Adultery law in India (Section 497) – Morality Vs Infidelity

Why in news?

The Supreme Court recently heard the petition which seeks the nullification of Section 497 in Indian Penal Code (IPC) mentioning that it only punishes the married man for having extra-marital relations with a married woman, not both.

What is the Adultery Law (Section 497 of IPC) about?

  • Section 497 says that any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery or marital infidelity.
  • Under this law, adultery is punished with the prison term up to 5 years or with fine or both.

What is the issue here?

The law implies that

  • Only the adulterous man can be punished, not the woman involved.
  • Only the husband of the adulterous woman can move the court.
  • And the wife of an adulterous man, cannot move the court against her husband.

Also read: Modern Slavery in India – The ugly truth

What are the arguments against the adultery law?

  • The adulterous woman cannot be punished and can claim innocence under the law which is against the right to equality under Article 14 since she is also the main accused of the crime and it is unfair to the man. Hence section 147 is unconstitutional.
    • In the present world, where women hold authority positions in almost all spheres, the idea that women are always the victim, not only undermines the feminism but also unfair to men.
  • Adultery law in India is patriarchal and protects only the man’s right to his property, that is, his wife.
    • The law treats the wife as the property of her husband since her relationship with other persons depends on the consent of her husband. This can also mean that a woman can have sexual intercourse with another person with the consent of her husband.
    • Hence it is against the fundamental right to life and privacy of women under Article 21 of the constitution.
  • The woman doesn’t have the right to prosecute her adulterous husband which violates the right to equality under Article 14.

  • The law gives the husband the right to blame and punish an outsider for the breakdown of his marriage, instead of moving the court for a mutual divorce or consulting family law attorney or lawyer for the matter.
  • The law is quite archaic which was made in 1847 and should not be valid in the present times also, considering the changes in the societal values. Even SC recognizes the legitimacy of live-in relationships in India.
  • How could the individuals be held criminally liable by the state for their private decisions? Collective morality should not restrict the constitutional rights of privacy and autonomy. Therefore, adultery should be treated as civil misbehavior rather than criminal behavior.
  • In 1971 itself, the 5th law commission recommended changes in the provision to make the law gender neutral and reducing the prison term from 5 to 2 years. But those recommendations were ignored.
  • In 2006, the National Commission for Women recommended decriminalization of the adultery law.
  • All European countries and many countries in Latin America take the credit in decriminalizing adultery. In 2015, South Korea decriminalized adultery. Now, only 3 Asian countries still criminalize adultery viz. India, Taiwan, and the Philippines.
  • The law has repeatedly failed to prevent the act of adultery.

Also read: Artificial Leaf – The Next big thing in the fight against climate change

What are the arguments in favour of the adultery law?

  • Centre’s reaction to the petition is that “Decriminalisation of the adultery would mean eroding the institution and sanctity of marriage and the social fabric at large”. Removing the provision would only encourage adulterous behavior with the worst societal consequences. The centre is only willing to amend the law to provide equal rights for both men and women to file the criminal suit.
  • The structure and culture of Indian society are unique and should not be compared with other countries that have decriminalized the adultery.
  • Supreme Court in Yusuf Abdul Aziz V. The state of Bombay (1954) held that, Section 497 did not violate the right to equality under Article 14 and 15 of the constitution, as the constitution itself provides for special provisions with respect to women and children.
  • The critics of Section 497 who argue that the law intervenes in the private decisions and autonomy of individuals, failed to notice how adultery wrecks the life of another.
  • While morality can vary among different persons, ethics is common thing that holds the society together. Hence adultery by default is unethical and should not be decriminalized.
  • Failure to prevent adultery cannot be attributed to the law, instead to its enforcement. If such reasoning is considered, then the laws criminalizing rape, murder, trafficking etc. shall also be decriminalized.
  • Marriage is a legally recognized institution with registration and other legal procedures. Hence violating such institution is a crime and shall be punished.

Way forward

The criminalization of adultery will neither lead to the couple living together again nor does it alter the societal behavior. The legal system should only regulate the process of divorce to a degree when one or both the partners violate the marriage. Hence, it is high time that India like many other countries should decriminalize adultery and look for alternative ways to prevent the behavior. It should encourage the couple to live together again by solving the problems in their marriage or give divorce, rather than just punishing such behaviors.

Update

SC struck down Sec 497 of IPC by mentioning that the law is arbitrary and violative of right to equality under Article 14 of the Constitution. Thus extramarital sex is not a crime in India anymore.