Adultery: Protection of women? Or the breakdown of marriage?

On the 28th of September, the Supreme Court of India struck down a 158 year old law on adultery, decriminalizing the idea of adultery and watering it down from being a criminal offence to only a matrimonial one.

The reasons given by the judges for decriminalizing the action of adultery was that precedent should not bind the march of progress. The idea propounded has been that adultery as a crime is an outdated concept and that it is only a matrimonial offence, at best a ground for divorce. The only option left for a spouse whose partner is adulterous is to get a divorce.

The judgment starts with

“The beauty of the Indian Constitution is that it includes ‘I‘, you‘ and ‘we‘. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of.”

The judgment goes into the very root of law. The basis of law and the idea of what constitutes a public wrong  and detrimental to society has been analysed threadbare but jurists and thinkers world over. The most commonly accepted of these theories is Mill’s Harm Principle.

Crime is defined in various terms, but when we look at these definitions, one line of thought becomes clear, Crime is an outrage against the society. An action that outrages the morality of the society or harms its members, through no fault of theirs may be broadly classified as Crime. To understand the genesis of why Crime and the subsequent punishment was introduced in a civilized society, we need to analyse how an action affects a person, and how that effect then translates to the society being aggrieved as a whole. Adultery falls squarely within the definition of Crime as espoused in Mill’s ‘Harm Principle’. Adultery is not an action that affects just two people, it is a tripartite interplay, in which the ones who gets the most aggrieved often have no idea or are kept in the dark about the actions of the adulterous couple. The spouse and children of the adulterous couple as well as the society are the ones who suffer the most in these relationships, despite the fact that they often have absolutely no role to play in these matters. It is a clear action of harm. The outsider to the marital couple already knows that his actions will harm the marriage, and still proceeds willingly in the act Raffaele Garofalo defines crime in a sociological perspective – “Crime is an immoral and harmful act that is regarded as criminal by public opinion, because it is an injury to so much of the moral sense as is possessed by a community- a measure which is indispensable for the adaptation of the individual society”.

When we look at the action of adultery, the first reaction is outrage, surprisingly it is not the outrage against breaking of a marital bond, but it is outrage at the breaking of trust, at the betrayal of the spouse.

That being said, adultery is not just the breaking of an emotional trust, it has very real tangible effects. Adultery is injurious to the spouse of the person engaged in an adulterous relationship; it causes tangible physical and psychological harm to the spouse.

Section 44 of the Indian Penal Code defines injury to include any harm whatever illegally caused to any person, in body, mind, reputation or property.  Experiencing anxiety after an affair is very common. Whether the affair was emotional or physical, living through this experience on either side of the coin is emotionally draining. It causes an array of emotional reactions that can include loneliness, depression social isolation and compromised self-esteem.

Chronic stress and anxiety take a toll on your physical and mental wellbeing. Anxiety leaves you open to sickness and disease and causes your body to become physically exhausted.

Being cheated on has a tangible negative side effect on your mental health. Men and women who have been cheated on have been proven to suffer higher instances of depression, and lower self esteem.

Sexual fidelity is not an idea to be taken lightly. Within a marriage it is one of the biggest pillars on which marriages stands, despite changing times and values, sexual fidelity is still a valued and essential component of a marriage. We may cry hoarse about modernity and changing times and values, but even today when a couple gets married there is a trust that the spouse reposes in the other, and one of the basic fundamentals of that is sexual fidelity. Infidelity in a marriage, breaks that trust, it devalues the family as a whole and gives the erring spouse ‘an easy way out’. Divorce is not enough for such an invasion into marital privacy, the outsider, intruding in a family must be punished.

Adultery has such wide ramifications that a substantial part of our literature deals with it as its central theme, the classics by Fritzgerald  and Tolstoy, the Great Gatsby and Anna Karenina shows us the sordid reality of adultery. Adultery is not just two consenting adults entering into a sexual relationship, it is also another adult, unwillingly being dragged into, very often a woman, whose entire life has revolved around the adulterous spouse.

In this scenario, where defamation also has been upheld as a criminal wrong, can we truthfully with all our hearts say that adultery is not a crime. Is not worth punishing. In  a country where family is an extremely tightly knit unit, can we safely say that adultery harms no one and is simply an action between two consenting adults?

It is not in dispute that the adultery laws in India were gender skewed. They on one hand protected the woman from prosecution, and on the other gave no respite to a woman whose husband had been philandering. The Malimath Committee Report of 2003 recommended gender neutrality for the section and asked to amend the section to “…Section 497 of the Indian Penal Code regarding the offence of adultery be amended to include wife who has sexual intercourse with a married man by substituting the words ‘whosoever has sexual intercourse with the spouse of any other person is guilty of adultery’…”

Invalidating a statute that protects the marriage and all that it contains is a grave step, It must never be done casually, and never under the sole aegis of modernity. Every step that we take a country needs to be tailored to the unique society that India is. This does not mean that we keep retrogressive laws, because they form a precedent, but to invalidate a statute we need to test it against sound jurisprudential principles. It is a well settled principle of law that a statute cannot be held to be bad due to under inclusion. Almost all laws are under inclusive, a statute prohibiting use of loudspeakers near hospitals cannot be struck down merely because it does not also prohibit use of car horns or shouting near hospitals, or use of loudspeakers near schools In a democracy, it is a populace that is supreme. Invalidation of a law by the judiciary means in essence going against the will of the people. In a case like this one, I for one remain unconvinced that the will of the people has been effected.

By Pinky Anand