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6-min read

OPINION | Beyond Adultery: Reimagining Marriage And Criminality

Criminalising consensual sexual relations is not the only provision that makes the law archaic: It allows only a man to prosecute another man for the act of committing adultery with his wife.

Ifrah Jan |

Updated:September 27, 2018, 8:34 AM IST
OPINION | Beyond Adultery: Reimagining Marriage And Criminality
Picture for representation only.

As the Supreme Court is all set to pronounce its judgment on the 158-year-old law on adultery, which has opened a Pandora’s legal box on sexual autonomy within marriage, one is forced to ponder over the all-pervading moral aura of marriage that is such that, until this day, the religiosity of its ‘sacred nature’ lingers even in the highest court. “What about the sanctity of marriage?” we hear.

Criminalising consensual sexual relations is not the only provision that makes the law archaic: It allows only a man to prosecute another man for the act of committing adultery with his wife. Punishment can range up to 5 years of imprisonment, fine or both. Men’s rights groups have hailed the decision of the Supreme court to reconsider the law, since they believe the provision of ‘only’ men getting jailed is discriminatory and violates Article 14 of the Constitution, but a cursory look at the Article tells a different story.

In effect, the law makes a man the decision-maker whether another man gets access to his wife’s body. As Justice Malhotra rightly pointed out that it allows men to treat their wives as chattel. It rests on an assumption that men have a certain claim over ‘their’ women by virtue of being married to them. It is blatantly not just anti-women, but also prejudices the notion of autonomy that a married woman has over her own body.

This is precisely what lies at the heart of marital rape debate in India, and the abortion debates around the world. The idea that adultery as an offence should be gender neutral where both men and women should be held responsible for the independent choices they make for themselves may appear perfectly reasonable, the question is should adultery be a crime at all?

While hearing the argument to decriminalise adultery, the Chief Justice remarked that scraping the law in its entirety may affect the sanctity of the marriage. It is remarkable to hear our esteemed Supreme Court justices talk about the sanctity of marriage, when the court itself that has had to push in reforms to protect married women from the abuse they have suffered as a part of getting into this sanctified contract!

From domestic violence legislation debate to dowry debates in Parliament, reform groups in India have had to fight not only for the protection of spouses in an environment that’s almost perfected for prolonged psychological, physical and emotional abuse, but also the semi-religious idea of the divine nature of marriage. It is to fix the abuses and suffering endured under this ‘divine contract’ that extensive laws have had to be made, including Domestic Violence Act 2005, Dowry Prohibition Act, 1961, and Prohibition of Child Marriage Act, 1961.

Every morning our newspapers are full of horrible stories like “man suffocates his Wife to death by pushing adhesive glue in her mouth” (The Hindu, August 5), and “Man throws three kids in the water after a tiff with wife” (The News Minute, August 6). All these statistics add up to the National Family Health Survey Report of 2005, where it estimates that every 1 in 3 women will face Domestic Violence in her life.

Patrilocality, where women move into their husbands homes makes them physically and emotionally vulnerable. On the other hand, men facing prolonged psychological, emotional and financial abuse by women is also a reality. Yet, with all the statistics in hand and stories all around, we cannot get over the social brainwashing about the ‘sanctity of marriage’.

My case here is not to abolish the institution of marriage. Most women and men get married by their own consent and wish, and most remain married throughout their lives. Moreover, for a person who believes in the divine nature of marriage, the right of marriage comes from the Constitution itself, where all are allowed to practice their faith without any prejudice.

However, it is vitally important that our Supreme Court and Parliament do not force the ‘divinity’ of marriage on people who do not see the sanction of divine, when they seek the protection of their courts for the sake of their physical and emotional security, their personal freedom, and their autonomy over their own selves even while being married.

A person does not hand over his or her absolute rights over his or her self and his or her own body to anyone else at any time over the course of their lives, even while being married. That is the essential idea of the inviolable sovereignty of the individual. This is why marital rape should be a crime. And this is why “sanctity of marriage” must not be applied to rob married persons of their rights over themselves, and subject them to years of abuse and misery at the hands of the spouse whose treatment of them is neither divine nor sanctioned by the Supreme Court.

In any case, it is essential for our law makers to clearly define what constitute the rules and laws of marriage, and allow people to decide for themselves the conditions of the contract of marriage, and decide for themselves when the contract is voided. Adultery could very well be one of them, as could prolonged refusal of conjugal rights by a partner. In any case where a person cannot bear their partner committing adultery, it is a very valid and recognised ground for divorce under Indian laws, and it should remain so.

While a person can divorce their partner for indulging in extra-marital sex, it is vital for our judiciary to not frown upon the practice of divorce itself. A non-Muslim divorce in India can take years, until the judges are finally convinced that a case for it exists, all the while an abusive person continues to keep his or her spouse hostage to archaic laws, and the abuse and suffering continues.

It is time for India to seriously reconsider the practice of one sided divorce, and make divorce less complicated and more free. While adultery is being debated, India needs to wake up to the fact the legal band-aids of legislation addressing martial rape, domestic violence, cruelty to partner, cannot make restore the divine sanction to a marriage that is defined by cruelty, violence, abuse, bitterness and suffering.

It is also essential for the judiciary to recognise that a “divinely sanctioned” contract which needs unending legislation to keep one partner from abusing the other, is perhaps not all that divine. It is time to make termination of this contract much easier. It’s time for our courts to start protecting citizens who petition for the end of failed marriages. It’s time for the courts to stop acting as the constitutionally appointed guarantors of socio-religious tyranny and taboos regarding divorce.

As to the matter of a person committing adultery, divorce is very much a recourse for a partner who has been a victim of being cheated on, it is far from clear what the justification is for the state judging breach of the marriage contract as a criminal offence. Religious laws rarely differentiate between civil and criminal offences since indulging in unholy practices is considered a serious violation of religious doctrine. However, Indian law, which derives its essence from a secular, liberal Constitution should make the distinction between the two clear. It is time for the Indian judiciary to redefine the contours of ‘criminality’ and what does and does not constitute being a criminal. The challenge to the adultery law has opened a Pandora’s box and all we can do is to keep an eye on how far and how many boundaries will the Supreme Court of India push.

(Ifrah Jan is a Delhi-based Kashmiri writer. The views expressed are personal.)

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