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Saṅgrahaṇa: An Indic View on


Adultery
 

The correct recipe to rectify the aberrations brought in by colonial law is not to import western solutions. Instead, we as a nation should
work towards reviving our own tradition of law and ethics i.e. the dharmaśāstra tradition and contextualizing their teachings to our
requirements.
358

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Nithin Sridhar(http://indiafacts.org/author/nithinsridhar/) @nkgrock(https://twitter.com/nkgrock)


Indology(http://indiafacts.org/category/indology/) | 06-10-2018

T
he Supreme Court judgment on September 27, 2018 that set aside Section 497 of the Indian Penal Code (IPC)– a 158-year law that
punished a man for adultery—brought my attention to the issue. While some people welcomed the decision as being progressive,
some others welcomed for getting rid of a colonial law. On the other hand, many also criticized it for being anti-women and for
undermining the institution of marriage.

In the light of these diverse opinions, it would be instructive to examine the Indic perspective of adultery through a study of primary textual
resources of dharmaśāstra and kāmaśāstra tradition, which would not only be our gateway into classical Indian society, but would also help us
to align our present society and values with the Dharmic worldview.

Conception of Adultery in Indian Tradition


Adultery which is called “Saṅgrahaṇa” in the dharmaśāstra-s has been given an extensive treatment in Indian texts. Indian tradition perceives
adultery at three levels: physical, verbal, and mental. While physical is considered the worst, the mental is designated as the secret kind.
Viṣṇu Purāṇa (3.11), for example, notes that a man should not even think incontinently of another’s wife, much less speak to her to that end.
It adds that one who commits adultery is punished both here and hereafter, with his lifespan reduced in the current life, and he entering the
realms of suffering upon death. Manusmṛti (5.165) likewise notes that a virtuous wife is one who has her thoughts, words, and actions under
restraint.

A more graphic description of what constitutes adultery is found in some of the smṛti-s. Manusmṛti (8.356-358) observes: “If a man converses
with the wife of another at a sacred ford, in a wild tract, in a forest, or at the con uence of rivers, he is guilty of adultery. Doing favors,
dallying, touching the ornaments or clothes, and sitting together on a bed—all this, tradition tells us, constitutes adultery. When a man
touches a woman at an inappropriate place or permits her to touch him—all such acts done with mutual consent, tradition tells us, constitute
adultery (Olivelle, 2005).” This is further elaborated in the Nāradasmṛti (12. 62-69), which notes: “To meet with another man’s wife in an
unseasonable hour or place, and to sit, converse, or dally with her, these are the three grades of adultery. When a woman and a man have
meetings at the con uence of two rivers, at a Ghât, in a garden, or in a park, it is also termed adultery. By the employment of go-betweens,
dispatch of letters and other criminal proceedings of various kinds, adultery may be found out by the knowing. If one touches a woman in a
place (where it is) improper (to touch her) or allows himself to be touched (in such a spot), all such acts, done with mutual consent, are
declared to be adultery. Bestowing attentions (on a woman), sporting (with her), touching her ornaments and clothes, sitting with her on a
bed, all such acts are (also) declared to be adulterous. If a man seizes a woman by the hand, by a braid of hair, or by the border of her gown, or
if he calls out, ‘Stop, stop,’ all such acts are (also) declared to be adulterous. By the sending of clothes, ornaments, garlands of owers, drinks,

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food, and fragrant substances, adultery may (also) be discovered by the wise. When a man, actuated by vanity, folly, or braggartism, declares
himself, that he has enjoyed the love of a certain woman that is also termed an adulterous proceeding (Jolly, 1889).”

Thus, Indian tradition not only recognized the actual act of sexual intercourse with a married person as adultery, but also any thoughts,
words, or actions leading to it was considered as adultery.

Adultery as Adharma: Penance, Punishment & Exceptions


The marriage or vivāha is understood as a saṃskāra- a sacrament and a puri catory ritual that allows a couple to enter the gr̥hastha-āśrama
or the stage of householder to pursue dharma, artha, kāma, and mokṣa together. It is a sacred bond standing on the three pillars of rati
(desire), dharma (duty), and prajā (progeny). It is a special relationship which involves both saha-dharma and saṃbhoga, i.e. a pursuit of
duties and the experiencing of life, both of which must be accomplished together. In other words, sexual intimacy and delity to each other
are vital for the very existence of the relationship of marriage. It is no surprise then that Mahābhārata (Anuśāsana parva 45.9) states thus:
“The relationship between wife and husband, as between woman and man, is very intimate and subtle, with sexual intimacy as its common
characteristics (Badrinath, 2006).”

Since, the notion of togetherness is very central to the Hindu view of vivāha, adultery or Saṅgrahaṇa is perceived as cheating and a breaking
of trust and hence, a grave act of adharma. So much so, that Manusmṛti (12.7) lists it among the three kinds of bodily sins that people may
commit, the other two being stealing and murder. Further, it notes that a man who commits adultery would become a Brahmarākṣasa after
death (12.60), while an adulteress would be born in the womb of a jackal (5.164), both implying a condition of great suffering.

Having said this, it may be noted that compared to killing of a Brahmana, drinking liquor, theft, and intercourse with the preceptor’s wife
(which is a special case of adultery)—which are considered Mahāpātaka or great sins causing a person’s fall (Manusmṛti 11.54)—adultery in
general is designated as a Upapātaka or a minor crime (Manusmṛti 11.59, Yājñavalkya Smṛti 3.234), which nevertheless causes the loss of
varṇa (Āpastamba-Dharmasūtra 1.7.21.8-9).

A number of penances and punishments are prescribed in the dharmaśāstra-s for the offence of adultery. A penance or prāyaścitta is a
voluntary act of expiation as a repentance for committing an offence, while a punishment or daṇḍa is a legal penalization of an individual by
the king or the state for an offence committed by him/her. Manusmṛti (11.117), for example, suggests a penance called cāndrāyaṇa vrata for
adultery. Gautama Dharmasūtra (22.29) suggests chastity for two years as penance. Yājñavalkya Smṛti (1.72) notes that a women can attain
puri cation from adultery at the menstrual period. The commentators note that this was applicable to only mental adultery. Baudhāyana
Dharmasūtra (2.3.48) suggests a woman who is unfaithful to perform arduous penance. Further it notes at 2.3.49-50 that “If it is with a Śūdra
man, she should perform a lunar penance. If it is with a Vaiśya and so forth in the reverse order of classes, she should perform the penance
beyond the very arduous and so forth (Olivelle, 1999).” Various other expiation rites have been suggested for both men and women who
indulge in adultery. In the case of women, though, if she conceives as a result of adultery, there appears to be no penance prescribed for her.

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Coming to punishments, dharmaśāstra-s prescribes different degrees of punishment catering to different situations and varṇa-s of the people
involved in it. It prescribes punishments to both men and women who commit adultery. Severest of punishments are mentioned in
Manusmṛti, perhaps to cater to extreme situations. Verse 8.352, for example, states: “When men violate the wives of others, the king should
dis gure their bodies with punishments that inspire terror and then banish them (Olivelle, 2005).” Likewise in verse 8.371-372, it states
“When a woman, arrogant because of the eminence of her relatives and her own feminine qualities, becomes unfaithful to her husband, the
king should have her devoured by dogs in a public square frequented by many. He should have the male offender burnt upon a heated iron
bed; they should stack logs and burn up that villain there (Olivelle, 2005).” Nevertheless, Manusmṛti also prescribes various amounts of nes
for adultery between men and women belonging to different varṇa-s, which implies that severest punishments were given only in extreme
and exceptional cases.

A similar account of punishments are found in Nāradasmṛti (12.70), which says “When a man has connexion with a woman of his own caste, a
ne of the highest degree (shall be in icted on him); and the middling ne, when he has connexion with a woman of lower caste; and capital
punishment, when he has connexion with a woman of superior caste (Jolly, 1889).” In the case of women commuting adultery, it says at 12.91:
“When a married woman commits adultery, her hair shall be shaved, she shall have to lie on a low couch, receive bad food and bad clothing,
and the removal of the sweepings shall be assigned to her as her occupation (Jolly, 1889).” A similar statement is made in Yājñavalkya Smṛti
(1.70): “An adulteress is to be allowed to live, deprived of her authority, dirty, fed with a view to sustain life only, dishonoured, sleeping on the
ground (Somayaji, 2006).”

What is clear from above is that adultery was not considered merely a personal issue to be resolved by the married couple among themselves.
Instead, Manusmṛti (8.386-387) goes to the extent of saying: “The king in whose capital there is no thief, no adulterer, no person who uses
offensive speech, no person who uses violence, and no person who commits physical assault, will attain the world of Indra. The suppression
of these ve within his territory secures for the king paramountcy among his peers and fame among his people.” The reason was that adultery
was perceived as a serious breach of trust and an act of cheating which undermined the very institution of marriage, which in turn would lead
to social disorder and chaos. As Manusmṛti (8.353) itself notes: “such violations give rise to the mixing of social classes among the people,
creating deviation from the Law that tears out the very root and leads to the destruction of everything.”

If it is asked, what about the future of the relationship if a partner commits adultery? The dharmaśāstra-s are clear that in case the wronged
partner wishes so, he or she can leave the other who had committed adultery. Yājñavalkya Smṛti (1.72), for example, notes that if a woman
conceives through adultery, the husband can leave her. Likewise, Yama Smṛti [quoted in Balambhatti, a gloss on Mitākṣarā commentary on
1.72 of Yājñavalkya Smṛti] notes that a wife who is adulterous could be renounced. On the other hand, Parāśara Smṛti (4.30) notes that women
can leave their husbands under ve circumstances which includes his becoming fallen due to adharma, which as we already noted before
includes adultery as well. While separating from the partner has been given as an option in the event of adultery, “there is no absolute right of
abandonment of wife in the husband on the ground of adultery (Kane, 1941, p. 572).” In fact, renouncement of the wife was suggested only in
the extreme case, and instead the wife was advised to undergo penances prescribed for her, at the completion of which, she is to be restored
to all her privileges (Kane, 1941, p. 572). Likewise, the wives were also advised not to abandon their husbands in general, except in extreme

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cases. Nevertheless, both men and women had the option to become separated from their spouses upon the discovery of adultery on the part
of their spouses.

However, there were notable exceptions to the application of adultery rules.

Kāmasūtra (5.2), for example, notes that while sexual relationship is prohibited with women married to other men, it is neither enjoined nor
prohibited with respect to veśyā-s and punarbhū-s, with the former referring to either prostitutes or courtesans, and the latter referring to
either widows or remarried women (Daniélou, 1994). It further enunciates at 5.3-4 that nāyikā-s or the women suitable for love affairs were of
four kinds: the young (unmarried) girl, the punarbhū, the veśyā, and the pākṣikī  (Daniélou, 1994). The Pākṣikī is a consenting married
woman. Kāmasūtra notes that while the rst three could be approached for the sake of love (5.3), the last i.e. the consenting married woman
should not be approached either for progeny or for pleasure, but only during exceptional circumstances (5.12). Likewise, sexual relationship
with svairiṇi and niṣkāsinī women was also not prohibited. Svairiṇi were self-willed or independent women who were not bound by the rules
of delity. Nāradasmṛti (12. 45) describes svairiṇi women as those who have left their husbands and are living with their lovers. Niṣkāsinī-s
were women who had left their families and perhaps were living alone (Jolly, 1889). Nāradasmṛti further notes that there were three kinds of
punarbhū women and four kinds of svairiṇi women. Women whose husbands were impotent, or were missing, or have gone out for long and
have not returned, could also look for new husbands (Nāradasmṛti 12.16-18, 12.24). In verse 12.61, Nāradasmṛti explicitly states: “A man is
not punishable as an adulterer for having intercourse with the wife of one who has left his wife without her fault, or of one impotent or
consumptive, if the woman herself consents to it (Jolly, 1889).”

Thus, we see that the dharmaśāstra-s provide a lot of exibility and exceptions to the general rulings with respect to adultery.

The de nition of adultery was con ned to:

1. Men—either married or unmarried– having sexual relationship with married women

2. Married women having sexual relationship outside of marriage.

Adultery did not apply to instances of men practicing polygamy, or married men approaching courtesans. Instead, kāma was considered as an
art and a form of pleasure in itself. Similarly, certain categories of women like niṣkāsinī, veśyā, etc. were not bound by the rules of delity and
hence, were beyond the scope of adultery as well. Further, certain groups of people like theatre people, performing artists, musicians, dancers,
etc. were kept out of the purview of adultery provisions as well.

Moreover, the very de nition of vivāha or lawful marriages were con ned to the eight forms of brahma, daiva, ārśa, prājāpatya, asura,
gandharva, rākṣÍasa and piśāca and the rules of delity and transgressions in the form of adultery were applicable only to them. Though
Punarbhū and svairiṇi were considered wives, they were not considered lawful wives, and hence, the stipulations regarding delity were quite

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lenient, exible, and optional in their case. Further, women who were niṣkāsinī, veśyā, etc. were all outside the con nes of vivāha and hence,
outside the rules regarding delity and adultery.

Nevertheless, Nāradasmṛti (12.79) notes that even in the case of these women (i.e. svairiṇi, niṣkāsinī, veśyā, etc.), if they enter an exclusive
and committed relationship with anyone, then approaching them for sexual relationship was prohibited and would be considered adultery.

Contextualizing to Modern India


Classical India was a polygamous society with a different set of moral values than those prevalent today in modern India. Since, the arrival of
the European colonialists and with it the Victorian and Christian notions of morality, India has become a completely monogamous society. In
the past, while monogamy was held as an ideal and was probably practiced by large sections of the society, the moral and ethical worldview of
the society was polygamous one, which accommodated respectable position to the institute of courtesans. Further, there was regions and
communities which practiced polyandry as well.

Owing to these differences in the social make up of Classical India and Modern India, we cannot simply copy-paste what was in the past into
the present. We need to contextualize the teachings of the dharmaśāstra tradition into our own times. Such contextualization requires, we ask
ourselves:

What is adultery in Indian tradition?

What are essential elements that constitute adultery?

What are essential elements of Hindu marriage?

How adultery was treated in society and in law?

In the previous section, we have deliberated upon each of these questions from which we can draw following cardinal principles of dharma
which are as applicable today as it was in the past:

Marriage is built on three pillars of rati, dharma, and prajā. Sexual intimacy and delity is central to Hindu notion of vivāha as saha-dharma and
saṃbhoga. Hence, adultery is adharma.

While in Classical India, the de nition of adultery was limited to men having sexual relationships with married women and married women having
sexual relationship outside marriage, with polygamy, polyandry, courtesan houses, and women categorized as svairiṇi, punarbhū, kāminī, niṣkāsinī etc.
being outside the purview of adultery; in Modern India which has become rooted in a worldview derived from Christian West that recognizes only
monogamous marriages, the de nition of adultery must be reformulated suitably to cater to this monogamous worldview, despite the fact that this
worldview has resulted in numerous social issues like increasing divorce rates, serialized polygamy, children growing without one of their parents, etc.
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In this reformulated de nition, all sexual relationships outside marriage must be brought under the purview of adultery, since all of them involve a
serious breach of trust causing hurt to the partner.

Adultery not only involves a breach of trust and causing hurt to the spouse, it also undermines the institution of marriage and if unchecked can lead to
confusion and chaos in society.

Adultery is a serious offence and the State is obligated to punish both the partners involved in adultery.

Section 497 & its Decriminalization


While the section 497 of IPC, was a remnant of colonial era rooted in Victorian morality; its decriminalization, which is again a western
solution imported into India with no resonance to Indian society, traditions or realities can only lead to dangerous consequences in the long
run.

On the one hand, the section 497, which read “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 ve
years, or with ne, or with both. In such case the wife shall not be punishable as an abettor” was not only discriminating against men as it
penalized only the male partner in adultery, it is also discriminating against wives since they could not complain against husbands who were
indulging in adultery. Further, the section was rooted in the colonial notion of adultery as a ‘theft’ of the wife.

On the other hand, decriminalization of adultery undermines the very institution of marriage by legitimizing cheating and adultery. Also, it
has created a new legal category of offences that are morally wrong and hence grounds for divorce, but one which cannot be punished. This
will have serious consequences in the long term on the entire society, especially to the institution of marriage. Further, the argument of
sexual autonomy(https://www.oneindia.com/india/married-woman-doesnt-pledge-sexual-autonomy-to-her-husband-sc-2783607.html) of a spouse to indulge in
consensual sex outside marriage, which was expressed as part of the decriminalization judgment is deeply problematic, since it questions the
very basis and de nition of marriage as understood in Hindu tradition.

This being the case, the decriminalization of adultery has only added to the confusion and chaos already prevalent due to colonial law and has
further opened a new can of worms.

Conclusion
The correct recipe to rectify the aberrations brought in by colonial law is not to import western solutions. Instead, we as a nation should work
towards reviving our own tradition of law and ethics i.e. the dharmaśāstra tradition and contextualizing their teachings to our requirements.

indiafacts.org/saṅgrahaṇa-an-indic-view-on-adultery/ 8/19
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In the case of adultery, a far for intelligent and culturally more sensitive decision would have been to modify the language in the existing IPC
section 497 and make it gender neutral. Such a gender neutral law that penalizes adultery committed by both men and women and allows
both the wronged husbands and wives to approach the court would have truly re ected Indic perspective and values and not the
decriminalization, which now poses the danger of dismantling the entire institution of marriage in the coming years.

Further, considering the disastrous consequences in terms of increased divorce rates, serialized polygamy, and children having dif cult
childhood, etc., that have been brought by the Roman Christian monogamy in the west and whose effects we can already see in India as well,
perhaps it is time for Indian society to seriously consider whether it would be more bene cial to slowly move away from the current society
which legally imposes institutionalized monogamy to a society which has monogamy as the ideal, but without the institutional imposition of
it and thus making space for polygamous and perhaps polyandrous marriages to exist side by side monogamous marriages. Such a shift would
also be in alignment with our classical India society, which provided space and freedom for people with different tastes, temperaments, and
needs to co-exist harmoniously.

I would like to thank Dr. Bharat Gupt and Sankrant Sanu for their valuable inputs.

References
Badrinath, C. (2006). The Mahābhārata: An Inquiry in the Human Condition. New Delhi: Orient Blackswan Private Limited.

Daniélou, A. (1994). The Complete Kama Sutra: The First Unabridged Modern Translation of the Classic Indian Text. Rochester: Innter Traditions.

Jolly, J. (1889). The Minor Law Books (SBE33). Oxford: The Clarendon Press. Retrieved from http://www.sacred-
texts.com/hin/sbe33/sbe3300.htm(http://www.sacred-texts.com/hin/sbe33/sbe3300.htm)

Kane, P. V. (1941). History of Dharmaśāstra: Ancient and Medieval Religious and Civil Law in India Vol 2 Part 1. Pune: Bhandarkar Oriental
Research Institute.

Olivelle, P. (1999). Dharmasūtras : The Law Codes of Āpastamba, Gautama, Baudhāyana, and Vasiṣṭha. Oxford : Oxford University Press.

Olivelle, P. (2005). Manu’s Code of Law: A Critical Edition and Translation of the Mānava-Dharmaśāstra. New York: Oxford University Press.

Somayaji, D. K. (Ed.). (2006). Yajnavalkya Smriti Volume- I. Bangalore: Kalpatharu Research Academy.

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Disclaimer: The opinions expressed within this article are the personal opinions of the author. IndiaFacts does not assume
any responsibility or liability for the accuracy, completeness, suitability, or validity of any information in this article.

Nithin Sridhar(http://indiafacts.org/author/nithinsridhar/)
With a degree in civil engineering, and having worked in construction field, Nithin Sridhar
passionately writes about various issues from development, politics, and social issues, to religion,
spirituality and ecology. He is based in Mysore, India. His first book “Musings On Hinduism”
provided an overview of various aspects of Hindu philosophy and society. His latest book “Menstruation Across
Cultures: A Historical Perspective” examines menstruation notions and practices prevalent in different cultures
& religions from across the world. Tweets at @nkgrock

 (https://www.facebook.com/nithin.sridhar.54)  (http://nkgrock)

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Micro King • 2 months ago


But in various texts, including Manu Smriti, it is stated that having intercourse with girls outside marriage is sin. Even it is
also said that you should not have sex with virgin without marrying her.

How can you ignore that and say that girls may have sex freely if they are not Married?
△ ▽ • Reply • Share ›

Contrarian • 7 months ago


In this age of rampant and free consumption of Porn, things like "punishment for mental adultery" look incredibly naive.
You know, that normally leads to denial and hypocrisy. What we call an āshādabhuthi (link). Brahmacharya, purity of
thought etc are private pursuits, done out of a person's free will. Mandating it by state legislation is like asking all
vaishnavas to compulsorily wear nāmam, not wear suits while going to office, and fast on ekādashi. How about not
crossing the seas (link) and living in mlechha nations(link)?

Kalāya tasmai namahā Its counter productive to find ancient laws to suit modern times It will be observed more in the
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Kalāya tasmai namahā. Its counter-productive to find ancient laws to suit modern times. It will be observed more in the
breach than in the compliance.
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Sukhadeo Walvekar • 7 months ago


In my opinion, marriage creates an institution. The name of that institution is "FAMILY". And just like, body-corporates
have their chairman, each family has a family's head. Both wife and husband must act for protection of family and not for
self.
2△ ▽ • Reply • Share ›

Ramakant Tiwari • 8 months ago


Your conclusion is not really going to work. Better would be -

THAT'S EXTRA-JUDICIAL ADULTERY !!

Section-497 has been struck down in toto accusing it to be a nasty colonial legacy. Then 'learned' Justices of the apex court
proceeded to declare, wife is no more a 'chattel' of her husband.

Well, instead of striking down Section-497 lock, stock and barrel, SC should have equitably imposed it upon married
women too, victim or perpetrator whatsoever, of promiscuity in a language bereft of colonial odour. That would have been
one more step forward to save families from breaking down and jeopardizing future of their kids. Swati Maliwal of Delhi
Commission Of Women has already come out with a statement to that effect revealing a disgusting scenario. Why didn't
they tell all, family is a unit of society...of the nation..the matrimonial relations are sacrosanct...decision to marry is a very
responsible decision affecting society, affecting country and affecting future of children. Instead, the judgement extends an
open field for unmitigated liberty irrespective of destructive consequences involved.

SC pontificated, wife is not a 'chattel' of her husband and 'liberated' her from his 'Chattel-giri' forever. Why didn't they try
out a new concept altogether, husband and wife both 'chattel' of each other on a mutual / reciprocal basis !! That would
have been an interesting example of man-woman parity and strengthened the institution of marriage, society and nation.

Why are Justices of Supreme Court incapable of out of box thinking with strength and future of society / nation as the sole
objective ? Are they suffering from acute / chronic Collagium Syndrome ? They do not answer because they do not allow
anyone to ask them these highly provocative questions. Government must step in with corrective measures. Society cannot
be allowed to go western way where more than 50% persons have multiple parents. In a rustic language, nation urgently
needs a 'Sanskari' Judiciary.
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Nithin Sridhar > Ramakant Tiwari • 8 months ago


Dear sir, I have argued for the same that instead of decriminalization, they should have modified the adultery law
such that both men and women involved in the act of adultery could have been punished.
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Ramakant Tiwari > Nithin Sridhar • 8 months ago


Agreed. I have also responded to the point of wife being so-called 'chattel' of her husband. In a bid to save
institution of marriage, both spouses should be declared 'chattel' of each other.
1△ ▽ • Reply • Share ›

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