The Supreme Court has, in a welcome move, decriminalised adultery. Declaring Section 497 of the Indian Penal Code as unconstitutional, because it was paradoxically skewed against women in an adulterous relationship even as it ‘protected’ them from punishment, the court has confined the ‘offence’ of adultery as a civil wrong that can be used — by the woman as well as the man — to dissolve a marriage.
Unlike, say, domestic violence, which is also a crime, adultery can now only be a ground for divorce. At the heart of the decriminalised law lies the offensive notion of a wife as chattel, or the husband’s personal property.
So, even as Section 497 forbade the woman from being punished — only the man in an adulterous relationship was up for punishment — the corresponding Section 198 of the Code of Criminal Procedure ensured that the husband alone had the right to file a case against the ‘other man’.
The court has found such a testosterone-etched representation of ‘stolen property’ to be abhorrent and in opposition to Article 14 (equality) and Article 15 (prohibition of discrimination on the basis of caste, religion and gender).
In 2003, the Justice Malimath Committee had suggested making Section 497 ‘gender neutral’ — letting the woman also file a criminal case against ‘the other woman’.
But the apex court has rightly sidestepped this option, taking cognisance of the ground realities in a largely patriarchal society, which would have seen the continued de facto approval of a misogynistic view of both marriage and adultery.
Instead, it has ushered a level-playing field in which the dissolution of marriage, where both husband and wife have equal say, can be the result of an extramarital relationship.