Sexual desire is notoriously cruel, and cruelty notoriously difficult to prove. It is in the closed theatre of marriage that the conjunction of these two truisms is played out frequently as tragedy, comedy or tragicomedy. And nothing brings out the elusive messiness of unhinged conjugality more sharply than does adultery — especially when its legal, moral and psychosexual implications and consequences have to be spelt out and dealt with publicly in a court of law. So, it should reassure most adults living in a modern democracy like India that, according to a recent Supreme Court ruling, merely being adulterous with another woman is not sufficient ground for a man to be deemed guilty of cruelty to his wife on the charge of failing to discharge his marital obligations, even when the wife had committed suicide eventually. The court recognizes, of course, that cruelty need not always be physical and therefore empirically provable; it could be invisible and difficult to pin down, but nevertheless real and culpable. Yet, in this case, merely having an affair with another woman, whatever the degree of mortification in the wife (born out of what the bench describes as “too much possessiveness”), cannot be punishable by law.
This is a welcome move away from both unwarranted moralism and too inclusive a definition of what constitutes mental cruelty in the realm of the private. The Indian Penal Code’s treatment of adultery in Section 497 is a peculiar mid-19th-century muddle of an apparent bias against men that is, at the same time, fundamentally unfair to women. A woman cannot be charged with adultery even if she had been involved in an extramarital affair; only her lover is adulterous under the IPC. Yet, a woman cannot file a case of adultery against her husband under Section 497, even if he is having an affair with a married woman. This is a penal code that protects not so much the moral ‘sanctity’ of marriage as it does the notion of a woman being her husband’s property, against which the male adulterer trespasses. It is, therefore, right that this pre-modern and unequal way of regarding human relationships be treated as unacceptably archaic by the court. The unruliness of human sexuality is often difficult to legislate, judge and punish. Sometimes, the law has to accommodate what poets find easier to articulate — that cruelty has a human heart, and jealousy a human face.