SC Slams Adultery Law: Another Big Win for Gender Equality

“Husband is not the master. Equality is the governing parameter.”

A five-judge bench of the Supreme Court recently struck down section 497, which criminalised adultery. The Supreme Court dissolved the law saying that it was archaic, erroneous and irrelevant on several parameters. A colonial hand me down, it treated women like chattel. For instance, having sex with someone’s wife was only an offence under the penal code if it was done without the man’s consent or connivance, effectively rendering women as properties of their husband forced to bear their will.

Moreover, the law only punished the male involved-granting women legal impunity. Although beneficial, the law was grounded in the belief that men were always the seducer while women were like helpless and innocent sheep, who couldn’t help being seduced. This mollycoddling law was sexist, as it not only held men solely responsible for a consensual act committed by two people, but also belittled the sexual autonomy of women. The woman is ripped of her individuality and is passed on from father to husband. This law is also reflective of the morals of the Victorian era in the 1860’s (when it was passed into existence), as according to the judges “the exemption of women from criminal liability was not a benefit, rather, part of a broader set of presumptions that effectively caged and limited them.”

Adding to the abhorrence, similar grievances by women were not entertained, i.e. if it was the husband who was found cheating, the wife could not file a case against her husband, or the other woman. Activists all around the country found it unacceptable that for the law adultery was a dispute only between men and could not possibly involve a woman, forcing the role of a submissive housewife down her throat.

Owing to the considerable social progress we have made, today we can see this law is a direct violation of article 15 of the constitution, which protects people from discrimination on the basis of gender, which is why adultery is considered as an “archaic law, manifestly arbitrary, and [offends] the dignity of women.” Women are no longer passive bystanders to be handed over from one man to another, and any law that hurts the dignity of women or is in any way unfair to them, must see the same fate as section 497, and be declared unconstitutional.

There have been many protests against the striking down of this law, and most of them seem to take the stance that instead of rendering it obsolete, the SC should have expanded its applicability to everyone. However, we must realise that whether or not we remain loyal to our partners is a subjective choice, while all criminal offences must be categorised through absolute objectivity.

Criminalising something that is a choice made in utmost privacy therefore, is not only criminalising a way of life, but subjecting interpersonal relationships (where there was no violence) to the rigours of criminal law would amount to an unwarranted intrusion into the right to privacy.

The most radical part of the verdict, though, came from Justice Chandrachud – a part of the bench — who said that partners in a marriage do not mortgage their sexual autonomy to each other, effectively removing morality and traditional values as valid arguments from the stance against adultery.

This is the second landmark judgement India has witnessed in the last 20 days, the first one being the decriminalisation of homosexuality. This second judgement speaks volumes about the renewed sense of responsibility towards furthering social progress that the current judiciary feels, and hints that we are finally freeing ourselves of our colonial inheritance and moving towards a gender equal society. We are moving away from moral impositions and societal expectations upon individuals towards a more accepting society. This is a victory to be celebrated not only by women, but also men.

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