent of B. But the consent of the wife of A doesn't factor in.
A can also have intercourse with a sex worker, widow or unmarried woman. The will of his wife is not required in any of the cases.
It might actually shock a lot of people to know that women also have a 'will' of their own. But that is not the point here.
Those talking about adultery themselves seem to have skipped the process of adulting. Sex between two individuals is not always about love. It is so often about a physical need, which biology tells us, must be taken care of. Those having sex outside marriage may not actually be cheating on their partners because they may not really be in love with the person they are hooking up with.
But India is not the only country where adultery is a criminal offence.
What other countries are doing
In 22 American states, including New York, adultery is a misdemeanour. But in others — Massachusetts, Idaho, Michigan, Oklahoma, and Wisconsin — it is a felony, though rarely prosecuted. Also, it is prosecuted as a criminal offence rather arbitrarily. However, more common than criminal proceedings are job losses.
In Pakistan, adultery is a crime under the Hudood ordinance, which was enacted in 1977. The ordinance sets a maximum penalty of death, although only imprisonment and corporal punishment have ever actually been imposed.
In Afghanistan, a woman can be lashed or stoned for indulging in adultery.
Man lashes woman reportedly for adultery
In Philippines, adultery can lead to incarceration.
The morality argument
How physicality works between two people is such a private matter that the state has no business getting into it. There are people who, due to more reasons than one, can become incapable of performing sex. Their partners might still be in love with them, but they may venture out for their physical needs. And this is just one example. There could be numerous other reasons.
Whether the wife or a husband has a problem with the other person's venturing out is best left to the two individuals to decide.
We have seen enough liberties being jeopardised on moral grounds. Morality is a subjective matter. It means different things to different people. It cannot be sufficient ground for legal arguments — it can only be an add on.
Two people in love — married or not — know how to take care of each other's feelings, needs and desires.
We should only decide for ourselves and stop poking our noses into other peoples' private lives.
Let's behave like adults.