Finally, the Victorian era seems to be coming to an end – the judgment on Section 497 is progressive in many ways. In the context of changing social realities of our times, especially the transforming gender equations, Justice Chandrachud’s lucid observations make a mark. He has cited the violation of Articles 14 and 21, saying that Section 497 perpetuates the subordinate status of women, denies them dignity and sexual autonomy, and is based on gender stereotypes.
I’ve always had issues with the term adultery, and Section 497 has been problematic for its patriarchal rootedness and moralistic overtones. CJI Misra’s words resonate this very thought: “It is typically an archaic provision”. He further says, “While it appears to be pro-women by protecting them against prosecution, it actually is anti-women as it treats them as husband’s chattel. Where did they get this concept of the husband for a woman to have intercourse with another married man?”
Justice Indu Malhotra asked if ‘Adultery could be treated as a crime, it could be a moral wrong towards spouse and family’. This is a historic moment, where the judges have decriminalised adultery and upheld the Constitution.
This judgement becomes even more contextually relevant since it is a continuum of the recent judgment on Section 377 and reaffirms the principles of equality and justice.
There is also a need to look afresh at the institution of marriage, especially from the perspective of women, who are not merely looking for economic and social security or acceptance, but partnerships. There is a small percentage of educated, economically independent women who are also seeking equality within marriage.
The historicity of this judgement will have positive ramifications and pave the way for a gender-equal and just society..
Women’s rights activist and professor of sociology at PG Government College for Women, Chandigarh