Calling it an archaic provision, the Supreme Court recently agreed to re-examine the Constitutional validity of Section 497 of the IPC. The section deals with adultery but only punishes the man with whom a married woman may have had consensual sex and only if the sex occurred without the consent of her husband. The court, hearing a petition challenging the unfairness of this section, rightly noted that it treats the woman as property of her husband as his consent nullifies adultery, while also treating the woman as a victim in all circumstances.
This is no doubt true. The Court’s decision to re-examine the validity of the provision is welcome. However, it is important to note that while the Section appears to be weighted against men, while leaving women off the hook, it also does not permit a woman to file adultery charges against a cheating husband or even his partner in such an affair. So while it may appear to ‘protect’ women, it also leaves them at a disadvantage. The thinking behind this Section is no doubt a patriarchal notion that the woman’s agency and sexuality are her husband’s to manage. It is thinking like this that long denied women the vote, and that still holds women back when it comes to representing their own needs.
However, the question must be asked: Is making the adultery law gender neutral the way forward? Is it perhaps not time we decriminalised adultery altogether? The debate on the matter has divided opinion globally. But it must be noted that adultery laws, one way or the other, are stacked against women.
Further, should consensual sex between adults be criminalised with a five-year jail term? Barring its relevance in divorce proceedings, what good comes of criminalising adultery? While adultery can wound and even end a marriage, can a moral or ethical violation of this nature be treated as a criminal one? It is hoped that the court goes beyond looking at the Section through the lens of gender discrimination to re-examining the relevance of the Section altogether.