Sex is a fundamental desire that all people possess. The urge is so intense that it is governed by a number of social forces such as law, religion, and morality. But are these forces and laws the same for both sexes - male and female?
The law is new, but the concept of adultery is centuries old and thus it important to find out what was the law related to adultery then, finding which we will also prove that the religious perspective and laws on adultery had been evolved centuries ago form a basis for the societal perspective even today, which is also reflected in the current adultery laws. To start with we will take up the oldest religion which is the Hindu religion then Christianity, Islam, and then a brief overview of other religions too.
AULTERY AS PER HINDUISM
In the Hindu religion a huge emphasis is laid n marriages and its sanctity and to make a marriage pure and give it a legal effect saptpadi is performed around a sacred fire. Adultery is considered a major violation of dharma in Hindu shastras. Marriage is viewed as a holy and strongly sanctified relationship in Hinduism. Marriage, according to Hinduism, is a holy union that lasts for many lives and is not limited to one birth. Maintaining the integrity of marriage and upholding matrimonial vows are important. Breaking the consecrated vow and the recognized union of marriage with deities as witnesses is a profanity and terrible karma.
The purity of blood in the Hindu religion is of foremost importance it is for this reason that eve marriages outside the caste were forbidden and when a woman enters an adulterous relation the purity of the blood is sabotaged and a legit title is not given to offspring born out of such relation.
For Indians, it has always been Sanatan dharma, an immortal faith for Hinduism. Manu smriti was the ancient Indians' eternal code of ethics, and the general population adhered to it faithfully.
According to the Hinduism dictionary, “Adultery is sexual intercourse between a married man and a woman not his wife, or between a married woman and a man, not her husband.” Adultery can cause caste uncertainty, degradation of family values, and social disarray.
Bhagwat Gita 1.43 too states that:
"The intermixture of castes leads the destroyers of the family and also the family to hell. The ancestors (in heaven) also fall, as they do not receive the ritualistic offerings of food and water due to them.”
The Vishnu Purana 3.11 thus states punishment for adultery as- “A man should not think incontinently of another's wife, much less address her to that end; for such a man will be reborn in a future life as a creeping insect. He who commits adultery is punished both here and hereafter; for his days in this world are cut short, and when dead he falls into hell.”
Other than Vishnu Puram the Mau smriti was a like a code of conduct for Hindus and for adultery was considered as a sin.
It stated that, “Day and night woman must be kept in dependence by the males (of) their (families), and, if they attach themselves to sensual enjoyments, they must be kept under one’s control.” “Her father protects her in childhood, her husband protects her in youth, and her sons protect her in old age; a woman is never fit for independence.”
While the Manu smriti objectified the woman as something which is of her parents till marriage, after marriage the chattel is handed over to the husband and then in old age finally handed over to her children for protecting her. This, objectification of women in the Hindu religion is also reflected in the patriarchal structure of Hindu society where she has with the death of her husband, she has to face various widowhood-related rituals and a widower goes free.
The same is the case when it comes to adultery. Though the Hindu religion does not support extra marital relationships of any kind by any gender still the punishments and social retribution in the case of a woman are harsher because of the existing lower status of wife than her husband and her inferior value in the family. Adultery was actually a married woman getting involved with a man other than her spouse. Adulterous relations or extramarital affairs involving a married woman attract more severe punishments than ones involving an unmarried woman.
Manu was highly critical of women's actions and recommended rigorous codes of conduct for men to follow in order to keep an eye on their women and prevent them from engaging in evil behavior that would bring them and their families into disrepute. In case of women the results of adultery are much worse and such actions not easily forgiven or forgotten.
This is evident from, “Day and night woman must be kept in dependence by the males of their families, and, if they attach themselves to sensual enjoyments, they must be kept under one’s control.”
From the discussion of Manu smriti it can be understood that there was more of objectification of woman in the man smriti and punishments were even stated for man for adultery in its Chapter 8 based on caste and status of the man and the woman. It stipulated a variety of punishment for adultery, ranging from plain repentance to the horrific act of burning the accused. The aim of making "adultery" a crime and limiting it to "Man" was to prohibit "Man" from exploiting women who are denied of their husband's love and attention, as well as to prevent Man from having sexual intercourse with the wife of another man.
But when we look historically, we see adulterous relationships drew more criticism and ostracization towards Hindu women. In their situation, the sentences were also harsh. Patita was the name given to an adulterous woman, which meant a fallen or abandoned woman, an outcast, or a woman who had fallen from her husband's grace (pati), example of which can be the famous incident of Ahalya. Indra deceived her and drew her into an illicit engagement, which she bore the brunt of it. In ancient India, women cheating behind their husbands' backs and husbands having extramarital affairs with other women were not uncommon. Indian folklore includes stories revolving around the topic.
To sum it up it can be said that the laws in Hindu religion are same as that stated in section 497 or it can be said that the section 497 is the reflection of the Hindu practices which include the punishments for the 3rd person that is the man and also objectification of woman is same in both the cases.
Though the Hindu religion has stated punishments for any man seducing the wife of another man, the punishments for woman are not written but it can be assumed that the punishments for woman are driven more by social forces and customary practices one of which being “Patita was the name given to an adulterous woman, which meant a fallen or unwanted woman, an outcast, or a woman who had fallen from her husband's grace (pati). Another epithet was kulata, which meant unchaste woman or a woman who degraded the family's (kula) and husband's good name.”
AULTERY AS PER CHRITIANITY:
Like in Hinduism, Christianity too gives a very high position to the marriages and considers it as a sacred bond between two peoples of god and the majority of Christians believe that sexual affairs can only take place in marriage. One of the Ten Commandments in Exodus confirms this: You shall not commit adultery. 20:14 (Exodus). And the definition of adultery as per the Christian law is any sexual relationship outside marriage i.e., having sex with someone who you are not married to, attracts adultery in Christian personal law.
But the difference between the Hindu religion and Christian religion is that while the Hindu religion considers harsher punishment for a woman (customary) and man (codified) the Christianity as per Bible only considers the extramarital affair of a married woman as adultery.
If a married man sleeps with an unmarried woman, it is not considered a felony according to the Biblical meaning. A married man who engages in extramarital relationships with unmarried women is not an adulterer, and the unmarried women with whom he is engaged are not adulteresses.
“Adultery is only practiced when a man sleeps with a married woman, whether he is married or not. And if he is not married, the man is considered an adulterer, and the woman is considered an adulterous in this situation. Adultery is described as any illegal sexual conduct involving a married woman. A married man's extramarital affair is not considered a sin in the Bible.”
There are double standards in adultery when it comes to a woman’s sin and a man’s sin is condoned easily. Leviticus 20:10 subsequently prescribes capital punishment for adultery but only in those cases which involve a married woman:
"`If a man commits adultery with another man's wife--with the wife of his neighbor--both the adulterer and the adulteress must be put to death.”
Thus, double standards of adultery are evident from the literatures of this particular religion as the biblical punishment for sex does not apply if the woman is unmarried; otherwise, it applies regardless of the man's marital status. Within these passages, if the man was married but the woman was not, there would be no death sentence for adultery.
These double standards on adultery are even reflected today in Catholic Christian countries and until after decades ago the no. of Christian countries considering it as a criminal offence was even higher. The Gulathin Old Christian Law illustrates Christianity's stance toward adulteresses by a related provision that specifies that "a woman had to pay fines to the king for the first three occasions she had lain with a man." If a woman had more than three affairs, she was not required to pay the king's fine because she was deemed a prostitute, a puta. A woman's legal value was also limited if she was deemed a prostitute. The day a woman was declared a prostitute, she was no longer subject to punishment.
Along with adultery being a crime committed only by a married woman and not by a married man, there are evidences which show that in Christian law to the woman was considered as an object or property of her husband evident from the:
“We only find proof that one of the parties involved was prosecuted in the vast majority of cases involving adultery from the period 1300–1600. This was normally the male. Adultery is especially important from a gender-differentiating perspective because it stands out so distinctly as a male offence, despite its gender-neutral laws.”
As adultery was only a crime committed on married woman and thus the prosecution included less woman as affair with an unmarried woman was not considered as adultery. Riisøy, A. I. (2009) thus stated that: “The farmer or husband was the household's head. It was his duty to provide and defend, as well as to rule over family members and servants, within this patriarchal family system. The husband or farmer had greater control over what he did or did not do, and he was more likely to indulge in whoring. As a result, Telste contends that the numbers represent fact, arguing that married men are more likely than married women to be unfaithful, a viewpoint held by Sogner, Lindstedt Cronberg, and Sandvik.”
The above examples show that the religion had a biased approach towards adultery in which only female adultery was a more severe sin as per the bible, due to which the women were as objects by the husbands and society thus reflecting the ideology of patriarchy. Several states practiced Biblical traditions prohibiting adultery, which eventually led to the use of adultery as a divorce ground. The connection was clear in certain ways; since adultery is arguably the least likely marital sin to be forgiven, it is more likely than anything else to end a marriage. Owing to its illegal intent, it necessitates a high standard of evidence in divorce case.
The stance in the Christian religion that the adultery is a sin for a married woman has seen a softened approach from Jesus, which is evident from the “Jesus and the woman taken in adultery a passage found in the Gospel of John 7:53–8:11”. This shoes how Jesus saved a woman from the societal retribution and gave the idea that every seen is forgivable to benefit everyone who realizes they’re sick with sin and wants healing.
AULTERY AS PER ISLAM:
People are forced to follow moral rules because they choose to survive in society for reasons other than ethical or physical coercion. Societal beliefs of culture not only control human behavior, but they also have implications on those who violate them. Thus, Islamic law adopted a normative approach to prevent this deviance through adultery for both man and woman.
Adultery, as well as fornication and infidelity, are called unforgivable and reprehensible offences, according to the Prophet , “When adultery and promiscuous behavior becomes rampant in a nation, Allah will expose them to His chastisement and He will send upon them such (strange) diseases that their own ancestors never heard of.”
Adultery is one of the most heinous and severe sins in Islam. The heinousness can be gauged by the fact that it has been compared to the most evil of offences in the Quran. That is completely clarified in the above-mentioned statement.
Men and women who indulge in the sinful act of zina are sentenced to harsh punishments. According to Islamic law, the punishment for premarital sex is 100 lashes, whereas adultery is punishable by stoning to death, also known as Rajm or extreme flogging. Stoning as a punishment for extramarital sex, on the other hand, is not listed in the Quran but is recommended in Hadith. (Hadith are the verbal mores connecting to the words and conduct of the Islamic prophet Mohammad).
While men are exceptions in this situation, and a married man sleeping with an unmarried woman is not considered adultery, it is a crime if the woman is married and engages in extramarital affairs. In this scenario, the sentence imposed on her is no less than execution by stoning.
Thus, the contradiction to the affirmations made that Muslim law is gender neutral is seen by the claims made in above stances.
But the Qur'an, Sura 24 (An-Nur), Ayat 2 states that:
"The woman and the man guilty of zināʾ (for fornication or adultery),- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment."
Fornication and adultery are both punishable by public lashing and lethal stoning, as recommended in Hadiths, Islam's most trusted books after the Quran, especially in Kitab Al-Hudud. This punishment includes 100 lashes and stoning to death but only if the act of adultery is testified by 4 witnesses of good character, but the irony here is that no man of good character would look at such and act and if he will not see or witness such act that the testimony will be false and thus, he will have to face repercussions of giving false statement.
The statement to support our claim that the laws of adultery in Islam are male biased we find that the harshest treatment of adultery, which sometimes allows punishment by stoning, occurs in nations governed by Sharia law, and prosecutions tend to be of women rather than men.
For e.g., Adultery is prohibited in Pakistan, according to the Hudood Ordinance, which was enacted in 1979. The ultimate punishment under the Ordinance is death. The Ordinance has ignited controversy because it allows a woman who makes a rape allegation to have exceptionally clear evidence in order to prevent being charged with adultery. A rape conviction can only be obtained with the testimony of at least four witnesses. High-profile rape incidents in Pakistan have earned the Ordinance more attention in recent years than comparable legislation in other countries.
Other Muslim countries, such as Saudi Arabia and Brunei, have similar rules. Also the Hadith includes, Abu Hurairah which states that: “the Prophet, in a case of intercourse between a young man and a married woman, sentenced the woman to stoning and the young man to flogging and banishment for a year.”
The Hadith also includes that:
“Allah has ordained a way for those women. When an unmarried male commits adultery with an unmarried female, they should receive one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death.”
Thus, the common thing observed is the there is no as such special mention of a married man having sexual intercourse outside marriage except for the case in which the sexual intercourse is with a married man. Rather the biasness towards male in cases of adultery is not much visible when we see the texts related to it but as we know that the Muslim law allows a man to marry four woman i.e.polygamy is permitted in Islam for man but for woman.
Amina Wadud, leading feminist Muslim scholar, cites three reasons why polygamy is appropriate in the Quran “if the husband is sexually unhappy, he can take another wife rather than return to prostitutes or an affair; if the first wife is unable to conceive or another woman with a child needs to be cared for; and if the husband is financially secure enough to care for another woman in the Muslim community.”
Thus, the actual reason why a married man doesn’t need to turn to adultery is that they are provided with and option of marring three more times if they are not satisfied with their first marriage but the same is not there in the case of a wife and her satisfaction does not matter and thus would lead to a deviance from societal norms.
When it comes to adultery, some of the laws are same for both man and woman in Islam , also both the adulterer and the 3rd party are punished in equal proportions but adultery as it has evolved through customary practices and different interpretations is mostly seen as the one which includes a married woman in it and also the exclusive right of four marriages given to a man creates and unequal playing field for females as marrying another woman when the first one is alive is considered as a crime in many religions and even today many states consider it as a criminal offences, thus the approach of Islamic society in relation to rights of woman is different from that of a man.
Thus, a biased perspective indirectly is evident.
Submitted by:
Hardik Gupta
NMIMS, NAVI MUMBAI
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