Recently the Supreme Court of India struck down a 150-yearold regressive law which made adultery a criminal offence. Under section 497 of the Indian Penal Code, a man who knowingly gets sexually involved with the wife of another man, without the consent of husband, is liable to be punished with imprisonment ofupto five years or fine. However, the wife did not have any such right if her husband cheated on her with another woman.

Brief History of the Law

The first known case concerning section 497 was Yusuf Aziz v. The State of Bombay, wherein a petition was laid down before the court that the section governing adultery was in contravention of Articles 14 and 15 of the Constitution of India.The court held that the said section exempted women from culpability as per Article 15 (3) of the Constitution, which reads that nothing in Article 15 shall prevent the state from making “special provisions” for women.

Then in Sowmithri Vishnu v. Union of India, the court further held that women could not be brought under the purview of this section as “it is commonly accepted that it is the man who is the seducer, and not the woman.”It was also propounded by this court that in cases of adultery, the woman is merely the victim of the crime and not the author. 

On analysing the previous decisions of the courts, a revolting logic that is widespread in most justifications of the court, is that only the man can be seen as capable of seduction and having an active sexual intention. This begs the question whether the court, de facto, does not recognise the sexuality and sexual activity of a woman.

Present Position of Law

In August 2018, the Supreme Court commenced hearing in the PIL seeking decriminalization of the act of Adultery and a five-judge bench of the court ruled that section 497 of the Indian Penal Code violates women’s right to equality and treats them like the property of their husbands. 

Section 497 of Indian Penal Code violated Articles 14 and 21 of the Indian Constitution and the Supreme Court of India held that “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.” During the proceedings, ASG Pinky Anand had also submitted that adultery is a public problem which causes harm to the society at large, it contains the elements of a criminal offence. However, it was held that relationship between two adults, is a matrimonial dispute and could not be a crime against the society. The arbitrary law did not preserve the sanctity of marriage – for if a husband consented to his wife’s sexual relationship with another man, it would not be adultery. It only preserved the ‘propriety rights’ of a man over the woman he was married to. This archaic law had long outlived its purpose and does not square with today‘s constitutional morality. The very object with which it was made has since become manifestly arbitrary, and was utterly irrational in today’s day and age. On this basis alone, the law deserved to be struck down.

There has been some debate over the decriminalization of adultery as people contended that scrapping section 497 of the Indian Penal Code would mean that adultery is right or legal, which is actually not correct.The Supreme Court had no intention of validating adultery or cheating by striking down Section 497, but to only decriminalize a consensual act between two adults which may otherwise be considered against conventional morality.It should be understood that section 497 promoted gender inequality as under it only men could prosecute and only men were held responsible. If a man had an extra marital relationship with any other woman, the wife did not have the right to file a case against her husband or the other woman under Section 497 of Indian Penal Code.Adultery is an offence which hits at the very root of the institution of marriage and to preserve the sanctity of the marriage is not the duty of just one spouse rather both husband and wife, so why was the husband exempted from being prosecuted under this law. Its criminality was based on the view of women as her husband’s property. The Supreme Court judgment has merely ensured that two consenting adults having sexual relations outside of marriage cannot be deemed criminals. What is considered morally wrong should not necessarily be a legal wrong. 

ARUSHI SRALECH