Adultery not a crime: SC verdict revolutionises another chapter of inequality

Adultery is no longer a crime in India, though “without a shadow of doubt” can be grounds for divorce, the Supreme Court said on Thursday, scrapping the 158-year law that punished a man for an affair but not the woman, treating her as her husband’s property. “The husband is not the master of the wife,” said a five-judge constitution bench headed by Chief Justice Dipak Misra, as he calls the Victorian adultery law – Section 497 of the Indian Penal Code arbitrary.

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Section 497 IPC reads: “497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

There had been a constant debate on whether to junk the adultery law. This was not the first time that the debate was piqued in this country. Earlier too, the law was challenged before the Supreme Court in Yusuf Abdul Aziz vs The State Of Bombay in 1954. But the constitutional bench then referred to the Section 497 as not violating the right to equality as enshrined in Articles 14 and 15 of the Constitution. They quoted that sex is a sound classification and though there can be no discrimination on such account, the Constitution itself provides for special provisions with regard to women and children.

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The arguments about adultery law have been protecting the sanctity of the families but in reality deceitfully masked the inequalities and oppression that women faced within the family, be it within this country or elsewhere. It is a fundamental duty as a citizen of a democratic country to enjoy equal rights upon marriage. But, this law hindered the very base of equality. The definition of consent in the Indian penal code sheds light upon a woman’s willingness to engage in sex rather than her celibacy, to differentiate rape from lawful sex.

One among the most famous case that destroyed two lives based on the inequality prevailing on the grounds of adultery in India was the marital infidelity case of Navy Commander KM Nanvati. The prosecution was faced by Nanavati as the grim effects of this situation while the wife was not charged with anything. The 1950s crime scene became the reason India had to abolish the jury system. The case has inspired several Bollywood movies, Akshay Kumar starrer Rustom being one among them.

Over the years, when it was widely recognised that the law leaned over the patriarchal and discriminatory systems, and still it managed to linger over the IPC for so many years. The question had haunted individuals and the constitution for years - why should men or women be treated as criminals in the eyes of the state, for their private decisions?

While Western countries have come to accept adultery and not consider it a crime, there are nations which are keeping their fights against it. While adultery nudged a conflict between religious beliefs and social norms, India has risen to give more importance to personal opinion rather than patriarchal inequality. While religious doctrines still condemn adultery, social norms and laws have been revolutionised.

Adultery continues to strive its strict prohibition in countries like Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Phillippines, United Arab Emirates, some states of the United States of America, Algeria Democratic Republic of Congo, Egypt, Morocco, as well as some parts of Nigeria. The Supreme Court judgment that ruled out adultery as a crime in India took the example of countries that have left behind this stigma. The countries that have done away with adultery as crime are the People’s Republic of China, Japan, Brazil, New Zealand, Australia, Scotland, Netherland, Denmark, France, Germany, Austria, Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, Seychelles, South Korea, and Guatemala.

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Now that the constitution of the country has declared that adultery is not a crime and it is a matter for spouses to resolve, it will be the society that needs to justify the righteousness of this decision. The ministry referred to a judgment passed in 1985, Smt. Sowmithri Vishnu vs Union of India, where it cited that “It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.” 

 "The wife can't be treated as chattel and it's time to say that husband is not the master of woman," said Chief Justice Dipak Misra. He retires on October 2, 2018.