By striking down Section 497 of the Indian Penal Code which criminalised adultery, the Supreme Court has yet again affirmed the right to equality, and choice and sexual autonomy of women. It is another remarkable judgement, like the recent one that scrapped Section 377. If Section 377 had criminalised homosexuality, Section 497 made adultery a crime, adopting a strongly patriarchal attitude to sex and marriage and targeting women. It said that any man who has sexual intercourse with the wife of another man without the consent of her husband can be booked for the crime of adultery. It allowed the husband of the woman who is in an extramarital relationship the right to take legal action against her partner, but it did not allow the same right to a woman whose husband has an extramarital relationship. It also let off the woman in an extramarital relationship but punished the man even when the relationship was consensual.
The idea behind Section 497 was that a woman is a man’s property. It considers adultery as a problem between two men, which arises when one man violates the ownership rights of the other man over his wife. The five-judge Constitution bench headed by Chief Justice Dipak Misra unanimously termed Section 497 unconstitutional, arbitrary and violative of fundamental rights. The gender-insensitive and biased nature of the Section has been discussed for a long time. It is not just women’s groups but others have also found it unequal and discriminatory. The court made this clear with its statement that treating women as chattel and husbands as their masters is unconstitutional, and it is time to say that the husband is not the master. The provision also deprived women of their sexual autonomy, as Justice DY Chandrachud, who was part of the bench, observed.
All the judges were equally critical of Section 497 and had no hesitation in striking it down. Like Section 377, it was also a colonial law and had existed in the statute book since 1860. It should have been scrapped long ago. But it should be noted that the central government had a different view of the provision. The government told the Supreme Court in July that it did not want any dilution of the adultery law as that would hamper “the sanctity of marriage and the fabric of society at large’’. That showed how archaic and retrograde its view of man-woman relationship and marriage is. It fails to see marriage as an equal relationship between a man and a woman and has a male-centred view of its sanctity. Fortunately, the court and the country are ahead of the government.