The central government had argued on Wednesday, in a petition hearing by the apex court of the country, that “diluting [the] adultery law will impact the sanctity of marriages”. The Supreme Court (SC) is hearing a petition challenging the constitutionality of Section 497 of the IPC. The Section deals with the prosecution of adultery as a crime, and states that any man who has sexual intercourse with the wife of another man, without the consent of her husband, can be held accountable for the crime of adultery. While the law allows the husband of the woman in an extra-marital relationship the right to take legal action against his wife’s partner, it doesn’t extend similar rights to women in marriages where the man is having such a relationship. Similarly, it lets off the woman in an extra-marital relationship while punishing the man even though the relationship is consensual. That violates all established principles of justice—including that established under Article 14 of the Indian Constitution which explicitly talks about “equality before the law”.
Shouldn’t India, like most nations, decriminalise adultery? In conferring the right to legal action upon only men, the law denies women agency on the one hand, and reinforces a patriarchal understanding of marriage on the other. Such a law has little place in today’s context. Instead of having the Supreme Court waste its precious resources, it would be better if the government were to provide for the party remaining faithful in a marriage to get adequate reparations in such cases. The Centre, of course, has told the apex court that the law is necessary to preserve the sanctity of marriage and protect the institution. However, it would do better to understand that sanctity is void when a person enters an extra-marital relationship, and that no quantum of punishment is going to restore it.