Monday Musings: Double whammy

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Adultery and Marital Rape no crime in India

By Amitabh Srivastava, Edited By Adam Rizvi, The India Observer, TIO: The new Bhartiya Nyaya Samhita passed by Indian Parliament replacing the colonial Indian Penal Code has given a fresh fillip to the age old controversy about the relevance of the institution of marriage and sexual freedom in today’s society.

Decriminalizing Adultery by passing a law in Parliament by Home Minister Amit Shah in a Parliament without the presence of Opposition MPs may have brought Modi’s Bharat up to date with several countries of the world but how this would affect the Indian women seems to be the least concern of the government. We don’t know if their women MPs or ministers were even consulted.

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Historically, most countries and cultures started by considering adultery or having extra marital sex by a married man with a woman other than his wife a crime leading to punishment including capital punishment, hitting by lashes, torture or mutilation. But most of the civilized countries are coming out of that guilt complex and accepting this deviation as a question of personal choice.

In India we still remember classic films like Arth (1982) made by a man like Mahesh Bhatt which clearly stated that live in or having extra marital relations was unforgivable. In the end when Shabana Azami walks out of the marriage with hubby Kulbhushan Kharbanda because he had started an affair with Smita Patil, almost the entire country stood with her.

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Interestingly, the decision to decriminalize adultery is couched in terms showing it as a decision in favour of gender equality.

The 2018, a Supreme Court judgment of the five member Bench had set in motion the move to throw out Section 497 in the dustbin because it treated a woman as her husband’s property.

The five member Bench including then Chief Justice Dipak Mistra held that adultery was an issue to be settled between two individuals and was not a crime.

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The Chief Justice mentioned that Section 497 was like a command to married couples to remain loyal to each other under all circumstances.

The CJI in his landmark judgment ceded that cheating could be a ground for divorce but it could not be criminalized because it was a question of personal choices of both partners.

The men were protesting that there were issues of gender equality involved because it was penalizing only the husband while the woman who was equally a ‘partner in crime’ was allowed to go scot free.

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Justice Nariman stated as much in the Judgment when he wrote that Section 497 made the husband the licensor of his wife’s sexual choices.

Despite such high-profile names justifying the decriminalization of adultery there are senior advocates today who consider this a retrograde step.

Says Shashank Shekhar, a senior Supreme Court advocate, “This decision will be disastrous for the institution of marriage which is sacrosanct in India. This is like legalizing live in relationships except that live in is legal only when both partners are unmarried. I am sure that this will lead to more cases of divorces and suicides which incidentally has also been decriminalized in the new Nyaya Samhita unfortunately.”

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As of now adultery is a crime in most Islamic countries. Punishment could include stoning, capital punishment or torture. Puerto Rico, Phillipines and 15 states of USA also retain the law. China and Taiwan have abolished it after debates for decades. South Korea and Japan have also abolished it. In Pakistan Adultery is a crime under the Hudood Ordinance promulgated in 1979 and punishment could be maximum of death.

In some Muslim countries like Saudi Arabia punishment for adultery could be death by stoning but proving it could be tricky. It requires the accuser to produce four eye witnesses to the act of sex, each of whom must have a reputation for truth and honesty.

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However in India the public reaction to the 2018 Judgment has been mixed.

Most Indian families would agree with Swati Maliwal, then Chairperson of Delhi Commission for Woman who condemned the 2018 Judgment as anti-woman but most prominent leftist women welcomed it as progressive.

Kavita Krishnan, Secretary of the All India Progressive Woman’s Association said the law was patriarchal and had to go.

“The law criminalizing men for relations with other man’s wife was patriarchal, assumes wife is husband’s property and has no autonomy” she had said.

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Brinda Karat, firebrand Leftist leader had welcomed the move.

And they have international support. The United Nations Working Group on discrimination against women in law and practice says, “Adultery as a criminal offence violates women’s human rights.”

Going back in time, in literature when a wife was unfaithful to her husband he was known as a cuckold. It was said that a cuckold could be recognized by everyone because he would have two horns on his head.

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In the 90,s when film maker and director Shyam Benegal who recently died, came out with a string of movies called New or parallel cinema with a totally fresh cast of actors like Naseeruddin Shah, Shabana Azmi, Smita Patil, Amrish Puri he tried to provoke audiences by new ideas.

In ‘Ankur’ one of his trilogies a married Shabana wants to have sex outside marriage because her husband is impotent and she wanted a child.

She is beaten up by her deaf and mute husband in the end and no one objected.

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Today it would be a matter of personal choice under the law.

Whether her husband would approve it or not does not matter.

His choices are limited!

Also Read more from this Author: “Monday Musings: How Far We’ve Come…”

Curated and Compiled by Humra Kidwai

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