Relevance: GS Paper I & II (Indian Society and Polity & Governance)
Why has this issue cropped up?
The Supreme Court has struck down a colonial-era law -Section 497 of the IPC- that made adultery punishable with a jail term and a fine. Now, it is only a ground for divorce.
The gender inequal laws
- 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; aptly, the Court also struck down Section 198(2) of the CrPC under 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.
- Further, due to 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. It was aimed at preventing the woman from exercising her sexual agency.
A welcome move
It is a progressive step 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.
Failure of legislature
- However, it is a matter of concern that refreshing the statute books is being left to the judiciary, without any proactive role of Parliament in amending regressive laws.
- The shocking message here is not merely that 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.
