Marriage is a personal matter. The Supreme Court has done nothing revolutionary in decriminalising adultery. The ruling will not undermine the institution of marriage, writes SEEMA SINDHU
Society cannot exist without law and order, and cannot advance except through the initiative of vigorous innovators, said Bertrand Russell. On September 27, five innovators, Justices Dipak Misra, RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, struck down Section 497 of Indian Penal Code (IPC), 1860, calling it violative of Article 14, 15 (1) and 21 of the Constitution. Section 497 makes adultery a punishable offence under IPC and reads as: Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
Not getting into the ratio and reasoning of the judgement on things which have been written in reams, I would delve on the major contention of the naysayers which has lead to the brouhaha. There is an outcry that the judgment has led to diminution of the institution of marriage and thereby the concept of family. I would confine myself to silence the outcry on this. Former Justice of the Supreme Court Markandey Katju also vehemently criticised the judgement saying that the essence of marriage is “exclusive sexual relationship” and decriminalising adultery strikes at this very essence of marriage. My vehement submission is Section 497 nowhere reflects in itself the aspect of “exclusive sexual relationship” of marriage, and consequently the objective of this section was never to sanctify that notion.
If you read the section, it is self-explanatory. The section only criminalises sexual intercourse of wife with a man other than the husband “without the consent or connivance of that man (husband)”, meaning it doesn’t criminalise sex with the ‘alien’ if indulged with the “the consent or connivance of that man (husband)”. So, the object of the section was not to keep sanctity of the exclusivity of sex between husband and wife. The object was something else. When the section was infused into the IPC, polygamy was a norm in India and the husbands were leaving one young wife for another younger wife. The ignored and deprived wives were looked upon as victims and the men in their service as seducers. This threatened not only the exclusive sexual proprietorship of the husband over the ignored wives, but also dented his notion of manliness if the exclusivity was trespassed on. That is the genesis and objective of this section.
Second misconception to be warded off is this that the judgement only decriminalises adultery, but this doesn’t mean it gives a sanction to extramarital sex. It simply means adultery is no more a crime but it is a misdemeanour against marriage, and like all misdemeanours, the remedy is of civil nature and not punitive like the case earlier. Section 13 of Hindu Marriage Act provides adultery as a ground for divorce which is available to both husband and wife.
I personally feel that this is an excellent judgement. Marriage is a civil matter and a civil remedy has been provided. Of course at the option of the grieved. Moreover, it would not be wrong to empirically say that this section was almost relic in law which has nearly nil functional value for the reasons: It’s very difficult to prove adultery because of its clandestine nature and the criminal jurisprudence of proving an offence beyond the reasonable doubt which is very difficult considering the nature of the act. And that’s why the grieved mostly resort to divorce in such cases rather than netting in IPC. That’s exactly what the Supreme Court has done — bringing it from the punitive pinions of crime to civil.
The Government’s discomfiture with decriminalising adultery was that it devalues marriage and society has interest in marriage. This is the point of larger debate. And it’s excellent that we are debating it. Institutions are made on the premise of collective interest of society and since collective interests change with the pace of life, institutions are reinvented or diminished in accordance with the socio-cultural matrix of the relevant times. And that’s what is happening.
The major overhaul of the concept of marriage in India happened in 1955 with the inception of The Hindu Marriage Act. Marriage was considered a sacrament in the olden times, at least theoretically. But with the imitation of the concept of divorce from the West, the sacrament notion of the marriage is bygone. As the society evolves, the individual interest is to be balanced with societal interest. That’s the hallmark of any advance society. Going forward, the individual interest weighs over societal interest, particularly in civil matters.
Marriage primarily is a personal matter, and the society must leave a breathing space within so as to not make it so stifling that people start abhorring the concept itself. The apex court has done nothing revolutionary since its decriminalisation is not going to drill the institution of marriage more than the existing holes. The judgement is more of academic value than functional in the regard that it has broken no physical structures of marriage. What it has broken is the normative value of marriage in the sense that husband has no sovereignty over wife. Such normative things don’t diminish institutions like marriage which is contemporaneous with the advent of society itself. It only shakes the skeleton.
Even marital rape, if the concept is embraced, is not going to do much damage to the institutionality of marriage because it would be very tough to prove it. Such concepts are advented only to shake the skeletons and not to break it. Marriage has a utilitarian value, so it’s not going to be irrelevant in the foreseeable future. But that value is to be evaluated by the individuals and not society — at least in civilised societies like ours. The values and fidelity of marriage are to come from within the individuals concerned, and not from the sanction of law. Let the sanction be garland of arms than the halter of law.
(The writer is former journalist and presently pursuing law)
