It is clearly the season for big decisions and the outgoing Chief Justice of India Dipak Misra appears anxious to leave his mark on history before his departure from the national scene (he retires on 2nd October 2018). After the huge judgement decriminalising homosexuality and scrapping Section 377 of the IPC, there was another huge judgement relating to Aadhaar. Another important judgement was the striking down of the old adultery law. While some have hailed this as progressive, others feel that this impinges on the sanctity of marriage.
In the screen grab of the text of India’s adultery law, I have highlighted the most offensive bit: “without the consent or connivance of that man”. In other words if a woman's husband gives her ‘permission’ to have sex with another man, this would be OK, otherwise, the man has the option of filing a criminal complaint against the man who committed adultery with his wife. Also noteworthy is the fact that only the husband who has recourse to criminal proceedings if his wife is in an adulterous relationship. If he himself chooses to be in an adulterous relationship with anyone, man or woman, the wife has no such recourse.
The petitioners had asked for the law to be made gender neutral; asking that the court amend the law to give the wife recourse to criminal proceedings if her husband commits adultery. However, the court rightly decided that the law is archaic; that consensual sex between two adults cannot be something that law enforcement agencies can or should regulate or punish. The court also observed that the law treats women as chattel or property of their husband and as such was arbitrary violative of a woman's sexual freedom.
While the Chief Justice opined that adultery cannot be a criminal offence, Justice Chandrachud opined that the law was opposed to sexual autonomy of women. Justice Rohinton Nariman rubbished the notion of the man as seducer and woman as victim.
A number of people, including the petitioners have expressed disappointment at the SC verdict. Critics feel that the judgement gives married couples licence to have intimate relationships outside their marriage.
There are those who feel that not having an adultery law weakens the institution of marriage and the edifice of the family. It will lead to more divorces feel some men's rights activists. There is also the view expressed that the present judgement “endorses adultery”
Detractors have been outraging over the judgement as something that will encourage infidelity and endanger families. However, it is important to understand the distinction between criminal and civil proceedings. This law was under the Indian Penal Code which concerns itself with punishment for criminal activity. The judgement simply takes adultery outside the preview of criminal law. An aggrieved man or woman can still proceed against the spouse or adulterer in a civil court; adultery remains grounds for divorce which the court would have to take cognizance of in a divorce proceedings.
This commentator feels that a marriage is already in trouble when one of two people in a marriage cheats. If one needs the fear of the law to keep a spouse in line, that is not a healthy relationship in the first place. So really, all of those who are expressing outrage at the striking down of the law are offended by what they see as a permissive judgement; one that goes against their personal sense of morality.
Now that the SC has given such progressive judgements on so many sensitive issues, surely the issue of marital rape should be next? As of now, the Indian criminal justice system does not recognise nonconsensual intercourse between spouses as rape. Under our jurisprudence, by virtue of agreeing to marry a man, a woman is presumed to have given her consent to having intercourse with her husband for all time to come. This consent is presumed to be valid and continuing, so it is presumed that all intercourse between married couples is consensual by definition. For India to join the real world and the 21st century, recognition of marital rape must certainly be the next in line.
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