Adultery Law: Biased Against Women Or Men?

Adultery is a common word used in the present century. It is a voluntary sexual relation between a person who is married and other person who is not his/her spouse. Adultery in many places are viewed as an offense and it also affects the public morality and marital relationship.  This is spreading very wide and faster than it can be imagined.  Adultery is actually seen as the biggest sin in many societies.  It wrongly interferes with the marital relationship and thus lead to divorce.  Some centuries back, if we look at the history adultery was seen as a serious crime like a murder. If someone was caught or held having extra marital affairs they were either removed from the society or banished or had to go through humiliation. Adultery can be said to be the worse form to cheating his/her partner and the cruellest thing that can happen to a person.  But few people think that since a person is not receiving all his requirements at home so they go in search of love outside marriage and others criticize it saying it as the sickest habit a person can have to cheat on the martial partner. People knowingly commit the blunder of adultery. One of the famous English movie on adultery which was made was “The English Patient” that won 12 Oscar Nominations.  Another recent case of adultery was Bill Clinton and Monica Lewinsky scandal.

In USA adultery is one of the main causes which has led to divorces in recent years. This can cause many side effects on humans like emotional, physical and spiritual misery and also affect the persons who are closely related to them.  When a person commits adultery he/she must take into account the negative effect that they can have in the long term of their life.  A person can get into emotional rollercoaster when they commit adultery and later it may lead to loops, dips and drops in the life in many ways. We can consider that main reason behind one spouse cheating on the other can be that she/he may not be getting enough physical attention from their partner and thus may leave to find another person who would cover that gap in their life.  Richard Wasserstrom has argued his points in 2 arguments that adultery involves that one partner breaks the promise of sexual exclusivity that has been given to the other and there is always a deception in adultery as deception is not a good thing which leads to adultery.  Deception can be active and passively done. Since marriage is a commitment that has been made to love and cherish each other but when one person breaks that promise and loves someone else it is very painful to the non-adulterous person. Nowadays society has come up with different phrases like fooling around, having a fling or an affair to soften the word adultery. Adultery can kill the trust, intimacy, self-esteem breaks up the family tie, ruins careers and leads to destruction of human emotions.  As per Dr Willard Harley, a woman needs from her husband 5 main needs in the marriage they are affection, honesty, openness, conversation, financial commitment and family commitment. In bible it is stated nearly 69 times about adultery and also seventh commandment.

Many state legislatures prohibit adultery as a crime where some countries both persons are held guilty of the crime and in some places women is held under the law if she is married to someone else and commits adultery. Every state has their own way of punishing under this act one state may be greater and another it may be very low depends on the states laws. A person charged under this act can have a valid defense where they can state that their partner’s physical incapacity to have sexual relationship.  As per evidence acts when a person is found guilty or accused of adultery with another person, prosecutor has to show that such act happened with evidences. In Columbia District nearly half the states have laws on criminalising adultery and set up goals like preserving marriage, preventing illegitimate children and diseases, and safeguarding morals of the community to prevent adultery.  Although states have adultery laws but have failed to prosecute people for adultery does not make it invalid or unenforceable.

All religions like Christian, Jewish, Islamic and Hindu condemn the act of adultery. In Indian Penal Code Section 497 and 498 states about adultery and punishable with up to five years’ imprisonment under Section 497 of the Indian Penal Code, 1860.  Law Commission of India undertook a comprehensive revision of the IPC, culminating in the 42nd Report which provided information about the legislative history of Section 497, and offered a comparison with the position in France, England, and US. The Justice Malimath Committee in 2003, inorder to make reforms in the criminal justice system suggested changes to make Section 497 gender-neutral, but not yet implemented, the inherent gender bias in the Indian adultery law still continues. The Supreme Court of India and  different High Courts through its various decisions upheld that sec.497 is constitutionally valid. Justice S Nagamuthu of Madras High Court, said a divorcee would not have any right to claim maintenance if she “committed breach of the sexual obligation she had before dissolution of her marriage”. A woman divorced on the ground of adulterous conduct would also not be entitled to alimony from her former husband. Proving adultery can be of either direct proof or indirect proof. Direct proof can be like photos or videos of adulterous act by the parties. Indirect proof can be circumstantial evidence like hotel records and travel details can be given in court as proof of the act by the parties.

Recently South Korea has brought up change in the laws on adultery where it has decriminalised it and thus revoking the punishment for a cheating spouse which was earlier for up to 2 years in jail.  The law that was prevailing for 60 years has been changed and made unconstitutional.  This landmark judgement makes nearly 5,500 people as innocent and the charges on them can be removed who were convicted since 2008.  But there are many opposition to this judgment where conservative people still believe that the law should prevail to keep family ties together.  Many of the European countries have decriminalised adultery and so South Korea is following their footsteps.  Frances Raday who is a human rights expert is of the opinion that these penal codes usually treat women harshly than man and there is no equality found in it.  Many of the human rights organizations say that many Muslim countries use adultery laws towards women who are raped by men and punished for no fault of hers.  Similar incident can be seen in 2008 in Somalia, where a 13-year-old girl was stoned to death by 50 men under Islamic law for adultery without being any effort made to find her rapist. In 21 states of US adultery remains illegal but prosecutions are very rare in these cases and if they occur then punishment can be from $10 to life imprisonment.


References

  1. Adultery – Meaning, http://legal-dictionary.thefreedictionary.com/adultery
  2. Grounds for Divorce: Adultery, Grounds for Divorce: Adultery, by Lina Guillen, http://family-law.lawyers.com/divorce/grounds-for-divorce-adultery.html
  3. Adultery… Far Worse Than You Might Think, http://wordtruth.org/PDF/Adultery-Far%20Worse%20Than%20You%20Might%20Think.pdf
  4. An Economic Approach to Adultery Law by Eric Rasmusen, http://www.law.harvard.edu/programs/olin_center/papers/pdf/322.pdf
  5. The Good, The Bad, And The Adulterous: Criminal Law and Adultery in India,Abhinav Sekhri,  http://www.sociolegalreview.com/wp-content/uploads/2015/12/The-Good-the-Bad-and-the-Adulterous-Criminal-Law-and-Adultery-in-India.pdf
  6. Inherent Gender Bias in Adultery Law in India: A Critical Evaluation, Dr.Ashutosh Bairagi, IJSR – INTERNATIONAL JOURNAL OF SCIENTIFIC RESEARCH,Volume 4, Issue 5, May 2015, http://www.worldwidejournals.com/ijsr/file.php?val=May_2015_1432030288__37.pdf
  7. Woman divorced on ground of adultery cannot claim maintenance: Madras HC, 16th August, 2015, http://indianexpress.com/article/india/india-others/woman-divorced-on-ground-of-adultery-cannot-claim-maintenance-madras-hc/#sthash.dKt7f4TL.dpuf
  8. South Korea legalises adultery, 26th February, 2015, http://www.theguardian.com/world/2015/feb/26/south-korea-legalises-adultery
  9. Adultery: It’s not just the men 15thMay,2016, http://www.straitstimes.com/singapore/adultery-its-not-just-the-men
  10. Court rules: Adultery no longer a crime in South Korea,By Greg Botelho and K.J. Kwon, February 27, 2015
    http://edition.cnn.com/2015/02/26/asia/south-korea-adultery/

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