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Sunday, September 21, 2008

Adultery should be criminal offense

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I am surprised that adultery is not criminal offense prosecutable by law in India or elsewhere. Adultery is ground for divorce in civil courts and for settlement of marriage property, yet there is no recourse under law for punishment under adultery. If it were to be so, then also, divorce will necessarily follow since it's impractical that couple continue to live together after one successfully sues another for adultery. Yet, spouse in question will have to suffer imprisonment before venturing out for new marriage or life of singleton. If couple reconcile after extra-marital affair then victim needn't sue his/her spouse, but s/he should have option to do so.

Why am I proposing a draconian view on a matter which not necessarily follows from criminal intent? I admit that some causes of adultery are possibly worth sympathizing (viz. neglect/violence by other spouse). However, said spouse has right to seek divorce and then pursue other love interest. If cause is simply love outside of wedlock then also existing relationship should be terminated before entering into new one. Adultery hurts its victim (other spouse) mentally and emotionally, and is detriment to children too, if any, and there should be recourse under law to persecute the offending party. Absence of such laws is cause of so many hate-generated violence where victim of adultery takes law into his/her hand to punish offending spouse and often involved third party. This should specially be so in developed societies where marriage is contract of free will and while I espouse the right of each to enter and exit the contract of own volition, violation of terms while in contract should incur penalty by state.

Edit 22/09/2008: Follow discussion in comments for better explanation.

Edit 19/12/2008: In light of new information (thanks SS) about existing law on adultery (IPC 497) I would like to clarify few things. I somehow feel that despite civil violation of contract there should be imprisonment and not merely penalty. I am not very clear about differences in Civil or Criminal law so if Civil law permits that, "civil law" should replace "criminal law" in above post. Existing law also seems very vague and incomplete and charges third party and not the offending spouse which was my main point.

9 comments:

Der said...

Why is it the government's responsibility to mete out moral judgments? This sounds a bit like sharia to me....

I am willing to bet there are no laws against it because the men who make the laws don't want to get in trouble for keeping a mistress.

Ashish Gupta said...

Marriage is like a contract, and recourse to contract violation is requirement for well functioning society and market. One of the reason companies are afraid to come to India and China is because they know that if something goes wrong, they cannot depend on Indian and Chinese courts to deliver justice in due time. Hence government is not making moral judgment, it is simply enforcing contract and providing penalty for breach. Suppose you buy a car and it's lemon, it is two party contract between you and seller, would you not go to government for redress?

Marriage contract explicitly prohibits relations outside marriage, through well known social norms both party agree to and are well aware of when they walk the aisle and promise to God in full public.

And let's not go into emotional arguments that men who makes law? Who is making moral judgment now? You? That may have been true in old ages but now society has enough representation to make laws concerning to all parties. In fact, I don't want to digress, but US divorce and child custody laws are so much more favourable to women that it's quite unfair actually. In any case, from what I know about US society, men and women both are equally likely to have relationships outside marriage, so it's not just man who keeps a mistress. And my point holds everywhere including India. In fact, if you so believe that man keeps mistress, you shouldn't mind such law.

To sum up, your both sentence are contrary. And there is no moral judgment made out by government in enforcing a contract.

Der said...

Marriage is a contract in the United States. But breaking a contract is not usually grounds for criminal offense unless fraud is suspected. More often it is a civil offense. This is why your post sounded like a moral judgment to me -- you are calling for a penalty beyond the scope of a breach of contract.

The car/lemon analogy does not go far with this argument, either. You can have a spouse who is relatively good for many years, has an affair one time, and realizes what a stupid thing it was to do. I would not call a car that broke down once a lemon. Granted, there are people (of both genders) who are chronic cheaters, but that would fall under the category of "fraud", at least how I see it. Getting married with the intent to break the contract before it is ever agreed to is my definition of fraud.

Men in power are known for having affairs in the United States. I am not certain if the situation is similar in India. But I don't see why questioning those who make laws is an emotional argument? I question my senators constantly for voting themselves raises and free health care while the rest of the country has to fend for themselves. And to ignore the nature of people in power (regardless of their sex) is illogical, at least to me.

That being said, unless the adultery is same-sex oriented, isn't there an equal number of men and women involved? Adultery itself is not an act whose blame lies squarely on the shoulders of either sex.

Divorce and child custody laws are no longer blatantly slated towards the women. Either partner can sue for divorce for almost any reason, and if the other partner objects it usually doesn't matter; it only slows down the proceedings. Children often choose which parent they want to live with if they are old enough to make that decision unless one parent is deemed unfit. Divorce and child custody has become like every other part of our law -- as long as one has enough money to afford a powerful lawyer, anything is possible. The only part in the law where I can still see blatant unfairness towards men is in regards to pregnancy -- it is solely the female's right to choose whether or not to have the child or to abort, even when the couple is married. But that's an entirely different kettle of fish.

Ashish Gupta said...

Thanks Der for continuing the discussion.

I admit my unfamiliarity with differences in civil and criminal offence. What I probably meant was Civil offense. Or in general, right to sue and get penalty for violation, whichever system of court it is in. I am not even speculating on amount of penalty.

Now, if you had spouse who only did adultery once, you are allowed to not sue him, that's your prerogative. But you should have opportunity and recourse under law to be able to, if you want to.

My original claim was sex independent so it's immaterial who is involved in adultery. My response to your comment was based on accusation on men. If equal number of men and women are involved, then both should suffer penalty under their respective marriage. If one party is single, then it's not adultery for him.

Fraud may be getting into contract with intent to violate (I don't know technical terms) but breach is a breach even when their was no original intent. That is original intent is immaterial, act of breach is.

By the way, legal marriage is a contract in most societies, in India too. Just because we don't sign papers doesn't mean it isn't. State benefits married people, makes laws for inheritance and child custody, which are different than for non-married people.

Holding your senator responsible is different thing than calling all laws as male-made. If you still believe that, well, I too wouldn't mind fairness and equality. And I agree 100% that father too should have some say in abortion rights, which is unfortunately not the case in many countries. My one post on very early on reflects this bias.

It seems to me that there is some consensus that violation of marriage contract should be penalizable, in whichever system of court. Such laws can and should be made, and there should be equal gender representation in forming such laws.

Der said...

Ashish

I didn't mean to imply that marriage is not a contract in India (or anywhere else). I only spoke of USA because I am only familiar with USA marriages (and even that varies a bit from state to state).

As an aside, the US military has rules against adultery, and anyone who has adultery (and this includes a single person who has sex with a married person) can be punished under UCMJ (Uniform Code of Military Justice). This usually involves a loss of pay for a set period of time, or loss of rank, although the penalties can be more severe. (Also this only applies to the military and not their civilian spouses.) http://usmilitary.about.com/od/punitivearticles/a/mcm1342.htm

Ashish Gupta said...

Yeah, I know, I didn't read that you didn't imply that, I just mentioned that point should in most societies.

SS said...

I am a little confused: Under IPC Section 497, adultery in India IS punishable by law! It is a criminal offense and you can be jailed for upto 5 years. It's an old law which is now being reviewed because it does not allow women to be charged with adultery. Also, it does not allow women to take their husbands to court for adultery.
There are also calls to decriminalize adultery and make it a civil offense.
There's plenty of stuff about this on the web. Check it out!

Ashish Gupta said...

@SS. I will check out IPC497. Though if law doesn't allow woman to charge their husbands and doesn't allow woman to be charged, who gets to charge husbands? Since I had never seen application of this law, my post was accordingly, not aware of this technicality. All I've seen if people seeking divorce on grounds of adultery or taking personal revenge.

SS said...

Yes, there is a law, imperfect as it stands. It has been discussed to death (me included. I have included several links in my post on this subject). It assumes the woman is akin to a man's "property". So, for example, if a wife is cheating on her husband with another man, the husband gets to file a complaint against that other man! Implying, it's a problem between the men to sort out. Imagine!

You should read the law. It would be hilarious if it wasn't so sad. Read it with IPC 498. It will give you a better picture of how women were viewed in society when this law was made.

And yes, adultery is grounds for divorce, which both the husband and the wife can use.

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