Supreme Court deliberates over adultery laws: An individual's right to choose sexual partners must be respected

By Aashika Ravi

Many a liberal has at some point ranted about India's Victorian laws. If you were looking for something new to lose your mind over, step right up. Recently, a five-judge bench of the Supreme Court began hearing a petition on one such archaic law – our adultery laws.

What’s the problem with the current laws?

According to Section 497 of the IPC, “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.”

Meaning a man can bring a criminal case against the man with whom his wife has had an extramarital affair. The woman cannot be held legally accountable for the same. Under Section 198 (1) and (2) of the Code of Criminal Procedure, only a husband or (brace yourself) a person in whose care the husband has left his wife can file a complaint under Section 497, which means that women do not have the right to prosecute adulterous husbands.

Representational image. AP

Representational image. AP

What on earth?

Here on earth, Sabarish Suresh, scholar of legal philosophy, traced the history of this law and previous judgments by the court when challenged on the grounds that it was unequal. Back in 1985 for instance, in the Sowmithri Vishnu vs Union of India, the court said this: “It is commonly accepted that it is the man who is the seducer and not the woman.” Again in 1988, in the V Revathy vs Union of India, the court said that not including women under the law promoted "social good in society".

More recently, the apex court has voiced its disapproval on the existing laws. On 2 August, it declared that the laws were “anti-women” whereas its most recent comments came in disagreement with the Centre’s argument of ‘sanctity of marriage’.

Why is everyone talking about it now?

In December 2017, an Italy-based NRI Joseph Shine filed a PIL stating that the law was unconstitutional because it discriminated against men and that women should be held equally accountable.

The Supreme Court on 8 December declared, “A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic.” The court then asked the Centre for its response. In its affidavit, the Centre argued against decriminalisation, saying that "striking down Section 497 of the IPC and Section 198(2) Criminal Procedure Code (CRPC) will prove to be detrimental to the intrinsic Indian ethos which give paramount importance to the institution and sanctity of marriage".

The consent clause in the law seems a bit iffy and jalebi-jalebi. What’s up with that?

Currently, Indian law’s understanding of consent is totally jalebi.

Renu Mishra, Executive Director of Association for Advocacy and Legal Initiatives (AALI), weighs in on the different interpretations of consent.

“If you have relations with someone without your husband’s consent, it’s illegal, so if he consents, then it’s alright? If you are someone’s wife, they have the right to give you consent to have relations with someone else, while consent is actually about autonomy. In the context of Uttar Pradesh, if a girl says someone has raped her, they say you went around with him, you knew him, so it’s not rape. But if that same girl runs away with someone, her parents will file FIR of rape. And if she says I’ve married him, they say no, you’ve been tricked into it. So consent of a woman has no meaning at all.”

The law can be interpreted as unconstitutional if read with Article 14 (equality before the law). The easy fix here, according to some people, seems to be making it gender neutral. Is that a good plan?

Largely, no.

In an article in Oxford Human Rights Hub, human rights and feminist academic Frances Raday writes, “Maintaining adultery as a criminal offence — even when, on the face of it, it applies to both women and men — means in practice that women will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality.”

Meaning?

As Bindu Doddahatti, an advocate at Bengaluru’s Alternative Law Forum, says, “We have to remember how the criminal justice system works in this country. Initiating a complaint in a police station for a woman, entering the police station itself is very difficult for a lot of women. In domestic violence cases, we’ve seen how difficult it is for women to lodge complaints against their abusive husbands and in this scenario, it would be much easier for men to go out and lodge a complaint just because of how the criminal justice system works. It is always skewed and all of the state institutions protect men’s rights. The way police stations work, it’s very patriarchal. If a man is making those allegations, it'll be very easy for a complaint to be lodged against a woman because of how corrupt these institutions are.”

Chances are, if the current laws are made gender-neutral, allegations of adultery could be filed against a rape victim, putting the onus on her to prove that consent was absent.

With a law this problematic then, the only option is to have the Supreme Court strike it down. Most countries have decriminalised it, and it remains a criminal offense in only 20 countries in the world, which include mainly Islamic countries.

The Centre has been arguing that adultery remain a criminal offence to preserve “the sanctity of marriage.” (They have also made some other very compelling arguments like “adultery causes mental and physical injury to the spouse and family"). What’s wrong with this argument? Isn’t marriage sacred?

We asked Jayna Kothari, co-founder of the Centre for Law and Policy Research (CLPR) and intervenor in the PIL on behalf of the NGO Vimochana, to talk about her submission to the Supreme Court in this case.

The submission draws from judgments from all over the world to argue the Right to Privacy and intimate association and to dismantle the Centre’s flimsy arguments of preserving the sanctity of marriage.

For instance, it cites a judgment from Namibia that said, “Although marriage is 'a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties, its essence consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it'. If the parties to the marriage have lost that moral commitment, the marriage will fail, and punishment meted out to a third party is unlikely to change that.”

What about marriages that the Centre may not readily call respectable, like open marriages?

When asked if partners could arbitrarily prosecute each other despite having privately agreed to an open marriage, Doddahatti recommends that India adopt the practice of pre-nuptial agreements. “Having something like this prevents a lot of marital discord. A good solution, moving further, I would suggest that it would be good to start looking at pre-nuptial agreements. It’s not a legal document now in India,” she says.

She also pointed out that the current law is terribly heteronormative.

Kothari and other lawyers we spoke to argue that adultery should be decriminalised all together. Why?  

Kothari says, “One of the main arguments to strike it down is the Right to Privacy. Every person has the right to privacy to their most intimate decisions of their life. One of the areas of your intimate life decisions is who you’re in a relationship with, even if it’s outside of marriage. The privacy is, in this case, of the woman and the third person with whom she is in a relationship with outside of the marriage. You cannot have a criminal law punish them if two people who are consenting adults are in a relationship.” In her submission, Kothari introduces a concept she borrowed from US judgments called the Freedom of Intimate Association.

“In the United States, the right to intimate association was first articulated as an aspect of dignity and liberty by the US Supreme Court in Roberts vs United States Jaycees, 468 US 609 (1984) where the Court on the freedom of association held: 'Our decisions have referred to constitutionally protected 'freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.'"

It also quotes a judgment closer both in distance and time — the Shafin Jahan v Asokan KM and Ors, 2018 case where the Supreme Court acknowledged that choice of partners was at the centre of the right to privacy. “The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one’s personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable,” it ruled.

With regards to adultery laws in the country at least, it's not equality before the law that India is looking for. It’s an acknowledgement of an individual’s right to choose their sexual partners and have those choices be respected, irrespective of morality and ethics or gender involved.

Although recent observations by the Supreme Court bench are in favour of decriminalisation of adultery, it remains to be seen whether they will strike the law down entirely. As of 8 August, the apex court has reserved its verdict on the law but Doddahatti says that the judgment will be out before 2 October, which is when CJI Dipak Misra officially retires.

The Ladies Finger (TLF) is a leading online women's magazine delivering fresh and witty perspectives on politics, culture, health, sex, work and everything in between.


Updated Date: Aug 18, 2018 12:31 PM

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