Adultery law: Time for a 'moral shield' for marriage

It is a season of judicial orders that challenge social norms. The Supreme Court has recently scrapped the law dealing with adultery, an archaic one from criminal jurisdiction.

The law related to adultery, placed as Section 497 in the Indian Penal Code, making it a criminal offence, was technically flawed as it went against the modern notions of equality. It provisioned that in a case of an adulterous relation, only the man could be tried as an abettor of the crime, while the married woman would be treated as a victim, rather than a culprit in the crime. Further, the law did not apply in the case where an unmarried or a married woman had relation with a married man. Lastly, an adulterous act was to be purged of its criminality, if the husband allowed his wife to have intercourse with another man.

However, the most appalling aspect of the law was that it, together with Section 198 of the Code of Criminal Procedure, gave a husband the privilege to prosecute the man who committed adultery with his wife, whereas a wife did not have any right to prosecute her husband if he indulges in adultery. Thus, effectively, the law put the wife under the proprietorship of her husband or in an unequal subservient relationship. The husband could prosecute the violator of his wife in the same way as he would do against the violator of any other property. But, similar rights are denied to the woman. The liberals believed that the provision treated a woman as something “belonging” to her husband who had, in the words of the Supreme Court, the authority “to use the woman as chattel”.

Illustration: Bhaskaran Illustration: Bhaskaran

The provision was certainly a result of an archaic thinking. The158-year-old law drew its morality from the Victorian times when an English chief justice, Lord John Holt, stated in 1707 that a man committing adultery with another man’s wife is doing “the highest invasion of property” and that the latter cannot “receive a higher provocation” than this.

Adultery law had, interestingly, survived at three earlier occasions in the Supreme Court, namely, the Yusuf Aziz vs State of Bombay case, 1951, Sowmithri Vishnu vs Union of India case,1985, and V. Revathi vs Union of India, 1988. In all three occasions, the court thought it is prudent to continue with the validity of the Section 497, as it protected the “general good” and the “sanctity of the marriage”, and opined that “the adultery law was a shield rather than a sword”. However, the Supreme Court no longer feels the reason to perpetuate the shield. According to me, it was a sword in the hands of men, and not the women.

The abolition of the adultery law is in consonance with the global trends. However, it does not give married persons the license to indulge in adulterous behaviour, because adultery is still a grave moral crime that may have, in addition, legal consequences, like divorce, claims of property settlement, and denial of alimony or custody of children to the adulterous woman. Moreover, adultery may also affect the social status of those involved.

The decision of the Supreme Court to scrap the adultery law is a timely course correction. However, the argument that with changing moral standards in society and increasing avenues of interaction between men and women in the digital world, chances of distress in conjugal relationships are more real than imaginary. Hence, the society has to find out some kind of a “moral shield” for marriage, as the “legal shield”—in the form of Section 497—was taken away by the Supreme Court.