Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The only offender here in the eyes of court is an outsider (That too a man, outsider woman cannot be held guilty under this law).
The discriminatory nature of this law in favor of woman has been fiercely pondered upon over past few days. The debate started after the supreme court bench admitted and issued notice on a writ petition challenging the validity of section 497 of the IPC, in so far as the impugned section extends immunity to women from prosecution for the offence of adultery, even as an abettor. The law being based upon the absurd assumption that women are helpless victims in an “offence” of adultery. And it is only the outsider man who can be a seducer not a woman.The question we should be asking here is not ‘if woman should be brought under the claws of law in case of an ‘Offence’ of an adultery’ but ‘should Adultery be a criminal offence at all!
While the law on adultery is unquestionably discriminatory on the ground of sex and violative of fundamental right to equality, the very existence of such a law that criminalizes adultery and facilitates state’s interference in a personal space of an individual is in violation of the fundamental right to live with dignity that constitution provides for. These issues will therefore still remain even if the Section 497 of IPC is modified to remove its gender bias.
Maintaining sanctity of a wedding should be personal matter and responsibility of two individuals in such an alliance and sexual choices of individuals clearly should not concern state.When one of the partner deceives the significant half, sanctitude of such a wedlock is already lost and one always has an option of walking out of such a union, adultery being the firm ground for divorce. By criminalizing adultery, regardless of who will be punished and who won’t be, the state is only attempting to hold together a soulless body that such a marriage turns into without mutual faith between concerned individuals. Government’s or judiciary’s role should only be restrained to assisting a deceived person to walk out of such a wedlock if he or she wishes so. State should have no prerogative to punish a person engaged in adultery, adultery being a result of personal sexual choice and no crime. Even if the deceived spouse choses to remain in such a wedlock for whatever reasons, it still does not give the state an authority to punish a fornicating person. State’s Interference in the said matter can also account for the violation of a fundamental right that privacy is. As privacy too along with right to dignified right life and equality constitute the fundamental rights as stated in recent ruling of an apex court.
Most countries have already decriminalized adultery. India too should follow their lead and do away with such outdated laws, this is the only way a stagnant law system could be revitalized. We need a legal system that is in true spirit of liberal society and not based upon anachronistic mentality. And moreover, isn’t liberal democracy centered around people by democracy’s very definition and demands state to be not absurdly controlling and to not invade the personal space of its own people under the name of protectionism. Protectionism of this kind is too obsolescent for an aspiring, free society. Having outdated laws based on restraining, conservative mindset even in 21st century is clearly a call for legal reforms that needs to be looked in with urgency. Breaking free of such hidebound ways of thinking is the only way the purpose of cultural liberalisation of our own society would be served!