Adultery and (the long arm of) the law

Adultery is the act of having sex with a woman or a man outside of marriage. We commonly refer to it as ‘extramarital sex’, and most people are surprised when they hear that it is actually a crime under Indian law, like robbery or dacoity. The word adultery is derived from the words ‘ad’, which means towards and ‘alter’, which means other in latin. According to some studies, as many as 27% of women and 50% of the men in the U.S.A have engaged in extramarital sex. And if we take the view of the Bible, “But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. (Matthew 5:28)”, it will be almost 100% of mankind.

Despite that, many nations have taken very strict views against adultery. Many states in the United States still view it as an offence. It is amusing today that in the West, adultery was looked at a man’s property (his wife) being shared, and so he was entitled to compensation! In our times, the Islamic world is famous (infamous, really) for its very harsh stance on extramarital sex. In many Islamic countries, including our neighbor Pakistan, the punishment for adultery can extend to death.

Indian law on adultery, as many people acknowledge, is quite outdated and unequal. The Indian law states that a person commits adultery, if “he has sexual intercourse with a woman who is and whom he knows or has reason to believe to be the wife of another man.” By using the word ‘he’, it limits itself to men only, and women cannot be even accused of the crime. Additionally, it is only limited to married women. Therefore, even if the man is unmarried, it can be adultery for him to have sex with a married women. Only if the woman’s husband consents to them having sex, it is not an offence. Naturally, if the woman is forced to have sex with the man, it is not adultery, but the much more serious crime of rape.

To sum up, an act of adultery is committed when any man, married or unmarried has sex with a married woman
1. Without the consent or connivance of the husband, and
2. The woman consents to having sex with the man, i.e. it is not rape.

Not only is it unequal, it is also quite severe. A man committing adultery can be put behind bars for as many as five years. A lady who suspects her husband of being in an adulterous relationship can therefore file a criminal complaint against him. One wonders however whether this is a workable solution in a country like India, especially when the punishment is so severe.

A few changes must be introduced in the law to make it equitable and fair. First, it should be an offence to have sex by a married man even with an unmarried woman. If the objective is to punish a man for his disloyalty, it does not matter with whom the act of disloyalty is committed. If the objective is to somehow compensate the husband of the unfaithful woman, we need to re-examine our law, because such an objective is very unfair and regressive. Moreover, if that is the objective, then why not punish the woman as the abettor too? The punishment in that case must be extended to both sexes, if at all a punishment is to be imposed.

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