Vaguely empowering: Is adultery a choice for women?

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The Vogue Empower ad has been correctly (and hilariously) torn apart by feminists. It's largely amusing more than offensive, though as a queer feminist I do have a question as to whether the script writer genuinely believes that women - or for that matter anyone - looks upon sexuality and sexual preference as a "choice". That said, on the hetero-normative internet, there seems to be most outrage over the line articulated by Deepika Padukone, that whether a woman wanted to have sex before marriage, within marriage, or outside of marriage - it was her "choice". Is adultery a sign of female empowerment, they ask, while s**t-shaming every single woman who has taken part in this magnum opus.

Now, let's not even invoke the whole misconceived assumption that monogamy is the be-all end-all of existence. Even if the video is arguing that women can exercise choice in sex outside of marriage, it's actually running contrary to Indian law, and even the Supreme Court.

Section 497 of the Indian Penal Code which criminalises adultery, reads as follows:
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.

Adultery isn't just wrong. It is a crime. Adultery as a wrong, first gained legal status in the Code of Dooms, a set of secular laws promulgated by Aethelberht, King of Kent, in around 600 AD. Under this code, adultery resulted in the interloper having to pay the husband his wergeld (bride price) and procure a second wife for the husband with his own money, and bring her to the other man's home. It was only in the 10th century, when Christianity began to spread over Europe that adultery became a sin as well as a wrong against the husband. Jurisdiction in the case of crimes of adultery was delegated to the ecclesiastical courts under Duke William of Normandy. This coincided with an increasing attempt on the part of the State to be the exclusive mechanism for the delivery of justice by the co-optation of private vengeance, which required the state to act in a way that would render the need for private vengeance unnecessary.

Despite initially believing that criminalisation of adultery should not continue in the Indian Penal Code that he was drafting in the late 1800's, Lord Macaulay ultimately resolved that:

"While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering... (the) condition of the women in this country, in deference to it, we would render the male offender alone liable to punishment".

The constitutionality of the criminalisation of adultery was challenged soon after Independence in Yusuf Abdul Aziz's case (1951), where Justice Chagla sympathised with Macaulay's view on the condition of women, and went on to state that "Women ...were more often than not mere tools and passive tools in the hands of men and placed as they were it was impossible for them to resist the blandishments that men might hold out against them. It was with this background and it was in the context of this society that Section 497 was enacted." Justice Chagla also agreed with the contention raised that "...the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that this offence is only cognisable with the consent of the husband emphasises that point of view." The poor victim of seduction was protected by the Supreme Court, and for nearly 30 years, this was accepted as the prevailing view.

In 1980, the Supreme Court agreed that perhaps the time had come to have a relook at the provision relating to adultery, "...particularly in the light of the alleged social transformation in the behavioural pattern of women in matters of sex", in Soumitri Vishnu's case. It turned out to be more of the same. Nalini Chidambaram's arguments were shot down by Justice YV Chandrachud that "... It is commonly accepted that it is the man who is the seducer and not the woman" and that "The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime." To the argument that perhaps all extra marital relationships must be seen with equal revulsion, the response was matter-of-fact.

"Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried women. It only makes a specific kind of extra-marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The Legislature is entitled to deal with the evil where it is felt and seen most : A man seducing the wife of another."

In 1988, the Supreme Court revisited the issue in V. Revathi's case, when the provision of the Criminal Procedure Code, Section 198 (2), which permitted only the husband to file a case against the interloper', was challenged. The Court did not differ from the earlier opinion, and rather elaborated that adultery was "...the offence committed by 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." In other words, the meddlesome interloper who disturbs what could only have been a peaceful and tranquil relationship.

If that isn't enough, the Court holds that the protection of a woman from prosecution was, in fact, "reverse discrimination in 'favour' of the woman rather than 'against' her." Of course.
To be fair, much like the Naz Foundation ruling that would come later, all three Judgements left it open to the Legislature for the reconsideration of this provision in light of "modern" behaviour, but despite the Law Commission of India recommending its deletion, the provision remains on the Statute. Of course the criminalisation of adultery is absolutely ridiculous, as is the criminalisation of any consensual sexual act - but the provision in its present form ensures that women continue to be deemed to not have agency to consent to sexual intercourse outside a marital relationship. Marital rape isn't rape, extra marital consent is apparently irrelevant, because it's not really consent. Consent implies responsibility for one's actions, it implies agency. Funnily enough, on the other hand, women who say no are thought to mean yes, and when women allege non-consensual sexual intercourse, the burden of proving the same seems insurmountable.

For everyone outraging about the immorality' of the advertisement - much of what is being outraged about the Vogue transcript says is absolutely true in law. For instance, everyone appalled at the notion of a woman choosing to have "your baby" should learn that on its enactment in 1971, the Medical Termination of Pregnancy Act created no obligation to obtain no-objections from a male partner prior to terminating a pregnancy, and in that respect, it was an extremely progressive legislation. For at least the initial duration of a pregnancy, when a woman was deemed to have the capacity to make this decision, the decision was hers alone as regards its termination.

But attributing agency to women to actively participate in an extra marital affair? Be still my heart - can we hope that the sale of designer wear can help pay advocate fees for a Round 4 at the Supreme Court?

The author is a lawyer and tweets at @mumbaicentral