The sadness of law is that it is often treated as a technical discipline, where judgments are read like formal texts. Yet law like food or medicine smells of society, its constraints and contradictions. Law as a text is never complete without the societal context. Reading it this way one senses that the relation between law and social change is an ambiguous and ambivalent one. One senses this in the recent Supreme Court judgments on adultery.
Adultery is an almost primordial word. In Islamic law, in Shariah and not the Quran, the women can be stoned for adultery. Many fundamentalist states, including the Taliban, enforced these proscriptions merely because a woman was found with a man who was not her husband. The Mosaic traditions, which include the 10 Commandments, was usually harsh and even Jesus whose judgments had a gentler New Testament vein, was severe on adultery. A covetous look itself became an act of adultery. Adultery rather than being a self-reflective comment on the relationship was more a comment on the position of women in society. As women struggled and society changed, law had to respond, but often the response was still archaic.
Michel Foucault, the great historian of the body, makes two interesting points in his Discipline and Punish. He points out firstly that the body becomes a site of tyranny and oppression. He then adds that the moment reform and emancipation becomes a moment of surveillance, governmentality and legislation, they add to the ironies of freedom. All this becomes clearer when we study adultery.
One, first of all, realises that adultery is a text that has to be located in the changing context. Second, one has to realise the discrepancy between change and legislation to back that change. The legislator and the interpreter may still carry the residue of the past and may seek to present it. The writings of Foucault and Lawrence have shown us that adultery often reflects a patriarchal mindset. As change is introduced, it becomes paternalistic but does not abandon old assumptions. Foucault and Stone point out that change in the nature of adultery has emerged on three axes. First, the changing notion of the body and the idea, and the idea of women as property. Second, the changing idea of marriage and love, and third, the emancipation of women. All seemed to establish the equality of men and women and adultery seems to be a conceptual backwater of such change. Today love is supposed to create a sense of equality where relations are seen to be reciprocal. A relationship is now an act of personal or individual commitment. The women challenge the idea of seeing themselves as chattel or property. The language of honour to the language of trust, duty to a sense of enjoyment. The question is, do these changes get reflected in courts decisions?
In Revathi vs Union of India (1988) the court rejected the challenge that adultery law was discriminatory. It argued that the target of the law was not the husband or wife, but the outsider invading the fortress of bliss called marriage. In fact, the metaphor of the fort covers marriage, property and patriarchy, and sanctity of each plays the same conservative role as security does today. The court portrays itself as a defender of institutions. But what feminists and each suffragette pointed out is that linguistically and legally it seems to have change to the legislature.
The court’s attitude reflected a romantic paternalism, which stems from the assumption that women, like chattel, are the property of the man. Dhananjaya Y. Chandrachud in his reply acknowledges asymmetries, but he feels that some asymmetries are more equal than others. Such sleeping asymmetries might affect policy but not the Constitution. He suggests we let them be. The argument might be technically correct and yet one senses the latent sense of patriarchy. He feels change and the responses to change as far as adultery goes belongs to the legislature and not the judiciary. Most judgments either read adultery as an extension of property laws, including the women’s body, as a piece of patriarchal property or arguing that adultery threatened the sanctity of marriage. The judgments oscillated between property and patriarchy. Even genuine responses to change carried the latent rhetoric of patriarchy.
Activists arguing for a consonance between adultery laws and the emerging ideas of freedom and sexuality are referred to the legislature. Women’s speech or women’s interpretation impinge little on the court more keen to control stability by focusing on the control of sexuality and women’s bodies. The idea of sanctity is played off against any search for equality and freedom. It is this contradiction, this hypocrisy that women are challenging today asking for a consideration of freedom and consent than a patriarchal investment in chastity. In fact, human rights groups suggest that adultery should no longer be treated as a criminal offence. The UN working groups have suggested that when adultery can be the basis of divorce, it need no longer has to be the basis of imprisonment. The court has to respond to the idea that adultery law is archaic. But that will require a change in the mindsets India is far from. Adultery now has to be seen not within the context of property and patriarchy but in terms of new notions of freedom and consent. The court has to respond to this new discourse or otherwise sound archaic or futile.