You Are Your Husband's Property, You Can't Feel The Same About Him. The Curious Case Of Indian Laws On Adultery

Three is a crowd, especially in a marriage. But should someone face criminal action for stepping outside the bounds of matrimony? That's what Indian law still holds. It punishes the male partner for trespassing on another man's property, namely, his wife.

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The adultery law was in the spotlight last week when C Channaiah, a resident of Hyderabad's Shivaji Nagar, pressed adultery charges on a police constable after discovering him in bed with his wife. Channaiah first locked up his wife and the constable, Madhusudan Reddy, in the bedroom, and then raised an alarm. He alleged that the affair had been going on for several months. Reddy has been arrested under Section 497 of the Indian Penal Code, and could face up to five years in prison if the charges are upheld by the court.

His willing lover, though, need not fear the law, since it does not apply to an adulterous woman.

Reddy has been unlucky enough to be caught in the maws of one of India's more archaic laws. Section 497 treats extra-marital affairs as crimes. More precisely, it sees it as a theft of a man's wife. The woman's own agency and rights are ignored.

Mappindia

In fact, it only applies to situations where the wife commits adultery. The wronged husband can invoke Section 497 against his wife's sexual partner. But if the situation was reversed, and the husband had committed an infidelity with an unmarried woman, his wife has no power to move the law. He faces criminal liability if his lover is married, and her husband files a complaint.

One of India's most famous cases of marital infidelity and courtroom drama is that of navy commander KM Nanavati, who shot dead his wife Sylvia's lover, the businessman Prem Ahuja. While Nanavati faced prosecution for murder, Sylvia did not. That 1950s crime of passion was the reason India abolished the jury system. That case has inspired several Bollywood movies, the most recent being Rustom.

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But over the years, it has been widely recognised that the law is patriarchal and discriminatory, and out of touch with contemporary society. And yet, it lingers on, in the IPC. In 1951, Yusuf Aziz challenged its constitutionality, but Bombay High Court upheld the section, saying that the Constitution has such special legislations for women. In 1971, the Fifth Law Commission recommended changes in the provision, including making the law gender-neutral and reducing the prison term from five to two years. Those recommendations were also ignored.

In 2006, the National Commission for Women rightly recommended that adultery be decriminalised.

Perhaps the reason it has not been erased from the statute books is because there is no political will or public pressure to do so, with questions of morality enmeshed in the matter. "In my view, adultery should be treated as a civil misdemeanour, not a criminal one. We can't treat adultery as a crime," says Prof Mary E John from the Centre for Women's Development Studies.

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Why should a law on marital infidelity let women off the hook, and focus solely on the male partner? In 2003, the Malimath Committee, constituted by the Union home ministry, declared that "there is no good reason for not meting out similar treatment to a wife who has sexual intercourse with a married man." So, instead of confining itself to anyone who has sex with "the wife of another man", the Malimath Committee said that Section 497 should penalise anyone who has sex with "the spouse of any other person".

But the real question is, why should men or women be treated as criminals in the eyes of the state, for their private decisions? This law offends sensibilities, says senior Supreme Court lawyer Geeta Luthra. "The rationale behind the law is unpalatable, and it should be removed. One the one hand, we have this law, and on the other we have the SC ruling that recognises the legitimacy of live-in relationships," she says.

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Divorce lawyer Shilpi Jain agrees. "The adultery legislation has no relevance in today's social context. It treats a woman like a property of a man ¡ª like a cow or a car ¡ª which is unfair. The Supreme Court has recognised live-in relationships and there is a change in our social values today," she says.

In an op-ed in The Los Angeles Times, Deborah L Rhode, a professor of law at Stanford University and the author of Adultery: Infidelity and the Law, recounts a joke on how Moses came down from his 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."

It's time for this anachronistic and gender-biased law to go out.