Context

Wiki article

Indian legal definition: 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 offense of rape, is guilty of the offense 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.

The court, during the verdict, also made some statements, which I paraphrase here.

  1. A woman isn't the property of her husband.
  2. The sexual autonomy of a woman is her right.
  3. Adultery can be used in a civil suite, as a reason for divorce.

Now, a look at the law- how it's worded and how it's enforced shows a few things. While the law was framed with the notion that women weren't completely equal to men, it acknowledges that as long as it's not rape, adultery involves a man and a woman. However, even with evidence/ plea by the parties concerned, adultery carried a penalty only to the male, not the female. This is where I find the law discriminatory. The woman who had consensual sex outside of marriage was still considered to be victim, while the man was a criminal. Two persons of the opposite sex who did exactly the same thing were penalised starkly differently.

Now that the law is struck down, it levels the field a little, but in my view, can have some harmful consequences. My concerns are:

  1. Marriage, in India, is a social bond (prenups are illegal except in the state of Goa), therefore maintaining the "sanctity of marriage" is now uncertain. Sexual exclusivity, which was previously one of the bases of marriage is now lost (one of the judges in the bench agrees). While it claims to provide sexual liberation to women, it does not help people who would want to have a conventional marriage system in any way. I would argue that this problem can be at least partly solved by making prenups legal (people who'd like to have a conventional marriage can have it their way, while those who'd want an open marriage can have it their way as well- and all parties concerned can be clear about it, written in a legal manner).
  2. The argument that the law was archaic, and hence it needs to die, is flimsy because even before the law, the act of adultery was seen as reprehensible, and this judgement just minimises the intensity of the penalty (as adultery can be used as a reason for divorce applications). Society's view on adultery is even more archaic.
  3. The judges observe that women were seen as inferior, but not even once mention that the punishment to men is harsh. All observations are around women and their rights, reinforcing the idea that we live in a gynocentric society.
  4. If adultery is morally wrong (as observed by a judge) then it would only make sense to hold men and women to the same standard and make them foot equal responsibility of marital exclusivity. Ridding both sexes of that responsibility because "the law is unfair to women" (although I'd argue it's unfairly favourable to women) is not good because it's not just a matter of personal rights, but also a matter of culture. Marriage as an institution is the foundation of the family which I consider the building block of a society. And although the individual rights can be hoisted on the roof, the foundation is built with individual duties.
  5. A person who considers sexual autonomy to be of the highest priority can very well omit marriage. In India, live-in relationships are recognised by the law, and hence an easy choice for said person. It is when one wants the benefits of marriage (which are high for women, low to none for men), without accepting the limitations of it, that the problems arise. A law that equally penalises both men and women for adultery would be just as fair as the one that penalises neither.
  6. Take this example. A married woman has consensual extramarital relation with another man, which her husband finds out. He applies to the family court for divorce, stating adultery as the reason. The woman, if she chooses to misuse the law, can readily claim (retroactively or otherwise) that her affair wasn't consensual and that she was raped (false rape allegations in India aren't uncommon). With the current legal system (anonymity, legal help, National Commission for Women, Ministry for Women & Children), there is a good chance that the male adulterer can be sent to prison for sexual assault/ rape, and the husband tried for domestic violence AND the divorce be made with alimony in her favour. This is a hugely dangerous legal loophole.

I think striking down section 497 without allowing a provision for prenuptial agreements will be harmful to men (who are, in the current legal system in India, the primary victims, but aren't recognised as so), whereas it can potentially be misused by women. I'd like to hear your thoughts on this.

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