Divorced from reality

Laws express the spirit of the times in which they come into being because they represent an important social consensus; which is also why they date so easily. Many of the laws that govern society in India today, including those that impinge crucially on some of the most personal aspects of our lives, go back in letter and spirit to Victorian England and the colonial dispensation. The relevance of an exercise like the scrutiny of Section 497 of the Indian Penal Code, which the National Commission for Women NCW was asked to undertake, hinges precisely on this. We need, in fact, to go through our entire compendium of laws with a fine-toothed comb and root out anachronistic legislation.

Section 497 considers adultery a criminal offence. Criminal justice systems more in sync with the times have rightly come to view adultery as a civil offence and a breach of trust. In the UK, for instance, the aggrieved person is entitled to claim damages for the offence. The NCW is therefore entirely in the right to demand that adultery now come to be regarded a civil, rather than a criminal, offence in India. Adultery, incidentally, is the most serious ground for divorce in Indian jurisprudence. The other odious aspect of Section 497 is that it tacitly constructs the wife as a passive object in her husband8217;s possession and expressly protects his right to her sexuality. In fact, if the husband had consented to the said relationship within the meaning of this Section, it would not qualify as an 8216;adulterous8217; one.

The NCW, while it recognises this, falls into the same trap when it portrays women as a victim of male sexuality, whether within a marriage or within an adulterous relationship. It is time for Indian laws to stop portraying women as victims, and invest them instead with agency and individual rights.