Do You Know What Can Happen if You Cheat on Your Husband in India?
By Divyani Rattanpal
Heavy-handed — both religion and law are united in their approach in dealing with female adultery. Our revulsion for the adulterous woman has been inherited from religious scriptures, and has carried on well unto the modern times.
Was it not Sita, after all, who had to give Agni Pariksha? Or Ahalya who was turned into a stone for having illicit relations with Indra?
They may have their differences, but Jewish, Islamic, Christian and Hindu traditions are all unanimous in their condemnation of the adulterous wife. The law of the nazirite calls the wife suspected of sexual infidelity, a sota. To confirm suspicions, a ritual was prescribed whereby the suspected wife was made to drink a magic potion, “the water of bitterness”. If she was not guilty, the water will not hurt her; but if she had sinned, “the water that causeth the curse shall enter into her and become bitter, and her belly shall swell, and her thigh shall fall away.”
On the surface, it may seem that the Indian woman is free from the curse that would have followed an adulterous act (or even the allegation of it, in medieval times), it actually is the same story, only repurposed legally. Indian law is strange in the sense that it doesn’t prosecute but persecutes the adulterous woman, say lawyers and legal journalists.
The wife who is charged under the allegation of being adulterous cannot be made liable to enjoy the “ripe fruits” of maintenance. Section 18(3) of the Hindu Adoption and Maintenance Act 1956 clearly states that a wife indulged in the relationships of adultery is not entitled to ask for maintenance. And even the preponderance of doubt in the virtue of a married woman, is sufficient to deny her maintenance if the couple is involved in divorce proceedings.
In lay terms, all the husband has to do to rid himself of the burden of maintenance is to prove that the wife was guilty of adultery.
An Ego Tussle Between Two Men
This stems from the fact that Indian law relating to adultery is premised on the outdated notion of “marriage”, where the “wife” is treated merely as a chattel of her husband. The act of adultery committed by a married woman with another man is nothing more than an ego tussle between the woman’s husband and the other man, one in which the outsider man has trespassed into his property.
This is evident from the fact that Section 497 of the Indian Penal Code (IPC) holds the outsider man and not the (adulteress) “wife”, as solely responsible for the sexual liaison.
Who Gets Bigger Leeway?
The Law Commissioners in their Second Report on the Draft Penal Code, concluded that “regarding the condition of the women in this country, and in deference to it, we would render the male offender alone as liable to punishment.”
Of course, this legal immunity, that somehow shielded the adulteress wife for her willing participation was contested.
But here’s the thing: the same Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with an unmarried woman, in a way making the relationship immune from legal hassles, although in divorce proceedings, this can amount to “cruelty in marriage”.
The Modern Trend: Decriminalising Adultery
The modern trend is to decriminalise adultery, with South Korea being the latest Asian nation to decriminalise adultery.
All European nations have decriminalised adultery and, while it is not considered a criminal offence in most Western parts, it still has legal consequences, especially in divorce proceedings. Adultery remains illegal in 21 states across the US, as the New York Times reports. The laws “extend back to the Old Testament”, when women were treated as male property.
As Indian law goes, the adulterous woman actually oscillates between being the victim, having fallen prey to the other man’s charms; a toy, that can be contested by two warring parties, as all properties can; and an unchaste party, that can be denied any claim of maintenance.
Society and the law have never bent any rules on the chastity of women since the times of Sita, it seems.
(This story was first published on The Quint.com.)