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The debate whether the Law against adultery favors women is an age old one. I have been hearing this argument right from the time I was thrown in the midst of Lawyers.
When I read
Prerna's post about it some time ago , I was reminded of
Ankur's post on the same subject. And I think they have dicussed the issue very well.
But when I asked a few lawyers their opinion , I got looks that said 'oh !not the same old one' .
Though the debate is an old one , there are many questions still unanswered.
The question that interested me is 'what does the law attempt to achieve by this section'
Adultery is dealt in two ways by Indian Law. Under Penal Law its a criminal offence and in Matrimonial Law it can be used as a ground for divorce and nothing more (though it has a great impact on the wife's right to maintenance ).
Both under Penal law and Matrimonial law, adultery is an offence against marriage.
But the difference between the two is , under Penal Law the adulterer is the accused and
is penalised while the wife (adulteress) goes unpunished.
In the matrimonial court when a petition for divorce is filed on grounds of adultery,
the main relief is sought against the spouse and not against the adulterer though he may
be a party to the proceedings.
And the glaring difference is that in the Penal law the right is conferred only on the husband while in Matrimonial law both the spouses can use adultery as grounds for divorce.
So Matrimonial Law makes complete sense as the discretion of living with the erring
spouse is given to the wronged spouse and relief can be sought using this as grounds.
The futility of the section in Penal Law
What is most significant in the penal offence of adultery is that invariably the husband takes his vengeance against the third person, i.e. the adulterer .
The criminal action is filed not against the wife but against the adulterer. The wife is not guilty of offence, not even as an abettor.
The adulterer is considered 'an outsider to the matrimonial unit who invades the peace
and privacy of the matrimonial unit and poisons the relationship between the two
partners constituting the matrimonial unit.'
Thus it shifts the entire blame on the third person , and in the process the erring wife
goes scott-free . The wronged husband takes it out on the third person and not his wife.
Is'nt this akin to asking a child that has fallen down to hit the floor with all its might
to ease the pain ? The child shifts the blame on to the floor and feels happy that
things are taken care of , till the next time it falls down. It goes on and on until the child
learns to walk properly.
Similarly the Law should not confer this futile right on the husband but expect him
to deal with his marital problems within his home. He has no right to blame a third person
while his wife is part of the scenario. The ultimate shame a husband can face in matrimony is an adulterous wife and blaming it on a third person is like drenching himself in filth.
He can either condone the offence in a spirit of 'forgive and forget' and live together
or seperate by approaching a matrimonial court and snapping the tie by securing divorce.
Adultery under Penal Law should be repealed as being useless , outdated , obsolete and downright illogical.
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