There are conflicting signals coming from Indian courts as to whether adultery should be illegal or not. On the one had, the Delhi High court allowed a woman to live in with a married man saying that it had no right to dictate to her how to live her life. The woman in question had bluntly told the court that it’s her life and she will live it the way she wants. She wasn’t being exploited and wasn’t being forced into the relationship and the court concluded that as an adult she was within her rights to live with whoever she wanted.
On the other hand in a perplexing decision, the same court (but not the same judge) refused protection to a married man and his live in partner saying “This is not America.” In this case, there doesn’t seem to have been any reasoning behind the statement and it comes across as the judge’s personal opinion and morals being shoved down the throat of others. IHM has written an interesting post about this as well.
Of course, in such situations there are matters such as child support and maintenance but those are quite separate from the issues of living in with whomever one chooses. I would be quite alright with a judge saying “Live with whosoever you choose to regardless of whether you’re married or not. Just make sure that your children receive the support and aid to which they are entitled.” After all, how can a court or the government force a person to live with someone else when they no longer want to?
Yet those who feel that adultery should be a crime seem to want just that. There might be good reasons for not wanting a divorce. Sometimes it can be just too much of a headache and the partners can simply decide to part ways while still being “legally” married. In such a scenario, the marriage itself means nothing and yet the man can be penalized for adultery but the woman cannot.
But there are challenges to the law coming up. There are challenges on constitutional grounds and the court has asked the government for clarification as to why the law shouldn’t be scrapped like it did with Section 377 regarding homosexuality. Apart from being unconstitutional, the law is also highly gender biased since men can be prosecuted under the law, but not a woman.
It’s time that such ridiculous moralizing be done away with. I mean how stupid are we that we allow the government to step into people’s bed rooms? Let people handle their own lives and their own affairs and have the government step in only when someone’s rights are being violated.
Incidentally while researching on a topic of law for a writing assignment, I found out that adultery is prohibited even in some states of the US including Colorado! No punishment is prescribed, but it’s just “illegal.” The last case in Colorado that the law was applied to was in 1925 :) .
1. The woman you mention wanted a divorce to marry a man of her choice. But this man wants to stay married to his wife, and also have an extra marital relationship. He basically wants two partners.
2. Socially adultery is acceptable for married men but not for women, which is why that one case has shocked the society and upholders of a woman’s morality.
3. Under the Adultery law, wives are treated like men’s responsibility and property. A man is charged with stealing another man’s wife, when he is charged with adultery.
4. Also by the same logic, a man can legally demand that the wife lives with him, while a wife can’t make such a demand. (I need to read up more on this one though).
5. But I agree adultery law should be fair. Should it be scrapped? Only when it is as possible for a wife (socially, economically etc), as for a husband, to walk out, or find a new partner.
I think the law should make sure every citizen is made to support any children they have. Also, if a partner gave up economic independence to make their home/raise their children, this partner has to be provided maintenance.
In reply to Indian Homemaker
It’s quite possible for a woman these days in India to walk out of a marriage without economic consequences. Social reactions aren’t a matter for the law to take a hand in. If they were, then gays should still be treated as criminals. We must do what’s right after all.
About providing maintenance, shouldn’t it end as soon as the other person is given enough time to start earning on their own? Otherwise we have a situation when one person has to forever support another. I think after a reasonable time, maintenance needs to end.
About the missing comment, was that the one which disappeared?
In reply to bhagwad
Bhagwad a very, very small percentage of Indian women can walk out of miserable marriages even today. The purpose of law is be fair to all the citizens, women need equality too. So social biases and dis-balances cannot be ignored.
Gay rights should be respected for the same reason – to ensure they are treated as equals in the society.
I also support reservations for Dalits because there is, even today, plenty of caste based, unwritten reservation in the society, like jobs for cooks are reserved for the upper caste, and jobs of cleaning toilets are reserved for dalits. I once blogged about this, with links and videos – the bias is undeniable.
Of course we must do what is right. And it is right to be fair to all citizens. Why should 50% of population continue to enjoy special (social, cultural, occasionally even legal) privileges? Male citizens in India enjoy plenty of reservation too, including the right to be joyfully welcomed into this world.
In reply to Indian Homemaker
I don’t feel the government should take into account social biases. For example, should gays be given special privileges that the rest of us don’t have just because there’s a bias against them? As it stands, the law merely gave them equal rights, not special rights.
Such things also have unforeseen repercussions. The example of Dalit reservations is a good one because we have lots of cases where people want to get a backward caste certificate to make use of reservations. Similarly, we’ve also seen women blatantly misuse the anti dowry law which gave the special rights over other citizens.
The bottom line is that giving special privileges is a double edged sword and all over the world, countries have made do without them. Blacks in the US have progressed pretty well without affirmative action and women in the US have not needed them even though gender discrimination has a long history in the US.
Biases will sort themselves out over time when the law is made equal. By making the law unequal, we’re not only giving a kind of sanction to those biases, we also make a lot of people bitter. Just ask any non-scheduled caste person what they think of reservations!
If 50% of the population enjoys social, and cultural privileges then it’s up to society and the culture to sort things out. One doesn’t try and correct that by tipping the legal scales in favor of the segment. Of course, if there are legal imbalances then I’m all for them being corrected.
In reply to bhagwad
1. “…Just ask any non-scheduled caste person what they think of reservations!…”
I will have more on the main topic, but quickly on this one:
I am from a non-scheduled, non-OBC caste and support reservations for SC and ST communities. In fact there is strong support for reservations for these 2 categories across a wide spectrum of ppl including those that are opposed to OBC reservations (I’m undecided about OBC- have different views abt specific categories/ communities in there).
2. On or close to the main topic, I do believe it is okay for society to put in place temporary self-erasing privileges that are not absolutely “equal” to combat prevalent inequality. In principle, absolutely no argument there from me.
These privileges tend to get entrenched and not go away, the beneficiaries can keep finding themselves discriminated on some grounds or the other. This begins to be a problem (for me).
If the beneficiaries of any reservation or affirmative action policy would support a phasing out of the privilege as they approach close to equality (a ballpark approximation: say X is perfect equal, something like 80% of X) they would probably get wider support.
Thus even in practice, I would support such policies until they get to within that mark or so in my view. Then I would turn around and start expecting ppl to decelerate (expecting to be disappointed and pleasantly surprised when somebody actually does it). My knowledge or expectation of their non-cooperation and coming embitterment does not prevent me from seeing this as “greater good for the greater number”.
thanks,
Jai
In reply to Jai_C
Just realize no part of my comment is anywhere close to the main topic. sorry abt that :-)
In reply to Jai_C
I was just about to reply using this very same point. Once laws are in place, they’re very difficult to remove. Suppose for example the 33% women’s quota was implemented. Removing it later will be very difficult since it will be the ultimate vote loser no matter how much things have progressed!
In reply to bhagwad
Actually bhagwad, I’m not against reservations (at least to the extent you seem to have read it). I believe the 33% reservation where implemented is a moving caravan thingy sweeping across constituencies and each const. gets periodic open cycles.
When women start competing and getting elected close to 33% mark overall it makes the case for de-reserving those seats. I believe women do well in reserved seats after they get de-reserved and revert to open category (whether due to genuine good work done after they got elected, or by getting into the slush funds available with power and using them in re-election campaigns like any average male politician is not clear).
Thus the % of women in legislature or governing body improves overall.
thanks,
Jai
In reply to Jai_C
But my question is that when women are fully empowered, will the whole 33% thing ever be completely scrapped? Which political party will do it?
Reservations in India if anything have only entrenched socially accepted discrimination. By acknowledging such discrimination in law, the govt. has given new life to such divisions which would die out eventually by themselves as the economic lot of people improves in general.
To make matters worse, a persons’s caste can never change since it’s hereditary. Rich people can become poor but a lower caste person can’t become an upper caste person. So the whole idea of reservations based on caste is ridiculous since it helps no one.
It would have been better had the government ignored the caste system and just made it illegal with strict punishments for discrimination based on it.
In reply to bhagwad
Caste is a reality in India. People wish they could wish it away. But it is very real and tangible ground reality. Economic lot of “people” is not improving as fast as “people” want it. The violent maoist uprising is mostly fueled by disgruntled people who don’t have enough to eat and nowhere to turn for work.
As long as caste is there and as long as there is a concept called “upper caste” vs a “lower caste”, the people in the “lower caste” will feel victimized. The higher caste people do not tolerate lower castes in the villages of India. Anyone who tells you otherwise has not stepped out of the cities in a very long time.
Fact of the matter is there are more “lower caste” people in India then the “upper caste” people. The “reservation” policy is aimed at government jobs. In India “government jobs” means power and respect in return for very little work. I think the government is trying to avert outright civil war by providing “reservations” in government jobs. The alternative would have been armed struggle by the disfranchised “lower castes”.
You are right when you say reservation benefits nobody. They don’t, the idea is not to benefit from reservations, the idea is to force the concept of “equality” on a society which is fundamentally racist. Once the person in a remote village gets used to the sight of a “lower ” caste person, things will improve. Until then reservations will stay.
My comment disappeared!
Yes that’s the comment… I think the comments are taking some time to appear. And even while writing the comments, the curser keeps jumping to the last line, even if I am trying to add a word to a line above!
Interesting article and comments.
That would amount to overlooking the biases faced by women in everyday life. What kind of Democracy would allow that?
Social ‘laws’ are as powerful, if not more than the ‘legal laws’. We know that society has not sorted this out for centuries and is not doing it even now – whatever progress has happened has happened because we made laws against them.
The reservation by custom and tradition also still continues. It is necessary to make laws to counter the long standing, deeply entrenched bias.
In reply to Indian Homemaker
The problem is that once laws like this are made, they’re dreadfully difficult to remove. Removal later on will be a very unpopular move for whichever political party is in power…somewhat like subsidies. People get used to them.
I feel we must bring laws into place only to ensure equality. Not to overcompensate. So it’s ok to have laws banning untouchability. But not laws giving untouchables extra rights. Gays in India are celebrating only because they’ve been placed at an equal footing with others, not because they’ve been given special privileges. Similarly, we must allow women the same rights that men have, but nothing more…
//I don’t feel the government should take into account social biases. For example, should gays be given special privileges that the rest of us don’t have just because there’s a bias against them? As it stands, the law merely gave them equal rights, not special rights.//
Each bias has to be dealt with on it’s own merit. If gays are banned from joining the military a law can be made to make sure they are not. If parents are aborting gay babies (just an example), or if they are being deprived education and being asked to accept daily violence and street-side abuse as a way of life – they definitely need laws to support them.
If they are asked to see serving their partner’s families as their goal in life and then asked to accept divorce without any maintenance – then the law must intervene.
The bias that women face is generally either not seen as ‘such a bad thing’ or actually seen as something that protects them. And yet the same people who say this also claim that ‘it’s a male dominated society’. And it’s not something new – it seems everybody was equal in Rome except the slaves and women.
I believe that the crux of the matter is economic. Many married women in India stay at home and derive their financial security from the husband. In some cases this is a personal choice, in others this is forced upon them.
When the man ups and leaves, as far as I know, unless she is divorced she can claim no legal recourse, other than restoration of conjugal rights. I think there should be a financial responsibility on the working partner for his/her non-working partner and children.
In a recent case of actor Prabhu Deva, who simply quit his marriage and began living with his girlfriend, his wife and children received no proper financial support until there was a divorce.
The man in this case does not divorce his wife, but stays with someone else. This is not bigamy, but is essentially a way of getting around it. It leaves the abandoned partner with very few options. I agree that this law needs a major overhaul and instead of looking at this with gender bias, it should probably take the economic situation into consideration.
In reply to Careless Chronicles
Hmm…in the US at least, such cases fall under abandonment/desertion no matter who leaves – the husband or the wife. Abandoned spouses get a lot of benefits such as the possible legal rights to the house in which they are staying, full custody of children, maintenance etc. So it’s quite a risky proposition for one parter to just get up and leave.
Why not have the same system in India? Sounds pretty fair to me.
In reply to bhagwad
I agree. That makes a lot of sense. Sadly, our police and judiciary are both peopled with narrow-minded and prejudiced people. Once the junta are able to take action for mental trauma caused by their comments and responses, perhaps we’ll have fewer “This is not America” comments in our Courts.
In reply to bhagwad
I think this is something we would benefit from in India also.
I remember reading somewhere that the use of the word “adultery” was not permitted in many US states in legal literature and was referred to simply as “criminal conversation”! Not sure if this is true though!!
In reply to Bharath
No, I don’t think that’s true :)
I think it goes back to the question of appropriateness of personal law. Do we need law to govern how we want to live our personal lives?
Thanks for bringing up this topic. It’s about time we discussed it.
On topic, my views of what is “right” vary a lot and make it difficult to define a “legal rule” if I had the freedom to craft one entirely to my taste. I recognize the sanctity of marriage as I have understood it. If somebody wants to have “open” relationships while calling one of them a marriage, or one of them is a legal union, it feels really weird. My criteria in this case would be the sanction of the spouse: if the spouse in a legal marriage is aware of and freely consents to his/her partners extra-curricular activity I guess its okay though I find it difficult to believe any spouse will actually do that ( I would presuppose that the spouse is not okay with this).
Now as far as the person committing adultery is concerned (whatever gender) in the most likely case that they are doing it without the knowledge of their legal partner, if its a working marriage its simply wrong. While I dont feel it should be a crime I can kind of get the desire to criminalize it… The flip side of this equation is that it should be fairly easy for anybody to quit a relationship that is not working for them.
A working marriage can be loosely defined maybe on these lines: both partners expectations are being met within reason and neither has any grave complaint about the other.
This definition can cover a fair range of dissatisfaction to unhappiness: “not really the perfect mate” “not fully expressing my personality” and still be classed “working” IMO.
There can be major strains that fall out of the “reasonable” bounds. while I would still like such couples to separate first I can understand if one or both stray.
There can be adventurers/ adventuresses or thrill seekers who are not satsified even with good relationships. Maybe they want to have multiple partners or the challenge is lost after the current partner has been wed or something. I wouldnt be too sorry if these guys/ girls spent a night or two in jail or face criminal charges :-).
It is fairly obvious though that I cant craft one single law contoured like this. Since I cant get to it as one individual, I guess its even tougher for a whole society to agree.
thanks,
Jai
In reply to Jai_C
Interesting points. The key is, does the law view marriage as anything other than a legal contractual relationship between two people? In most states of the US for example, the court isn’t concerned with who is living with whom. The only question is do they want a divorce or not?
Kids complicate matters. But as far as marriage goes, the only connection to kids is that the husband is presumed to be the father and parents have legal obligations towards their children.
Ultimately I feel that adultery is a personal problem between two people and one shouldn’t approach the law for making a poor choice of spouse.