The central government told the Supreme Court last week that it will not support any attempt to decriminalise adultery in India. If anything, it favours widening the scope of the criminality by making adultery laws gender neutral. Currently, the laws apply only to men.

Adultery is defined as having sex with a woman without her husband’s consent, and is a criminal offence under Section 497 of the Indian Penal Code, punishable with up to five years in prison.

The government has argued that adultery strikes at the very heart of the institution of marriage and, thereby, the concept of family. By implication, decriminalising adultery will pave the road for moral decadence, which a country steeped in traditional values cannot allow. To back up its argument, the government has cited the Supreme Court’s 1985 judgement upholding the criminality of adultery. It seems to have forgotten that privacy laws have changed significantly since that ruling, culminating in the Supreme Court declaring privacy a constitutional right last year.

Adultery laws fall foul of two crucial constitutional parameters. One, it is settled that any legal provision, whether enacted before or after the adoption of the Constitution, must satisfy the values of the Constitution. Tradition and popular morality cannot trump constitutional morality. Two, criminalising adultery denies an individual bodily autonomy by placing a penal restriction on choosing a sexual partner, which is considered the most intimate of decisions a person can make. It, thus, violates a fundamental right by undermining the concept of consensual sex, which is not a criminal offence otherwise.

Save for a few, liberal democracies the world over have decriminalised adultery, a colonial precept rooted in Victorian morality.

Tradition and adultery

Over the last few years, the West has witnessed a resurgence of ideas emphasising the centrality of religion-based traditions in the development of modern societies and the laws that hold them together.

In his book Inventing the Individual: The Origins of Western Liberalism, the political philosopher Larry Siedentop observes that Greek and Roman religious and moral beliefs were instrumental in the rise of the city state, the foundation of much of the modern society. But these underlying beliefs were not seriously challenged until the first century AD, he adds.

Siedentop explains how the family was the driving force behind these early societies. They were marked by great reverence to the man-woman relationship, ensuring not only the continuity of the family line but also protecting the purity of rituals.

Some of these Greek and Roman traditions survived the collapse of the city states, and seeped into later Christian values. These concepts, in different forms, endured even after the advent of the modern systems of government, finding a place in laws.

This is not to say marriage was sacred only in the West. The Hindu culture also holds marriage in high esteem and scorns at infidelity. In fact, regulating marriage and sex helped sustain the caste system and the concepts of purity associated with it. The Manu Smriti, for example, prescribes a number of harsh punishments for sexual transgressions, including excommunication.

This is the context in which modern laws of adultery emerged. But for sometime now, Constitutional traditions that recognise the individual as the basic unit of society, and bestow upon them certain fundamental rights, have been challenging such restrictive concepts as adultery.

Gender and adultery

The Indian Penal Code, 1860 is a remnant of the colonial era, enacted when Victorian morality marked by sexual restraint ruled supreme. In India, though, the definition of adultery and the mode of prosecution prescribed for it are unique. Section 497 states:

“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.” 

This law can be invoked against the adulterer only by the husband of the adulteress. It does not provide for the wife of the adulterer to seek prosecution nor does it allow for prosecuting the adulteress.

This inconsistency was the primary ground for one Sowmithri Vishnu to challenge the provision in 1985. She approached the Supreme Court after her husband filed a complaint of adultery against the man she allegedly had a sexual relationship with. She argued that Section 497 made an “irrational classification”, in that it held only men capable of committing adultery, and denied women the right to prosecute an adulterous husband.

The court refused to entertain this challenge, ruling:

“Section 497 does not envisage the prosecution of the wife by the husband for ‘adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. 

The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in s. 497 is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law.”

Put simply, the court held that an adulterous relationship is forced upon the woman by the man. The apex court, however, left it to Parliament to decide if the law should be made gender neutral.

What the court didn’t adequately deal with is the question of privacy, consent and bodily autonomy, all facets of the right to privacy that was strengthened through a landmark judgement last year.

Privacy and adultery

Do India’s adultery laws pass the test of the right to privacy as articulated by the Supreme Court?

In its judgement, the court observed that the idea of privacy has three distinct connotations: spatial, decisional and informational. While spatial provides for creating private spaces, decisional autonomy “comprehends intimate personal choices” of an individual.

Discussing the question of the LGBTQ rights, the court said in its judgement:

“Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” 

Decisional autonomy and, by extension, bodily and sexual autonomy are integral to the right to privacy. This being so, restricting two consenting individuals, married or not, from exercising this right runs counter to the Constitution. To invoke tradition to justify such restrictions also falls foul of the fundamental tenets of constitutional interpretation, under which constitutional morality supersedes popular morality.

This is one of the primary reasons why many countries in Europe and Asia have struck down adultery laws. In 2015, while decriminalising adultery, the Supreme Court of South Korea said:

“The precondition of human dignity and right to pursue happiness is for each individual to have their rights to choose their fate. And the rights to choose their fate includes rights to be engaged in sex and choosing the partner.”

In many countries in Europe, adultery is a ground for divorce but not a criminal act. It, however, remains a criminal offence in many conservative nations, such as those in West Asia, and some states in the United States.

In India, given last year’s authoritative judgement on the right to privacy, it is imperative that adultery be decriminalised.