The Supreme Court judgement on Thursday striking down unanimously the 158-year-old Section 497 of the Indian Penal Code that makes adultery a punishable offence for a married man if he had sexual relations with a married woman without the consent or connivance of her husband, is a verdict that evokes mixed feeling. Chief Justice of India Dipak Misra, who pronounced the judgment in concurrence with Justice AM Khanwilkar, said while adultery could be a ground for civil issues, including dissolution of marriage, it could not be a criminal offence. Inherent in this is a tacit recognition that adultery could be deemed to be unlawful though it is not a criminal activity. The five-judge bench delivered four separate but concurring judgments. The apex court also declared Section 198(1) and 198(2) of the CrPC, which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional. What was strange about the archaic law that has now been struck down as also of the new judgement is that there is no deterrence laid down for a woman involved in the act of adultery while the man was liable to be tried for criminal offence.
There is substance in the observation of those who oppose the decriminalising of adultery that the judgement could undermine the ‘sanctity of marriage’. Arguably, would it have served the ends of justice better if adultery had been criminalised or decriminalised for both men and women? While the old law deserved to be changed, it is debatable if this was the way to do it. The observation of Delhi Commission for Women (DCW) chief Swati Maliwal that the judgement is tantamount to giving an open licence to commit adultery to all needs to be pondered over. Her remark that most women who come to the DCW are those who have been cheated upon by their husbands and that this judgement will only aggravate the pain of women is a point of view that cannot be brushed aside. Chief Justice Misra’s observation that if any aggrieved spouse ended her life because of her partner’s adulterous relation, it could be treated as an abetment to suicide if evidence was produced also puts the judgement on a debatable footing.
