Ever since the institution of marriage came into being, men and women have pondered on the attitude to be adopted in cases where there is a deviation from the bond.

Adultery has therefore occupied the attention of society for centuries. “To love and to cherish, till death do us part” (Book of Common Prayer) is one of the sacred cows of marriage, and the Old Testament (Genesis ll) ordains that a man shall cleave unto his wife “and they shall be one flesh”.

These are ideals set by every society for itself . But reality always does not conform to the ideal. And where reality departs from the ideal, some regulatory mechanism is required to restore harmony.

This is the problem that arises when the harmony of marriage is broken by the unfaithfulness of one partner in marriage. What should be the mechanism that ought to deal with such a departure, and when should it intervene? Lord Byron tried to make fun of those who regarded such matters with seriousness:

What men call gallantry,
And god’s adultery,
Is more common
Where the matter is sultry. (Don Juan l)

Hardly any society so far has taken such a light view of adultery. In some form or the other, every society provides some kind of sanction for violation of marital fidelity.

Religion and the scriptures came first on the scene; ethics came next. The law which has borrowed much from both religion and ethics was not slow in its response.

Legal measures to protect the institution of marriage against infidelity have varied from time to time, from place to place, from community to community.

Sometimes the laws have provided for stoning of persons guilty of marital infidelity. Sometimes they have provided for milder punishments.

Harsher laws have not survived in most countries, however. Probably their strict enforcement led to their end.

Only milder laws that present a considerable variety are found to have survived. The question always remained: should adultery be left to be dealt with as a marital wrong to be treated primarily as constituting a ground for divorce or as a crime?

The provision made by the law for dealing with adultery is testament to the determination of society expressed through its authoritative coercive machinery to put down marital infidelity.

There is, however, some confusion discernible in the law’s approach. This becomes apparent when one examines the matter in detail. The confusion starts at the beginning with the word “adultery” which has nothing to do with the word “adult” (full age).

Rather it can be said to be allied to the expression “adulteration”. Both have, in common, the connotation of a “mixture of impurity with what was so far pure”.

This element of debasing or degrading has not so much in mind the debasing conduct of parties who deviate from fidelity, as the aspect of confusion on parentage of children who may be born out of an adulterous union.

This emphasis on children and parentage necessarily involves an emphasis on i) the female who has been guilty as a party to adultery, and ii) the requirement that the female party must be married.

These two elements have the effect of obscuring the fact that adultery, taken to the widest sense, is a wrong which does not necessarily imply that it can be committed only by or with a married female.

It should be enough if one party is a married person, male or female. Its essence is deviation from the vow of fidelity implied in the very concept of marriage.

Every person who being married has sexual relations outside marriage without the spouse’s concentration or connivance is guilty of adultery, whether that person be a male or a female.

The confusion created by the wrong emphasis on the female married party in the etymological meaning does not have a mere theoretical interest. The wrongly placed emphasis has given rise to a narrow concept of the wrong of adultery in Indian law.

Taking a comparative view, one may find that legal systems exhibit a variety of responses in regard to adultery. In some legal systems adultery is an offence under the criminal law, but not a ground for divorce. In other legal systems, it is both an offence and a ground for matrimonial relief.

In India, the legal system until 1955 fell in the first category. Adultery was and still is an offence though its boundaries are drawn in an unduly narrow manner. In 1955, with the passing of the Hindu Marriage Act, the situation began to change.

Adultery became a ground for judicial separation. “Living in adultery” became a ground for divorce. The relevant provisions of the Hindu Marriage Act thereafter underwent amendments which have expanded the scope of this matrimonial wrong.

It is now a ground for divorce under the Act, and continues also to be an offence under the Indian Penal Code. Consequently, the legal system in our country at present falls into the third category mentioned above.

As per Section 497 of the IPC, a woman cannot be punished for the offence of adultery; only a man who has consensual sexual intercourse with the wife of another man without his consent can be punished for the offence.

Thus people who advocate the discrimination of adultery are those who define morality according to their whims and desires.

It may also be added that adultery as understood in the context of the Hindu Marriage Act is simple and comprehensive. It makes no discrimination between the male and the female.

Any spouse who voluntarily has sexual relations outside marriage commits this matrimonial wrong except where the other spouse consents or connives.

This simplicity and comprehensiveness is unfortunately not reflected in IPC where it deals with adultery as an offence. Avoiding the technicalities of legal language and putting the matter in plain words, the offence of adultery is committed only when sexual relations take place voluntarily between a married woman and a male who is not her husband, without her husband’s consent or connivance.

The main defect of this provision of the Penal Code lies in its confining itself to the situation where the female party is a married person. It leaves out the case where the infidelity is caused by a married male with an unmarried female.

Thus, it gives to adultery the unduly narrow scope of sexual relations with a married female rather than the generally understood wider scope of infidelity by a married person of either sex.

This is obviously anomalous as the situation where a married male is guilty of infidelity with an unmarried woman remains uncovered.

This is not all. The exception to the relevant section provides that where adultery is committed, the married woman shall not be published. This means that only the male party will be punished.

The framers of the Penal Code justify this on the ground that the social condition of women was very unhappy and the law ought not to add its weight to their misery by making them liable for a sexual deviation.

Also, an act which amounts to rape cannot be published as adultery. The reason is obvious. Such an act can be more appropriately dealt with under the more serious offence of rape.

So the present law needs reform. Any married person having sexual relationship with one who is not his or her spouse should be subjected to punishment unless the concerned spouse consents or connives.

This will remove the present unduly placed emphasis on the woman being a married person. It smacks of a woman being treated as chattel.

Of course, this suggestion assumes that society still wishes to treat sexual deviations as conduct appropriate for punishment. There are some who might think that sexual misconduct, where there is no force or coercion employed, should cease to be punishable.

This approach is not likely to be acceptable to Indian society in near future. Our society regards fidelity in marriage as a quality to be cherished most tenderly. It is imperative that the provision, such as it exists, should be reformed and infused with the glow of justice and placed on a rational basis.

The writer is former Associate Professor, Department of English, Gurudas College.