Context:

• Individual members of a Supreme Court bench hearing achallenge to the validity of Section 497 of the Indian Penal Code on adultery have all spoken against the law as it stands, indicating that this could well be struck down. And that would be the right thing to do.

Adultery:

• It amounts to breach of trust between a married couple and should thus qualify as a strong ground for divorce, but should not carry other penalties such as imprisonment.

The Law:

• The law as it stands in India is a colonial creation, formulated 158 years ago. The law has moved on in England, where adultery is no longer penalised except as a ground to claim irretrievable breakdown of marriage.
• The alimony that a divorced wife is entitled to is not diminished on account of her adulterous liaison in England and much of Europe, although that is not the case in the US, where 21 of 50 states still deem it a crime (it is a misdemeanour in New York).
• The Indian law on adultery is an unapologetic articulation of patriarchy. A man who enters into a sexual relationship with a married woman without the knowledge or connivance of her husband is guilty of adultery and can be punished with a jail term of up to five years. If a married man has an affair with an unmarried woman, no adultery subsists.
• Adultery is, in Indian law, violation of one man’s marital home by another, in which women are seen as passive objects wholly devoid of agency.

Section 497:

• Section 497 specifically says that the woman in an adulterous relationship will not be considered an abettor. This does women no favour. Modern India cannot afford to have such gender bias in its laws.

Removing such bias would mean two things.

• Adultery must be understood as violation of the commitment to sexual exclusivity that marriage entails, not as violation of a man’s marital home.
• Further, women should qualify as culpable agents, not passive objects of male will, in the offence of adultery. Marriage should sustain on the strength of mutual trust, respect and love, not out of fear of a jail term.

Conclusion:

• Modernising the law on adultery is essential to live up to the commitment to equality offered by the Constitution.