Not a crime: on Supreme Court's adultery ruling 

Mains Paper: 2 | Polity
Prelims level: adultery law
Mains level: By decriminalising adultery, the Supreme Court strikes a blow for individual rights 

Introduction

• The Supreme Court finally striking down a colonial-era law that made adultery punishable with a jail term and a fine. 
• A five-judge Bench headed by the Chief Justice of India, Dipak Misra, finally transported India into the company of countries that no longer consider adultery an offence, only a ground for divorce. 
• They have removed provisions related to adultery in the Indian Penal Code and the Code of Criminal Procedure. 

Constitutional Provision 

• According to Section 497 of the IPC, which now stands struck down, a man had the right to initiate criminal proceedings against his wife’s lover.
• In treating women as their husband’s property, as individuals bereft of agency, the law was blatantly gender-discriminatory. 
• The Court also struck down Section 198(2) of the CrPC under which which the husband alone could complain against adultery. 
• Till now, only an adulterous woman’s husband could prosecute her lover, though she could not be punished; an adulterous man’s wife had no such right. 
• In a further comment on her lack of sexual freedom and her commodification under the 158-year-old law, her affair with another would not amount to adultery if it had the consent of her husband. 
• The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife.
• Justice D.Y. Chandrachud wrote. “It was aimed at preventing the woman from exercising her sexual agency.”

Challenges for government  

• The court was not to equalise the right to file a criminal complaint, by allowing a woman to act against her husband’s lover. 
• It gave the IPC and the CrPC a good dusting, to rid it of Victorian-era morality. 
• It is only in a progressive legal landscape that individual rights flourish and with the decriminalisation of adultery India has taken another step towards rights-based social relations, instead of a state-imposed moral order. 
• That the decriminalisation of adultery comes soon after the Supreme Court judgment that read down Section 377 of the IPC to decriminalise homosexuality, thereby enabling diverse gender identities to be unafraid of the law, is heartening. 
• The statute books is being left to the judiciary, without any proactive role of Parliament in amending regressive laws.
• The provisions such as Section 497 or 377 remained so long in the IPC, it is also that Parliament failed in its legislative responsibility to address them.

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UPSC Prelims Questions: 

Q.1)  Consider the following statements regarding the Section 497:
1.    Section 497 of the IPC mandates that “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 the offence of rape, is guilty of the offence of adultery and shall be punished.”
2.    Section 497 is a kind of “romantic paternalism,” which stemmed from the assumption that women, like chattels, are the property of men.
3.    Section 497 gave husbands the exclusive right as an aggrieved party to prosecute the adulterer in a case involving his wife, a similar right has not been conferred on a wife to prosecute the woman with whom her husband has committed adultery
Which of the statements given above is/are correct?
(a) 1 and 2 only
(b) 2 only
(c) 1, 2 and 3
(d) 2 and 3 only
Answer:  C

UPSC Mains Questions:
Q.1)  By decriminalising adultery, the Supreme Court strikes a blow for individual rights. Critically examine the statement.