Three times the Supreme Court upheld the law against adultery and finally stroked it down. No Fundamental Right can ever be withdrawn or contracted. It can only be expanded. Soon or later, the SC should abolish gender biased laws like 498A, though it’s already amended to a greater extent. While quashing Section 497, the Supreme Court noted that the sanctity of marriage goes out of the window in various situations, including the one where a married man has sexual intercourse with an unmarried woman, but the legislature has criminalised only one instance. This gives unlimited power to the women to tame down their husbands. Who knows what happens next with the scrapping of this law, most probably for the uninitiated women as well as the women who knew about the pitfalls of indulging in adultery. Although a good majority of men and women are already indulging in adultery surreptitiously and with this law being scrapped, they can indulge in the full view of their spouses; this gives a chance to enrage and irritate the spouses leading to more crimes. Anyway, this is in line with the Hindutva as practiced by the people in the ancient times as described in the texts, an example being Kunti and Draupadi and host of others. This will be pleasing to hear for the Hindu fanatic outfits while the Islamic followers may be frowning as this runs counter to their holy book. Meanwhile, the court underlined that Section 497 treats women as properties of their husbands and is hence manifestly discriminatory.
It trashed the central government’s defence of Section 497 that it protects the sanctity of marriages. Is it what we want as a civilised way of life and society of higher dignity? We are turning more towards being a western society rather than holding on to the Indian ways of life. I support this but have some concerns regarding the future of our country as it’s not just the love and sex which binds the husband and wife relations, it is sometimes the social pressure which has saved many marriages and even made us a more dignified society (regardless of all the crimes). To be honest, I being a woman, support women empowerment but rather than putting down Sec 497, we must work to strengthen the laws to control men from indulging in such traps. Why are we stressing at sex autonomy? I know it is partial to provide more freedom to males but rather than widening freedom of females in sexual autonomy, which is of no use, we must stress to control the men’s freedom. Of course, why should men have all the fun?
The court noted that the sanctity of a marriage goes out of the window in various situations and also emphasised that each partner to a marriage is equally responsible to keep the sanctity of a marriage intact. Adultery will henceforth only remain a civil wrong and a ground for divorce. Previously Section 497 made adultery an offence only with respect to a man who has a relationship with somebody’s wife. The wife was considered neither adulterous nor an abettor in law, while the man used to face a jail term of up to five years. Another peculiar aspect of Section 497 was the fact that the fulcrum of the offence is gone if consent or connivance of the husband can be established. On a petition by Joseph Shine, the Constitution bench was examining the validity of Section 497. Replying to the plea, the central government has filed its affidavit, saying that the provision punishing adultery “supports safeguards and protects the institution of marriage”. Earlier, the Supreme Court had the chances to review the Section 497 of IPC but the Supreme Court thought otherwise and missed the opportunity. This section is discriminatory on the part of both women and men. It should have been struck down much earlier because now the time has changed and social ethos has been changed drastically. Section 497 is a law enacted during the British regime where marriages were performed as arranged by parents and the bride and the bridegroom both were unknown to each other. But at the present time, when this law no longer exists in Britain, it must have been struck down in India too.
With changed law and landmark judgement, adultery is not a crime anymore in India, but it can be the grounds for divorce. In simple language, my partner is enjoying sleeping with another partner; there is nothing wrong with it, to let the partner carry on with another person, release me out of wedlock. In the past hearings, the Supreme Court had asked the centre how the 150-year-old law preserved the sanctity of marriage when the extramarital affair becomes non-punishable if the woman’s husband stands by her. The government has defended the law, saying adultery must remain a crime so that the sanctity of marriage can be protected, after a petition called for the law to be scrapped as it does not treat men and women equally. Five senior most Supreme Court judges, unanimously backing gender justice and calling out the Victorian adultery law — Section 497 of the Indian Penal Code — as arbitrary, announced, “The husband is not the Master of the Wife.” This is what Section 497 of the IPC dealing with adultery used to read like: “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 five years, or with fine, or with both. In such cases, the wife shall not be punishable as an abettor.” After quashing the law, the judges noted that most of the countries had abolished the laws against adultery. Making adultery a crime is retrograde and would mean “punishing unhappy people”.
The Chief Justice said that adultery might not be the cause of an unhappy marriage; it could be the result of an unhappy marriage. Last year, in response to the petition challenging the law, the Supreme Court had said that the then existing Section 497 used to treat a woman as her husband’s subordinate and time had come for the society to realise that a woman is as equal to a man in every respect. A plain reading of the section gives rise to various conclusions: One, that the married woman is not going to be regarded as an ‘abettor’ of the offence, which means that the woman will not be held liable for the act of adultery — only the man involved in the act will be held criminally liable under the section. Second, the law does not apply in the case where an unmarried woman has intercourse with a married man. Finally, the act is not regarded to be an offence or can be ‘cured’ of its criminality if the husband of the married woman consents to her having intercourse with another man. In addition to this, Section 198 of the Code of Criminal Procedure gives only the husband the right to file a case against the man involved in the act of adultery. Thus, this section merely reinforces the archaic thinking and sexual stereotype that a woman ‘belongs’ to a man and cannot have her own thoughts or opinions; this, even if she had voluntarily consented to the act of intercourse. Because of this problematic interpretation, the Supreme Court finally quashed the law itself.
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