The Supreme Court of India seems to be very busy of late dealing with social matters. The resounding negation of Section 377 brought about a long pending change by decriminalizing homosexuality. This relic of our colonial past was held on to quite tenaciously by some sections of our society. It is unfortunate that our Indian law-makers often find it difficult to rescind laws which reflect a British morality of the late nineteenth century. And therefore many years after the British Parliament had sent the original English law into the dustbin, the Supreme Court of India had to do the same. And not many days later the Supreme Court had to deal with a similar law, Section 497, or the law around adultery. The Supreme Court has ‘decriminalised’ adultery, which means a man caught or proven to be in an adulterous relationship or sleeping with someone else’s wife, can no longer be imprisoned. On the face of it this appears like letting the man who has patently done something ‘wrong’, scot free or not having to face the consequences. Adultery appears to be patently a crime and now the criminal seems to be free from any punishment.
Unfortunately the existing law was more complex than dealing with simply adultery or the phenomenon of having sexual relationship with someone else’s wife ( since the law did not deal with the situation of a woman having sex with someone else’s husband). The law as it stood stipulated that this crime would only be recognized if the man in question had sex with another person’s wife without that person’s explicit or implied permission. Which, in other terms meant, that a married person was well within his right to offer his wife to other men’s for their sexual services. This alternate formulation of the law somehow doesn’t seem right. It implies that two men can offer and accept the sexual services of a woman who is actually the wife of one of them. This somewhat business kind of deal appears to be very wrong with the woman being treated as an object whose sexual services can be traded by her husband who had the legal right to ‘pimp’ his wife. And this is what the judgment struck down with the assertion that “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say that a husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong.”
But was this the only way to deal with this law which was demeaning for women? The Government of India had appealed in its affidavit that “(A)dultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds.” Doesn’t the new law now allow freedom to adultery, and won’t it hurt the sanctity of marriage as the Government claims? Within a framework where exclusive monogamy is the social standard, adultery appears to be morally ‘wrong’, however the idea of monogamy especially in the Indian context is a reasonably recent phenomenon. Hindu culture includes numerous examples of polygamy mostly polygyny (where one man has many wives) in almost all stories, epics and myths. While many of us today believe that it is Muslims in India who are polygamous it is not the true picture. The monogamous standard among Hindus is also the result of relatively recent changes in the law. Before 1955 when the Hindu Marriage Act was drafted both Hindus and Muslims could practice polygamy, with monogamy being a condition only for Christians. Even after polygamy became illegal in 1956 many Hindu men continue to have ‘common law’ wives who are women the live with without marriage or when they have a married wife living somewhere else. This phenomenon is common enough to be a acknowledged in court both in many judgments.
Even though polygyny is the more prevalent from of polygamy, from Haryana and Rajasthan there are stories emerging of a new kind of polygamy, in this case it is polyandry where brothers share a common wife from far away regions like Assam, Bengal, Jharkhand or Orissa because of the acute shortage of brides as a result of the continued practice of sex selection over years. In the villages bordering Garhwal and Himachal Pradesh is the region of Jaunsar Bhabar where ‘Pandav pratha’ or the practice of one wife for a family of brothers (like in Mahabharata where Draupadi was the common wife for the Pandava brothers) was the tradition not many years ago.
The HIV AIDS epidemic has also blown the lid of sexual relationships in India. We now know that many men, especially those in specific conditions, also called key populations, have multi-partner relationships. Many more monogamous women were infected with HIV because of their partners having multiple partners than the other way around. So many men would appear to have sexual relationship with other women even when they are married, and women appear to carry the burden of monogamy.
The Supreme Court judgment has dealt with both the issue of women’s equality as well as the moral issue of adultery. Through striking down the law it has removed a barrier to potentially consensual sex between two adults and stopped the treatment of women as property of their husbands. We have to consider adultery as a consensual act between the two parties concerned, otherwise it would be tantamount to rape which continues to be a criminal act. While recognizing the value of consensus, the law also equalizes the liability of both women and men because adultery continues to remain an issue of concern in the civil domain. Both parties have the option of divorce or dissolution of marriage if the situation is unacceptable. It is true that marriage is a sexual contract, and if sex with a third person is deemed unacceptable by within the terms of their agreement, the recourse of civil remedies remain in place for either parties.
Both sections 377 and 497 were involved in criminalization of consensual sexual activities and it is good that consensual sex either with someone of the same sex or with someone else’s spouse are no longer criminal acts. A new and more progressive sexual morality would appear to be looming over our country which seems like a good sign in troubled times.