A petition in public interest, Joseph Shine vs Union of India, re-opens the vexed question of whether marital infidelity should be treated as a criminal offence. Although a ground for divorce is available to both spouses under all personal laws, adultery by the wife is also a crime. Section 497 of the Indian Penal Code allows the husband to prosecute the wife’s lover, while shielding the wife.
As the earlier challenges to adultery were mainly based on discrimination, the questions before the Supreme Court were limited to the validity of criminalising the wife’s adultery but not that of the husband; or of prosecuting the lover but not the wife as accused.
In Yusuf Abdul Aziz vs State of Bombay (1955), when the man accused of adultery protested the unfairness of exempting the wife from prosecution, the court justified it as a measure to protect women. In Sowmithri Vishnu vs Union of India (1985), the wife sought to quash the adultery prosecution, arguing that in denying a woman the right to prosecute the husband and his lover, the law allowed men the license to have extra-marital affairs. The court justified the criminalisation of a limited class of adulterous relationships on grounds that the woman is the victim, not the author of the crime.
In V. Revathi vs Union of India (1988), while deciding a challenge to adultery law, the court rejected that it was discriminatory. Noting that the law did not allow either the wife or the husband to prosecute each other for adultery, but targeted only the “outsider” who “invades the peace and privacy of the matrimonial unit”, the court explained this as protecting the sanctity of marriage.
What the courts have yet to address fully and cannot avoid any longer are the issues of sexual autonomy and privacy, both intrinsic to the right to life enshrined in Article 21 of the Constitution. In its origins, adultery had little to do with women’s consent or bodily integrity. Instead, it was about vesting control of female body, sexuality and reproduction, in the hands of the patriarch to ensure purity of caste-based bloodlines and lineage.
Of 1860 vintage, the penal code defines extra-marital unions of the woman that are without the husband’s consent as adultery. Rather than protect the family, as is erroneously claimed, adultery law affirms patriarchal control over women’s labour and reproduction. Recognising this aspect, Lord Macaulay discouraged making adultery an offence, observing that legal redress was insufficient to avenge honour for the caste elite, while monetary compensation would work better for the toiling classes. In his words, “to make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt…”
Arguments that adultery law protects the sanctity of the family disingenuously mask the inequalities and oppression within the family that both international and domestic law have sought to dismantle. International human rights law allows regulation of family only on three grounds – to secure protection of the family against interference; to ensure that both spouses enjoy equal rights upon marriage and at its dissolution and to protect women and children from domestic violence. The Constitution cannot be invoked to justify adultery law.
The definition of consent in the penal code acknowledges woman’s willingness to engage in sex rather than her chastity, to differentiate rape from lawful sex. More recently, in K.S. Puttaswamy and Anr. vs Union of India (2017), the Supreme Court confirmed privacy as an overarching fundamental right, with the “preservation of personal intimacies” at its core.
The present challenge is not about the ethics of adultery, a matter for spouses to resolve, including through the option of divorce. Instead, it is about testing adultery against privacy and sexual autonomy, constitutional rights which have in recent times have finally begun to get attention they deserve within the law.
Madhu Mehra is the executive director of Partners for Law in Development, a legal resource organisation on women’s rights, one of the intervenors in PIL on adultery.