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Do you covet your neighbour’s wife? Or — let’s be politically correct here — if you are a woman, do you lust after another woman’s husband? Well, don’t tear yourself apart wondering whether you should or shouldn’t. Sinning may soon be easier — if not on your conscience, at least in the eyes of the law.
Last week, the draft National Policy on Criminal Justice (NPCJ) recommended that adultery — at present a criminal offence punishable with up to five years’ imprisonment — be changed into a social offence. (It also proposed to decriminalise homosexuality, but that’s another story.) In other words, a person accused of adultery would be prosecuted under a civil law and could get off with a much lighter punishment.
The liberals cheered. It was ridiculous, they said, to hang on to a law that criminalises adultery when the phenomenon is so widespread in society, when people recognise and accept the fact that men and women may have relationships outside marriage. Some do it on the sly, some live it out loud. Some move on, some continue with the charade of a joyless marriage even as they cheat on their spouse. But to haul them off to jail for that? “That’s bizarre,” says Geetika Sharma, who works in a BPO in Bangalore. “If adultery is a criminal offence most of my colleagues should be in jail. I know of so many casual affairs. More often than not, the spouses don’t even come to know about them.”
Actually, the present law on adultery is a lot more bizarre than Geetika thinks. Section 497 of the Indian Penal Code 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 to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment for a term which may extend to five years... In such case the wife shall not be punishable as an abettor.”
Cut the legalese and what this really means is that a man is liable to be accused of adultery only if he has dared to have sex with a married woman. In other words, if he is a serial adulteror who specialises in making out with single women, Section 497 can’t touch him. “Hence, adultery as a criminal offence hinges on the supposition that a man’s rights over his wife have been violated by another man,” says Joymalya Bagchi, advocate, Calcutta High Court. The wronged husband can accuse his wife’s lover of adultery. But a wronged wife has no such redress available to her.
The sexism works in another, more subtle, way. By stipulating that an adulterous wife cannot be held guilty of the crime, the law seems to suggest that women are helpless creatures, ever the reluctant victims of male lust, and that they possess neither the spirit nor the will to take the lead in an extra-marital affair. Now how true an assessment of the modern Indian woman is that?
“The law on adultery is anomalous in the extreme,” admits Bagchi. “Ideally, it should be equally applicable to both spouses or not at all.”
Clearly, the draft NPCJ seeks to do away with some of that anomaly in the law. Says Malini Bhattacharya, member, National Commission for Women, a body whose recommendations on revising the law have been largely accepted by the NPCJ, “The present law is based on the idea that the wife is the property of the husband. Besides, in no civil society can a relationship between two consenting adults be considered a criminal offence. Marriage is based on trust, and a relationship outside marriage is a breach of that trust. Which is why we recommended that adultery be regarded as a civil wrong.” Bhattacharya suggests that one can always invoke other laws such as the Domestic Violence Act to protect a woman if she is being abused by her adulterous husband.
Indeed, in most developed societies adultery is only a ground for divorce and has long ceased to be a criminal offence. The UK decriminalised adultery way back in the 1950s, and in some states in the US it is held as a minor offence punishable with a minor fine.
In that context, many people agree that the latest proposal is a step on the right direction. Saloni Sehgal, a 20-year-old Calcutta student who confesses to having “ditched” her boyfriend recently in favour of a guy who is “way more cool”, can’t see what the fuss is about. Dressed in low-rise jeans, a cropped top and sporting a mass of streaked pale brown hair, Saloni is very with it, very Generation Now. “When I do get married, I definitely want it to stay in the relationship forever. But an extra-marital affair can always happen,” she shrugs. “What’s the big deal?”
Most experts also feel that the move to decriminalise adultery is a positive step. Says Anjan Ghosh, a sociologist with the Centre for Studies in Social Sciences, Calcutta. “The very fact that such a draft has been put up for public representation is important. It shows that civil society is taking cognisance of the trends in society.”
But if we are dispensing with anachronistic legal notions, why persist with calling adultery an “offence”, albeit a civil offence, as the NPCJ report does? Indeed, some may ask why have a law on adultery at all — unless it is as a ground for divorce. In any case, most lawyers claim that cases under Section 497 are rare, and convictions even more so. Gitanath Ganguly, executive chairman, Legal Aid Services of West Bengal, reveals, “In my 45 years’ legal career, I have not handled a single case of adultery.”
Infidelity and its attendant heartbreak and complications were always a great subject for literature and cinema. But today, it is the staple of nearly every melodrama-sodden Hindi TV serial that beams into your drawing room daily — serials where married men are blithely, almost compulsively, promiscuous. (The women, mind you, are never shown to be wilfully adulterous, though by some strange coincidence, they end up having multiple marriages.) In Bangalore, Dona Fernandes, head of Vimochana, a women’s NGO, reveals that she has been getting two to three adultery-related cases every day — a marked increase from even a few years ago. “Most of the cases are adultery by men. But now we see that many women are also getting into relationships outside marriage,” says Fernandes.
So if infidelity has become so very mainstream, will terming it an offence of any sort make any difference to anybody at all? Again, while the proposed new law may take the sting out of the punishment for adultery, what of the stigma — of the contempt and pity for the wife who has been left for another woman? Of the social censure against someone who has transgressed?
Filmmaker Mahesh Bhatt, something of an authority on infidelity both in his oeuvre (think Arth, Janam, Zakhm, Woh Lamhe, etc) and in his personal life, feels it is completely irrelevant whether you have a law on infidelity or not. “You may impose all these artificial social and legal constraints. But the fact is that you’ll still jump the lights when the cops aren’t looking! I believe that if sex is right inside marriage, it is also right outside marriage.”
However, rightness and wrongness are relative terms. So while the libertarians may rejoice at the prospect of junking a law that seems out of sync with modern times, those who have experienced the slow and painful meltdown of a marriage because of a straying spouse, don’t see things quite the same way. Sheila Sen (name changed) whose marriage broke up because her husband cheated on her, says, “I think there should be a law to punish adultery and promiscuity. Even if there aren’t too any convictions, the law should be there as a matter of principle.”
But whether or not the law on adultery remains or becomes more realistic, the bottomline is that the “neighbour’s wife”, or for that matter, the neighbour’s husband, will always be fair game. As Bhatt puts it, “What’s law got to do with it?”