Should India amend its adultery law? Should adultery be considered a crime at all?

This story is triggered by a news article in TOI Bombay which reported the Bombay HC as confirming that adultery is still a criminal offence under Section 497 of the Indian Penal Code. The HC considers that the law per se is not against the Constitution and hence it cannot annul the law. It’s for our law makers to decide whether the law needs to be changed. Now I know that adultery is a terrible scar in married life.....but the question here is whether it should be treated as a criminal offence. In fact, should be treated as a crime at all? And also importantly, isn’t the law sexist and anti-women by its very design and hence shouldn’t it be modified or deleted?

I did some research to validate certain beliefs that I have on this subject. In my view, there is no way that adultery can be considered a crime. These laws of adultery were framed at a time when society was still a lot more puritanical. In the 18^th century, it was probably understandable why this law was first enacted. But to think that the law still has validity is wrong. While even the basic concept of adultery itself is unacceptable, the implications of this law on a woman’s right to equality and independence are huge. Let me explain this. Adultery is defined as the sexual relations of a married woman with any other man. The other man may or may not be married himself. In adultery, it is the “other man” who is punished. Depending on which country you live in, the punishment could be five years in prison (India) or as high as death (most muslim countries). It must be noted that the woman is not punished. Nor is she held guilty. That’s why men across the world complain that the law is gender-discriminatory.

But what irks women’s organizations around the world (including the National Commission of Women in India) is that the woman is treated as the “property” of her husband......and hence the “other man” has conceptually “stolen” the husband’s property. The woman herself is not expected to have any views of her own in this matter. It’s really an issue that involves the husband and the other man. Further, the woman herself is considered to be “a thing” that can be owned by someone (the husband). In fact, in India, the wording of the law makes the matter even more pathetic. The Indian law defines adultery as sex between a man and a woman without the permission of the husband. What????!

It is not surprising that most civilized countries in the world (read: Europe) has stopped calling adultery a crime. In fact, there was an uproar in the EU when Turkey was considering (in 2004) re-making adultery a criminal offence.....under pressure from the Islamic elements in its society. The EU made it a pre-condition for talks for including Turkey in the EU that Turkey abandons all such plans. In the US however.....and let’s not forget that large parts of the US still remain puritanical......there are about two dozen states where adultery has not yet been decriminalized, though adultery charges are hardly ever filed. In some states like Maryland, adultery elicits a penalty of $10! In the US military, adultery is an acceptable ground for a court martial. In some states like Michigan, adultery can get an accused person a life sentence. Interestingly, the modern states of NY and California do not consider adultery to be a crime. Adultery is largely considered a crime in the Islamic world where ancient religious and social mores still dictate and dominate laws. In some Islamic countries.....like Jordan.....the husband is pardoned even if he kills the other man if he finds him have sex with his wife. In Saudi Arabia, even “stoning to death” is permitted for adultery. We have seen many similar cases in neighboring Pakistan where a wave of Talibanization is sweeping the country. Apart from the Islamic world, I found it’s only in North and South Korea and Taiwan that adultery is considered a crime. Even China.....usually very orthodox in its laws.....has decriminalized adultery.

Given its wide prevalence in society, should adultery not be abolished around the world? In the western world, reports vary on the prevalence of adultery. Some reports suggest that as much as one third of the population engages in adultery. It’s interesting that in all studies, the % of men committing adultery is always found higher than the % of women. What does this mean? That once a woman commits adultery, she become a “serial” committer of adultery?! Hmmm.....now that’s surely bound to raise the hackles of women!

I think its time India took a more modern view of itself. As one of the fastest growing countries in the world, it is incumbent upon India to modernize its age-old laws to keep them in line with modern and progressive thoughts. India needs to align with Europe, rather than with the Islamic countries when it comes to social mores and laws that govern them. But really, is the population if India liberal enough for this? I doubt it. The Sangh Parivar – the moral policemen of this country – are bound to oppose any move to delete this adultery provision. We have seen repeatedly that extremist Hindus (and of course the extremist Muslims as well) in India have repeatedly tried to keep India back in the dark ages. It’s very unlikely that they will support the deletion of adultery as a crime at all.

That’s why I often say that public opinion cannot be the basis for making laws in a modern country like ours. Let’s say if 75% of the population supports adultery laws, does it mean that we must “listen” to our people and let the laws stay? Or should our leaders go against the will of the people and decriminalize it? Knowing the fear that politicians have of doing anything that seemingly goes against the views of their people, I doubt if they will ever act on their own. The only way societal value systems can change is if media takes up the cause. Media can explain....media can silently cajole....media can help people embrace liberal views. This is an extremely important role that media plays in any country. Once media builds enough favorable public opinion, politicians can propose a more liberal law. Is media in India ready to play this role? It has in the past....but suddenly, I am not so sure about the future.

The real truth is that India is yet not ready to become a truly modern nation. There is a huge dichotomy within India. There is this very large orthodox population that still considers old fashioned laws a requirement to maintain the morality in the society. Large sections that dread and intensely dislike the changes overcoming society as a result of India’s global embrace. They would like India to remain puritanical.....misunderstanding and intentionally misrepresenting the traditions to the people at large.....that Indian “culture” doesn’t permit liberal thoughts. But I think society is changing. And changing fast. I think there is a sizeable section of the society that wants India to get out of its dark past and move ahead into the world of more liberal nations.....it’s probably not a majority today, but its only a matter of time before it becomes one......