Child marriage continues to hurt youngsters in India, leading to widespread exploitation of girls at a tender age. Photo: Rohit Jain

An age-old colonial law criminalizing adultery has been challenged before the Indian Supreme Court one more time, and the case is reserved for final order. To understand the impact of the impending decision, let’s go through the journey of the law so far.

According to Indian laws, adultery is voluntary sexual relations between a married person and a person who is not his or her spouse. But under Section 497 of the Indian Penal Code, the offense of adultery is committed only by a man who has sexual intercourse with a woman, who he knows is the wife of another man. The law further says that the husband who has not consented to this sexual intercourse would be the only victim and the wife would not be held liable even as an abettor.

While almost all countries have decriminalized adultery, India continues to adopt an eerie definition where the erring spouses are not charged with this crime, but instead, a third party is.

The reason for penalizing the “outsider” has been explained by the Courts in the past. It was this “outsider” who invaded the privacy of the matrimonial unit, poisoned the marital relationship and violated the sanctity of the marriage. Therefore, adultery is seen as a crime worthy of imprisonment, as opposed to a civil wrong in most countries.

As for the husband being the “only victim,” this stems out of the staunch patriarchal notion that wives are properties of their husbands, which would be trespassed upon when another man has illicit relations with her. This thought was even confirmed by the Bombay High Court when it pointed out that the crime would have been committed only when the husband hadn’t consented to this sexual relation.

This provision was written in an era when women did not enjoy as many freedoms as they do now. Bigamy was widely prevalent. Lord Macaulay, who was one of the drafters of the penal laws, did not find it fair to punish the inconsistency of one wife who had to compete with many other wives when the law “allowed the man to fill his home with women.” Therefore, to protect the wife, the law specifically mentioned that she shall not be punishable as an abettor. Interestingly, this exclusion does not exist in the state of Jammu and Kashmir, where the wife can be held criminally liable as an abettor.

Problems with the current law

The law at present allows a husband to press charges against the man who has sexual relations with his wife. But in vice versa, the wife does not have the same recourse to proceed against the husband’s mistress. Not affording both spouses the same legal remedies is discriminatory and violates Article 14 of the constitution, which promises equality before law and equal protection of rights. Though the intention was to protect women, this provision turned out to project reverse discrimination.

The Indian constitution allows for a reasonable classification to be made within the ambit of Article 14, and it is often argued that such a distinction among spouses has been covered under it. But it has to be ensured that some reasonable nexus exists between the classification made and the object sought to be achieved from it. Here, the object sought to be achieved by the discrimination was protection of women. However, this form of protection in today’s egalitarian society is futile.

Bigamy is not prevalent any more and women are not considered property. Therefore, the adultery provision in Indian law as it stands today is old, outdated and liable to be repealed.

Previous challenges to Section 497

The question of validity of this section has been discussed in courts before, out of which two challenges particularly stand out as landmark cases. None of them were inclined to repeal it, but in some way expanded upon what the law was meant to be.

The first constitutional challenge came in 1954 before the Bombay High Court. It claimed that this provision was discriminating against men by only prosecuting the adulterating man and not the wife. The court held that the law was not intended to operate on women and the question of it operating unequally between different persons did not arise.

The second constitutional challenge was brought before the Supreme Court in 1985. It raised the issue of the inability of a wife to prosecute her adulterating husband. The court held that this challenge was to the policy of the law and not its constitutionality, as the husband did not have the right to prosecute the wife either. While this challenge had a strong emotive appeal, it was not viable on legal grounds. It further emphasized why the “outsider” was the author of the crime and the only one being prosecuted for violating the sanctity of a matrimonial home.

This issue was also discussed in the legislature when the Law Commission made recommendations on the matter. In its 42nd report, it insisted on retaining this law with amendments to allow the prosecution of the wife as well. Fortunately, these suggestions were rejected. Some attempts were made by other members to delete this provision altogether, but remained unsuccessful.

Toward a utilitarian future?

India’s obsession with this law to protect “sanctity of marriages” is a conundrum to which there is no logical response. Even in the latest challenge, the government argued for retaining this provision as it claimed adultery was a “public wrong.” However, on a positive note, the court observed that no collective good could come out of prosecution under Section 497. It further added that the “sustenance of a relationship is based on parties, their willingness to adjust [and] the State should not come into it.”

The answer does not lie in making the law gender-neutral, either. Two spouses come together in an agreement, and a violation of that should be dealt with in the confines of that agreement alone. Therefore, rightly so, adultery exists as a ground for divorce in civil law. Its extension into the realm of criminal law where people are prosecuted for public wrongs makes no sense whatsoever.

India stands in list of countries, which mostly consists of Islamic nations, that still considers adultery a crime. The inclination of the current Supreme Court bench gives some hope for abolishing this archaic provision. However, whether or not this challenge will be successful, only time will tell.

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Shonottra Kumar

Shonottra Kumar is a legal researcher at Nyaaya, an initiative of the Vidhi Centre for Legal Policy.