SC asking if adultery is a crime for women reeks of fear of sexual freedom
In 2018, the Indian judiciary and legislature have discovered that the adultery law is structurally and offensively sexist. Late last year, the Supreme Court while admitting a petition to do away with the archaic law, claimed, with no sense of irony whatsoever, that the "time has come when the society (sic) must realise that a woman is equal to a man in every respect".
It is indeed time for the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC) to change when it comes to women. These structurally patriarchal documents, one colonial and the other postcolonial, but perfectly consistent in their sexism, are full of clauses that do not see women as equals.
Practically all laws see women only in relation to men: as their fathers, brothers, uncles, sons, guardians, mates. There is only one law that sees women as subjects in their own rights, and that is the sexual harassment law, a modern law. It is based on what the woman sees as objectionable to her own sense of self and the idea of a woman's consent on her own terms.
This throws into relief the fact that the entire edifice of law, like the edifice of society as a whole, is based on the perception of women as objects and not subjects. The fact that the adultery law has stayed so long in the books is nothing short of preposterous. Here is what it says:
"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 the offence of rape, is guilty of the offence of adultery and shall be punished."
It is clear here that the woman is merely an object over which men can negotiate. It means a woman cannot be an adulterer according to Indian laws. To make matters worse, 198 (2) of CrPC adds that only a husband, or someone the husband has appointed, can file the complaint. So, the woman simply does not matter. In another rhetorical question with no sense of irony, justice CY Chandrachud, asks: "By presuming the woman to be a victim, has the law made a patronising assumption"? The woman is not just a victim, she is merely property here.
Finally, as if all this was not absurd enough, it is not adultery if the husband has consented to the wife's "involvement" with another man. Once again, she is merely chattel and he can share her with his mates, if he so desires. The rhetorical questions, sans irony, keep coming. The learned justice asks: "Does this relegate her to the level of a commodity?"
The Supreme Court has now referred the matter to a Constitution bench. Several judgments on this law felt there was nothing wrong with it and it was actually protective of and pro-women.
Another amendment to an absurd gender law came in 2017. This was on the question of sex between a husband and a wife, who is less than 18. While the Protection of Children from Sexual Offences Against Children Act (POCSO) says any sexual intercourse with anyone below 18 is a crime, the anti-rape law provision in the IPC had set the age of consent for sexual intercourse at 15 within marriage. In October 2017, the Supreme Court said that sexual intercourse by a man with his wife, who is below 18 years of age, is rape. The judgment was seen as a great victory and the near-final knock to the marital rape exception and the institution of child marriage.
Yet a close reading of the judgment shows that the logic used for the verdict was within the framework of "saving marriage" rather than the autonomy of a woman. However, this was done on the grounds of protecting the "rights" of women.
The judgment spoke of the girl's "social standing" being of great interest to the state and the possibility of unwanted children being an economic burden on the nation as justifications for doing away with the exception.
But the real anxiety that almost spilled from the sentences is that of women's, particularly young women's, sexuality.
While both these developments - on adultery and on marital age of consent - might seem progressive, it would be premature to think of them in this way.
While the first concern highlights the egregiously sexist understanding of adultery, it leaves scope for an amendment to making women equally culpable in the crime.
Neither do the points, as some self-appointed radicals are opining, that it is important to decriminalise adultery altogether (seeing it as a civil law issue, only as grounds for divorce) address the important question. The real problem is that there is no fundamental exploration of the implications of treating women as subjects in this and other laws.
In the second case, there is a complete refusal to see the question of pre-marital sex and sex before the age of 18 years as realities, especially for women and girls.
In both cases, unless these explorations and examinations accompany the change in law, the changes will be merely cosmetic, piecemeal and ineffectual.
The silence of the law on males below the age of 18, the unmarried male, the non-heteronormative male and female above and below 18, and the structurally criminalised man in adultery cases only show the limited understanding of gender justice in Indian laws, legislature and society.