position of adultery and 498 A

BRIEF THEOLOGICAL AND CONCEPTUAL HISTORY OF ADULTERY : -

The word „adultery‟ derives its origin from the French word „avoutre‘, which has evolved from the Latin verb „adulterium‘ which means “to corrupt.” The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as „adultery‟.

This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the „property‟ of her husband; and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an „abettor‟, even though the relationship was consensual.

THE DOCTRINE OF COVERTURE Adultery, as an offence, was not a crime under Common Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over sacramental matters that included marriage, separation, legitimacy, succession to personal property, etc. In England, coverture determined the rights of married women, under Common Law. A „feme sole‘ transformed into a „feme covert‘ after marriage. „Feme covert‘ was based on the doctrine of Unity of Persons‟ – i.e. the husband and wife were a single legal identity.

In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite.

Almost all ancient religions/civilizations punished the sin of adultery. In one of the oldest, namely, in Hammurabi‘s Code, death by drowning was prescribed for the sin of adultery, be it either by the husband or the wife. In Roman law, it was not a crime against the wife for a husband to have sex with a slave or an unmarried woman. The Roman lex Iulia de adulteriis coercendis of 17 B.C., properly so named after Emperor Augustus‘ daughter, Julia, punished Julia for adultery with banishment. Consequently, in the case of adulterers generally, both guilty parties were sent to be punished on different islands, and part of their property was confiscated.

In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment – ―Thou shalt not commit adultery‖ – set out in the book of Exodus in the Old Testament. Equally, since the wages of sin is death, the book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress.

In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Paul‘s letter to the Corinthians. Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words, ―let him who has not sinned, cast the first stone.

In Bharata as well, in the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment. The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman. However, in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a vedic scholar, for three years.

In Islam, in An-Nur, namely, Chapter 24 of the Qur‘an, Verses 2 and 6 to 9 read as follows:

"The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement

And those who accuse their wives and have no witnesses except themselves, let one of them testify four times, bearing Allah to witness, that he is of those who speak the truth.

And the fifth (time) that the curse of Allah be on him, if he is of those who lie.

And it shall avert the chastisement from her, if she testify four times, bearing Allah to witness, that he is of those who lie.

And the fifth (time) that the wrath of Allah to be on her, if he is of those who speak the truth.

What is interesting to note is that if there are no witnesses other than the husband or the wife, and the husband testifies four times that his wife has committed adultery, which is met by the wife testifying four times