Family is an ideological structure which gives life to a household and the kinship of the people staying under that household, by naturalizing and universalizing the type of relationship the structure wants them to maintain
It was argued by Ratna Kapur in her book Subversive Sites: Feminist Engagements with laws in India, that familial ideology brings a private character to the family which in turns shapes the laws in such a way that it doesn’t interfere with the functioning of the family. The state has tried to distinguish between the public/private spheres of the family, while making laws related to the “private” functions of family. The state, by interfering with the privacy of the family has criminalized adultery. However, it is a non-cognizable offence, which means that the crime is committed in the private sphere of a family and hence it should be acted upon only if the aggrieved husband wants to initiate criminal liability.
A patriarchal family at first nurtures an individual by specifying gender norms to her/him. A woman in a patriarchal family has multiple roles to play of a mother, a wife, a sister, daughter-in-law, daughter etc. These roles are assigned based on the gender stereotypes already prescribed by the patriarchal society. A mother is supposed to take care of her children and should have a loving nature, a good wife is a chaste wife, who is obedient to her husband and she is responsible for all the house works. Kapur wrote that such roles are universalized and naturalized because of her biological function of reproduction. The adultery law exists after considering such roles of the woman which the families of the society have put up on them. Let us look at some of the cases in which the proceedings have been influenced by this idea of ‘family’.
Section 497 of the Indian Penal Code punishes a man for having sexual intercourse with a married woman, without the consent of her husband. One key point in this section is that it doesn’t consider the wife as an abettor of the crime. The court in the case of Yusuf Abdul Aziz v State of Bombay held that this provision is for the protection of woman. In Sowmithri Vishnu v Union of India court said that this section is to protect the sanctity of marriage and the woman is not held as an abettor as she is the victim of the seduction done by the man. Such decisions put out in open based on the assumptions about a woman by a patriarchal set up. Protection of a woman as discussed in the case of Yusuf Abdul Aziz was protection of a “good wife’s chastity” from the outsider. And a wife is presumed to be chaste only when she doesn’t indulge in sexual relationship with anyone other than her husband. The court meant the same on the point that the woman is a victim of the adulterer’s seduction. However, it seems that the court’s judgment was clouded with such stereotypical view of a woman that they completely mistook the meaning of seduction. Seduction is defined as the act of enticement of a person to sexual intercourse. Enticement doesn’t mean that the woman has submitted to the seduction, it just means that the woman is attracted towards the adulterer and whether she is to indulge in sexual intercourse with this person is yet to be decided by her. To say that woman is a victim of seduction is assuming women to not have any agency over their sexuality.
Adultery laws are such that it doesn’t allow a woman or a man to sue their adulterous husband and wife respectively. This was discussed in the case of Vinod Samat Patariya v State of Gujrat, where the court explained such a position exists so that “social goodwill” is promoted by giving the married couple a chance to “make up” the matrimonial tie rather than taking each other to criminal court. This maintenance of social good establishes that the courts are concerned for the protection of family. In case of adultery, the law has interfered with the private sphere of the family only to punish the outsider, who has defiled the marriage. But as per the arguments made till now in this article, such a provision causes grave injustice to the adulterer, as the wife had the equal malicious intention to defile her marriage.
In the same case the courts had held that a man cannot be sued in adultery for having sexual intercourse with an unmarried woman. They easily reached to such a conclusion because the elements of the law are such that: a) Adultery should be committed with a married woman b) Only an aggrieved husband can initiate proceedings. Denying the woman, a right to initiate criminal proceeding against her husband who is indulging in sexual intercourse outside the marriage and then protecting such person from adultery if he indulges in sexual intercourse with an unmarried woman suggests that this law considers a very skewed definition of sanctity of marriage. Their definition of marriage gives total control to the man
. Whether a marriage is defiled or not is first decided by the man (as it is only upon his complaint, a criminal proceeding shall initiate) and then by the court.
If the law was concerned with the sanctity of marriage, then it would have given a woman right to sue her adulterous husband and on the other hand it would give the man a right to sue his adulterous wife. This law has nothing to do with protection of sanctity of marriage but about protecting the right of proprietorship of a husband over his wife’s sexuality from an outsider. In simple terms, the law is about punishing the man for trespassing over the man’s property (his wife). This law presumes the wife as an object for sexual pleasure only for the husband.
The state is blind folded and does not want to recognize women’s rights in the private or public sphere. Based on the arguments made in this article, this law is nowhere protecting women; rather it is harming them by submitting to the ideologies which have formed them. The adultery laws need to be changed in such a way that it becomes more just and gets free from the influence of a patriarchal familial ideology.
Ratna Kapur, Brenda Cossman. 1996. Subversive Texts: Feminist Engagement with Laws in India. SAGE Publications.
Sowmithri Vishnu vs Union of India AIR 1985 SC 1618
Yusuf Abdul Aziz vs The state of Bombay 1954 AIR 321
Vinod SamantaPatariya vs State of Gujrat
 Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
As per Merriam Webster Dictionary.
 See: Section 497 of IPC and Section 198 of CrPC.
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