Embarrassment coma in the courtroom. Cheated husband. Humiliated-but-not-entirely-sorry wife. A rather fazed “other man” who’s about to pay for passion.

The husband wants him behind bars. He wants his rent. Because, of course, his wife was borrowed without consent. And eventually, he’ll get a divorce.

Meanwhile, characters are assassinated. And we’ve got a scandal to talk idly about.

Moses came down from a mountain meeting with God and announced, “I have some good news and some bad news. The good news is that I bargained him down to only 10 commandments. The bad news is that adultery stays in.”

For centuries, the law has sought to shore up that commandment with criminal and civil penalties.

It gave us 497. A prohibition that polices private consensual sexual activity. It disregards sexual equality. It disregards privacy.

“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 of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

Just so we have this down pat: a wife is the property of her husband. That’s her status in the marriage. All that it will ever be. The offence is committed only by the “other” man. The wife is not punishable for being an “adulteress”, or even as an abettor of the offence for which, mind you, the man can be sent to jail or fined or both!

Our hard-lined approach regulates the seemingly sordid conduct of the man who commits such an act, all the while letting the wife involved off the hook. Never mind that her conduct was voluntary.

Here’s the added trap: The husband’s the only person who can prosecute for adultery. The benefit of such a law has not been extended to the wife whose husband engages in such an offense with “another” woman.

The law on adultery, as it exists today, prima facie, violates the fundamental right to equality, a right that is inconsequential of gender.

That same constitution gives us the right to life and liberty. Life being the equivalent of a dignified existence.The very presence of “adultery” in the criminal statute is violative of that very right to live with dignity.

Surely, there are strong reasons to disapprove of adultery. It can and has had devastating consequences for spouses and children. But the steady recurrence of infidelity suggests the ineffectiveness of trying to use legal sanctions and prohibitions and penalties to prevent it.

The fact remains that while we are a patriarchal, judgmental and discriminatory society, we’re also adulterous. And no law criminalizing us for being so can change that. It hasn’t altered social behaviour so far and it never will.

There really are better ways to signal respect for marriage and better uses of resources than publicly prosecuting the choices we make in our private spaces.

If anything, perhaps the wrong can be a ground for divorce, servicing either party, irrespective of gender, in an out of court closure, confidentially.

The law better catch up. The courts ought to strike down adultery penalties for they are incontrovertibly, an anachronistic, intrusive and misdirected effort.

Until the verdict,

This is Solomon Naidu.
Reporting from Courtroom No. 5
Of The Bombay High Court.

(Note: This piece was written before the verdict of the Hon’ble Supreme Court dated 27th September, 2018. We’re thrilled with His Lordship the Hon’ble Mr. Chief Justice Misra’s masterstroke but sad he snuffed our SHOUT! out. Anyhow, we had to let it reach you.)



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