“It stands to reason”

What does? That if the law against adultery prescribes punishment for the man involved in, well, an adulterous relationship, the law should be amended to prescribe punishment for the woman too. What does not stand to reason is the fact that adultery is a punishable ‘offense’. The only (partly) sane voice on the issue, as raised in this front page TOI article is this one-

But women’s rights activist and lawyer Flavia Agnes said, “Adultery should be deleted as an offence. Making wives and single women criminally liable for adultery would be a retrograde step at cross-purposes with Domestic Violence Act, and will only make life miserable for women who may have got into an illicit relationship as victims of circumstance or inducement.”

The insane voices as always, belong to our politicians and our courts-

The Supreme Court upheld Section 497 in 1985, saying “the wife involved in an illicit relationship with another man is a victim and not the author of the crime…adultery is an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Those men who defile such sanctity are brought within the net of the law…”

Morality is outside the purview of law – at least in civilized societies. But since we are essentially a tribal society full of pretentious barbarians prone to voyeurism, it stands to reason that the State will peep into bedrooms. That explains IPC S497, and IPC S377. Actually it explains most of the Indian Penal Code.

Trackbacks are closed, but you can post a comment.


  • you12  On December 15, 2008 at 10:05 am

    They should be worried about decriminalizing adultery not making more criminals out of normal people. The biggest criminal is the state but it has no laws or boundaries.

    Seriously does these lawmakers even understand the complexity of a long term relationship(s) between two people.

    Here’s the hypocrisy:

    The amendment recomended:
    “Whoever has sexual intercourse with the spouse of any other person guilty of adultery.”

    What about the possibility that a married man or woman could initiate such a relationship with someone who is single.

    And some call this land free.

  • Aristotle The Geek  On December 15, 2008 at 3:14 pm

    “What about the possibility that a married man or woman could initiate such a relationship with someone who is single.”
    Basically, their whole idea is to perpetuate the institution of monogamy – so if either party to a relationship is already married, both are committing an ‘offense’. They so obviously haven’t read either the Mahabharata or Ramayana. A Victorian hangover – we should send all our bureaucrats and Hindutva-vadis to Britain – they will flourish there.

  • Dsylexic  On December 15, 2008 at 4:32 pm

    I guess they missed the ‘adult’ in adultery.We are a massive mai baap sarkar ie nanny state on steroids

  • janko  On September 21, 2009 at 10:23 pm

    Hi I like your blog and I just recently discussed adultery but I’ve stuck at one point.

    Rothbard in his Ethics of Liberty says:
    “Adultery, in the libertarian view, is not a crime at all, and neither, as will be seen below, is “defamation.””

    But why? I cannot find it out, what if both man and women agreed on a contract which obligate them to avoid sexual relationship with other people and what if they both agreed on a punishment (death penalty) … how this can be anti-libertarian?

    Thanks for answer in advance.

    • Aristotle The Geek  On September 24, 2009 at 9:54 am

      # I cannot find it out, what if both man and women agreed on a contract which obligate them to avoid sexual relationship with other people and what if they both agreed on a punishment (death penalty) … how this can be anti-libertarian?

      Rothbard writes, in the chapter “Property Rights and the Theory of Contracts”-

      The right of property implies the right to make contracts about that property: to give it away or to exchange titles of ownership for the property of another person. Unfortunately, many libertarians, devoted to the right to make contracts, hold the contract itself to be an absolute, and therefore maintain that any voluntary contract whatever must be legally enforceable in the free society. Their error is a failure to realize that the right to contract is strictly derivable from the right of private property, and therefore that the only enforceable contracts (i.e., those backed by the sanction of legal coercion) should be those where the failure of one party to abide by the contract implies the theft of property from the other party. In short, a contract should only be enforceable when the failure to fulfill it is an implicit theft of property. But this can only be true if we hold that validly enforceable contracts only exist where title to property has already been transferred, and therefore where the failure to abide by the contract means that the other party’s property is retained by the delinquent party, without the consent of the former (implicit theft). Hence, this proper libertarian theory of enforceable contracts has been termed the “title-transfer” theory of contracts.


      Our contention here is that mere promises are not a transfer of property title; that while it may well be the moral thing to keep one’s promises, that it is not and cannot be the function of law (i.e., legal violence) in a libertarian system to enforce morality (in this case the keeping of promises).


      Let us pursue more deeply our argument that mere promises or expectations should not be enforceable. The basic reason is that the only valid transfer of title of ownership in the free society is the case where the property is, in fact and in the nature of man, alienable by man. All physical property owned by a person is alienable, i.e., in natural fact it can be given or transferred to the ownership and control of another party. I can give away or sell to another person my shoes, my house, my car, my money, etc. But there are certain vital things which, in natural fact and in the nature of man, are inalienable, i.e., they cannot in fact be alienated, even voluntarily. Specifically, a person cannot alienate his will, more particularly his control over his own mind and body. Each man has control over his own mind and body. Each man has control over his own will and person, and he is, if you wish, “stuck” with that inherent and inalienable ownership. Since his will and control over his own person are inalienable, then so also are his rights to control that person and will. That is the ground for the famous position of the Declaration of Independence that man’s natural rights are inalienable; that is, they cannot be surrendered, even if the person wishes to do so.

      Or, as Williamson Evers points out, the philosophical defenses of human rights

      are founded upon the natural fact that each human is the proprietor of his own will. To take rights like those of property and contractual freedom that are based on a foundation of the absolute self-ownership of the will and then to use those derived rights to destroy their own foundation is philosophically invalid.

      Hence, the unenforceability, in libertarian theory, of voluntary slave contracts…

      He writes in the footnotes to one of the chapters in MES-

      [One] cannot make enforceable contracts binding his future personal actions. (On contract enforcement in an unhampered market, see section 13 below.) This applies also to marriage contracts. Since human self-ownership cannot be alienated, a man or a woman, on a free market, could not be compelled to continue in marriage if he or she no longer desired to do so. This is regardless of any previous agreement. Thus, a marriage contract, like an individual labor contract, is, on an unhampered market, terminable at the will of either one of the parties.

      Therefore, under (Rothbardian) libertarian law, such a marriage contract would be legally unenforceable. The parties could, however, have financial penalties built into the contract, what Rothbard describes as performance bonds. That, will be enforceable. A contract “alienating” “will”, will not be.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: