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Adultery is not a crime


The progress of a community can be measured with the progress of women in the community. This progress shall not only include the growth shown by women in educational or scientific fields but shall also include the ease of access to law and the position they enjoy in the society with respect to men. Ensuring this progress, the Supreme Court of India struck down the archaic section 497 of the Indian Penal Code (IPC), which had made adultery a criminal offence. The apex court rules that section 497 of the IPC violated Article 14 - Right to Equality and Article 15 - Prohibition of Discrimination only on the grounds of sex, race, religion, etc. In order to understand the judgement it becomes imperative for us to understand the origin of such a law.

The Indian society has had a character of a patriarchal system. Since time immemorial, men have always enjoyed their dominance over women. The job of a woman was restricted to the chores of the household. All the major and minor decisions of her life were taken by men i.e. father before the marriage and husband after the marriage. This predominant culture of the Indian society made the women nothing but a chattel of her husband. This very nature is reflected in Section 497 of IPC, dealing with adultery. It describes adultery as a practice wherein a wife is involved in a sexual relationship with another man. Further, the man with whom the wife is indulged in a sexual relationship is aware of the marital status of the woman. This section made the man punishable under the charges of adultery. However, if the wife finds that her husband is involved in a sexual relationship with other women, then Section 497 was not applicable in such a scenario. Thus it only punished men and not women, which was derogatory to Article 15 of the Indian Constitution.

The decision of the Supreme Court to strike down Section 497 made clear two things; first, the wife is not the property of her husband; and second, the equality before the law for both, the man and the woman. Sexuality is something which is intrinsic and personal to every human being and no one can be compelled to establish sexual relations with anyone. Section 497 did not consider adultery as a criminal offence if the husband had his consent for the sexual affairs of his wife with other men. Thus, it necessarily made the wife a puppet in the hands of her husband. Hence, there was a dire need to come out of this colonial hangover and make Indian society a place where men and women are equal, as enshrined in the Constitution of India.

Adultery, though not a criminal offence today, stands to be a civil offence i.e. a divorce petition can be filed in the court on the grounds of adultery. By scrapping down the practice of adultery as a criminal offence, the Supreme Court has upheld the principle of equality. Our governments are working in directions which are empowering women to excel in all aspects of their lives and reach new endeavors. But still there exist some practices which are hampering the growth of women in India. One such unaddressed issue is "marital rape". Though Section 375 of IPC deals with rape, there is no such provision which addresses the issue of marital rape. In such a case, the woman is neither able to address her issues to her family nor are the law enforcement agencies accessible to her. Thus she has to pass with the mental trauma every single day.

The manner in which adultery was struck down on the grounds of violation of fundamental rights, in a similar way the judiciary shall also enable a provision which shall protect women in the cases of marital rape. This shall truly boost the initiative of women empowerment and help in the all-round development of the country.

- Aakash Kadam