New Delhi: India’s adultery laws could soon be changed to make cheating wives punishable in an attempt by the government to make both sexes equal in the eyes of the law.
A government committee on legal reforms has recommended that both men and women be tried for adultery and the government has agreed to the proposal.
On the face of it, making the law gender-neutral appears laudable. The reality is more complex.
At the moment, only a man can be tried on a criminal charge for sleeping with another man’s wife and that too only if the husband wishes to prosecute him.
The reason for this is that the 1860 law, promulgated under British rule by Lord Macaulay, defines a wife as the property of her husband and intended for his sexual enjoyment.
If a husband is deprived by another man of exclusive access to his wife’s body, he is entitled to sue him. If the adulterer is convicted, the maximum is five years in jail and a fine.
A wife can neither charge a woman with committing adultery with her husband nor prosecute her own husband.
The premise underlying the archaic law is that adultery is not a breach of trust and a blow to the sanctity of marriage. Rather, the law is designed to protect a husband’s “ownership” of his wife’s sexuality.
As for women, Lord Macaulay believed that since polygamy was common at the time, wives were socially conditioned to accept a husband’s infidelity.
The question of a woman suing her husband or the other woman did not, therefore, arise.
“It’s a Victorian relic, drafted in a male-dominated society. It reeks of feudalism and double standards,” said Mumbai lawyer Mahesh Jethmalani.
In an effort to alter the law to make it reflect contemporary ideas on equality, the government, backed by the National Commission for Women, wishes to bring women within the ambit of the law.
“It’s unfair that a wife can’t take her husband to court for being unfaithful. Why should she suffer silently? At least the threat of legal action might curb a husband’s adulterous activities and save a marriage,” said Girja Vyas, chair of the National Commission for Women.
But other social groups are aghast that the law is now going to be extended rather than abolished.
“Adultery should be treated, as it is in the US and Europe, as a private matter between three adults, not as a criminal offence. It can be grounds for divorce, yes, but it shouldn’t be a crime,” said New Delhi women’s activist Rita Tandon.
Many women’s groups believe that as India adopts more western ways of looking at marriage, sex and relationships, it is time to treat adultery as something that can cause the breakdown of a marriage but is not something in which the state should get involved.
New Delhi lawyer Sadhana Ramachandran believes the law is ripe for abolition.
“It is not at all progressive to drag women into the net. It is retrograde. And it’s a strange kind of equality that punishes more people for an act that is a totally private matter,” said Ramachandran.
She has seen cases where the current law has been invoked for different motives.
One of her clients was a married couple who had made up after a bout of infidelity by the wife only to gang up against the lover.
“The husband had made up with his wife but wanted revenge against her lover. The wife was so grateful that he hadn’t divorced her over her infidelity that she went along with him. If the lover is convicted, he faces a jail sentence. It’s absurd,” she said.