Adultery

In the last week Supreme Court of India (SC) gave judgement that section 497  of the Indian Penal Code dealing with Adultery is unconstitutional. Now what is section 497:

Section 497 read as follows

Adultery-Whoever has a sexual intercourse with a person who is and whom he knows or has a reason to believe to be the wife of another man, without the consent on connivance of that man, such sexual intercourse not amounting to rape, is guilty of the offense of Adultery and shall be punished with imprisonment upto 5 years term or with fine or both. In this case the woman (other man’s wife) shall not be punishable as an abettor.

The plain reading of this law gives conclusion as

One, that married woman is not going to be regarded as an abettor of the offense, which means that the woman will not be held liable for act of adultery- only the man involved in the act will be criminally liable under this section. Second the law does not apply in the case where an unmarried woman has a intercourse with a married man.

In addition to this, section 198 of the  criminal procedure code gives only the husband the right to file a complain against the man involved in the act of adultery. This section also reinforces the age old thinking and sexual stereotype  that a woman belongs to man and can not have her own thoughts or opinions, this, even if she had voluntarily consented to the act of intercourse.

During the case in SC it was argued that the section 497 violates two articles of Constitution and they are Article 14 which reads as follows–” The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Article 15 reads as follows– ” The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or and one of them.”

The SC bench comprising of  then Chief Justice Dipak Misra and Justices RF Nariman, AM Khanvilkar, DY Chandrachud and Indu Malhotra held that section 497 is unconstitutional. The Ex CJI and Justice Khanwilkar said “We declare section 497 of IPC and section 198 0f CrPC dealing with prosecution of offences against marriage as unconstitutional. Other highlights of the judgement

• Then CJI Dipak Misra said adultery can be a ground for divorce but not a criminal offence.
•  Then CJI Misra and Justice Khanvilkar said mere adultery can not be a crime, but if any aggrieved spouse commits suicide because of partner’s adulterous relation, then if evidence produced, it could be treated as abetment to suicide.
• The bench held that adultery can be treated as civil wrong for dissolution of marriage.
• Delivering its judgement, the SC said that unequal treatment of woman invites the wrath of constitution. The bench then further added that the beauty of constitution is that it includes ” the I, me and you.”
• The ex CJI said that equality is the governing principle of a system and that husband is not the master of wife.
• Justice RF Nariman agreed with ex CJI and justice Khanwilkar to term section 497 an archaic provision, which is unconstitutional.
• Justice Chandrachud called adultery offence as a relic of past and said section 497 is destructive of woman’s dignity and self respect as it treats woman as chattel of husband. He further in a section of judgement  titled ‘good wife’ said in the most private zone choice is important and sexuality can not be dissected from desire. Section 497 deprives women their choice about sexuality and hence it is unconstitutional. He further added that a woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have sex with any one  outside marriage can not be curbed.
• Justice Indu Malhotra, the lone woman judge in the bench, too termed section 497 as unconstitutional. However she said ‘ adultery is a moral wrong contrasting it with justice Chandrchud’s view that each spouse in marriage do not mortgage their sexual autonomy to each other.’

Some Women Activists have opposed SC’s verdict  and request clarity on polygamy. Their fear is that now men will just abandon us or not give us divorce, they will enjoy polygamy which creates hell for us women. Actually the court has given the decision against section 497, but has not thought about the repercussion on poor women, who have nowhere to go, as man only fears the punishment for crime, which can lead to jail, but in the case of adultery that fear is also gone. Now only recourse left to women will be to go for divorce and wait for financial support.

Now what will be impact of this judgement, will it lead to more adultery as it is not  a criminal offence,it is difficult to say only time will tell. This verdict is not promoting adultery, it just says that adultery is not a criminal offence. It is legal now, but not ethical. Confidence of husband & wife on each other is a concrete pillar of marriage life and ethics builds a healthy society. Therefore in the end, it becomes the private matter of the individuals. Hence the court has set adultery a concern for only civil cases that deals with the  dissolution of marriage.

In the end waiting for your feed backs/comments/views on this blog.

Anil Malik

Mumbai, India

4th Oct 2018.