India Addresses Sexual Inequality

As India moves slowly towards liberalizing sexual relations, debate is now raging over recent recommendations by a government commission that seeks to equalize penalties for men and women in cases of adultery – something women’s rights groups regard with dread. While currently women can’t be charged with adultery, it is hardly a privilege.

The idea that women, especially in poor rural areas, could charge their husbands with adultery is probably a reach too far. The big concern on the part of women’s rights groups is that equality would give husbands a potent new weapon to get rid of their wives. As an example of the danger to women, one section of the law – which the commission is seeking to reexamine -- still defines an Indian wife as a male property or chattel.

With the federal government awaiting responses from different state governments on the issue, the Maharashtra government has expressed its willingness to incorporate the controversial amendment.

As matters stand, the Indian Penal Code now says only a man who commits adultery can be tried for the offense. Any woman involved is regarded as the victim and not the perpetrator, which keeps her out of the ambit of any punishable offence. By definition, the code says any man who has had sexual intercourse with a married woman without the consent or connivance of her husband can be held guilty and is subject to up to five years in jail, fines or both.

The National Commission for Women (NCW) has vehemently opposed the recommendation, saying that while there is urgent need to herald a sense of gender equality in all areas including adultery and marital laws, a much wider debate is necessary, particularly because of the danger to rural women, already socially disempowered, who are often victims and forced into permissive situations such as adultery and who can be further exploited.

In this context, the women’s commission says, changes must target saving victims and marriages from collapse. Rather the commission suggests changes to the Criminal Procedure Code that would allow the wife of an unfaithful husband to prosecute him for promiscuity. The commission proposes that adultery be treated as a civil offence to facilitate compensation by the aggrieved parties.

Legal analysts also point out that there have also been instances where the law has been used by divorce-seeking husbands to fabricate cases of adultery against the wives they want to get rid of.

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There is plenty of truth to such assertions as women in India continue to be victims of the worst crimes. While statistics are notoriously unreliable and can be twisted to support almost any position, official statistics show that rape is the fastest growing crime in India compared to murder, robbery and kidnapping. Often rising rape statistics are driven by rising female awareness of the injustice done to them and the fact that they can bring charges. Nonetheless, 20,737 cases of rape were reported in 2007, a 7.2 percent increase over the previous year, with the central Indian state of Madhya Pradesh, one of India’s poorest, the "rape capital", with the biggest number of such crimes.

Vehement protests have been voiced at various levels for giving more teeth to the “The Protection of Women against Domestic Violence Act 2005”, to truly empower a woman to quell the harassments that she undergoes throughout traumatic rape episodes so that the law doesn’t merely serve as tokenism.

To its credit, the Indian government has so far been steadfast in the harsh treatment of men who stray. A high-ranking official in the Ministry for Women and Child Development adultery said that adultery has to be treated as a criminal offence (for men) without which there could be no deterrence from behavior that breaks families.

It has been seen in most cases that men are the usual offenders and since civil cases mean long delays, adultery is to be treated as a criminal offence, said the official. Yet on the issue of adultery, some divorce lawyers and social activists suggest a radical change in keeping with the western system, wherein adultery is not treated as a criminal offence at all but as a social one.

They insist that adultery, if viewed from an obsolete, draconian and Victorian perspective, fails to achieve anything substantive. Developed western nations such as Finland, Sweden, Netherlands, Austria, Belgium and the UK do not see adultery as a crime. American laws on the subject vary from state to state and rarely is adultery taken to the level of prosecution, although in the US military it is a potential court-martial offence.

In the context of India steadily marching ahead among the developing world and making its bid to enter the developed segment, it is ironical to see it take a direction that should be viewed as not being in tune with the developed rest.

From the days of Macaulay, not much seems to have changed in the Government sense of social justice. Surprisingly, even England, which framed the penal codes in India in the days of the British Raj, no longer gives adultery the place of a criminal offence.

In changing times and global citizens, India would do well if it incorporates all ends of the debate and the social sensitivities for a more comprehensive and progressive handling of this chronic problem that has affected all societies, irrespective of time and space.

Priyanka Bhardwaj is a journalist based in New Delhi. She can be reached at priyanka2508@yahoo.co.in