Section 497 of IPC, 1860 said, that any man who had sex with a married woman, without the said woman’s husband’s consent; he had committed a crime. Let’s understand this- a man, married or unmarried, if had sex, with a married woman, without the permission of the man, to whom she is married had committed a crime, so grave that he may be jailed for a period of five years.
The challenge that led to the striking down of the law, was by an NRI, living in Italy, who challenged this as being discriminatory to men and violative of Article 14 of the Constitution.
The Court, constituted a Constitutional Bench, headed by Dipak Misra CJ, along with Khanwilkar J, Chandrachud J, RF Nariman J, Indu Malhotra J.
The judgement is a welcome move, in recognizing and further cementing the idea of women being equal to men, and not inferior, which this law clearly purported. Whether or not one thinks of flings and extra marital affairs as okay, acceptable or absolutely unacceptable and abhorrent, it isn’t the job of the court to impose individual morality, it’s job is to follow constitutional morality, which talks about equality, no0n discrimination as its basic tenets.
For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his wife have an affair with someone else. Rather, the judgement points out, it serves to preserve the ‘proprietary rights’ a husband has over his wife. Moreover, the wife cannot file a complaint against her husband or his lover. There are no provisions to deal with a married man having an affair with an unmarried woman or a widow.
It has to be noted that the ‘sanctity’ argument was used by ASG Pinky Anand, while stating the government’s stance of wanting to retain this provision. If it’s purpose would have indeed been to preserve the marrige, it would have given the married man’s wife the right to complain against her husband, and his lover, which it did not give.
The judgement makes it amply clear that by criminalising the act, the law was invading an extremely private sphere – that of matrimonial life. According to Article 21 of the Constitution, everyone is guaranteed dignity and personal liberty, but by making adultery a criminal offence, individuals would be deprived of dignity and privacy, much like Section 377 did with the LGBTQ+ community. “The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure,” Indu Malhotra J, wrote in her judgement, thus questioning why it wascriminal offence in the first place . She added that since adultery was a moral wrong, and not a public wrong which affected the lives of scores of others, it didn’t deserve to be classified as a criminal offence.
The question that has been put to me, and to many others, is “What do you think will be the long term effects of this judgement?” My answer to that is, that I think it won’t have much of an impact on society. Affairs and flings continued in full force while the law was valid, and will continue, after the law being struck down. However, it clearly frees the woman’s emotions from her husband’s purview.
The judgement is welcome, because of the strong words used to imply the autonomy and equality of a woman, which in today’s time, needs to be reiterated time and time again. Over the years, legal reform has had a significant role in altering the position of women in societal orderings. This is seen in matters concerning inheritance and in the protection against domestic violence. However, in some cases, the law operates to perpetuate an unequal world for women. Thus, depending on the manner in which it is used, law can act as an agent of social change as well as social stagnation which is what it did here, it didn’t let the woman come out of a subservient position, even in matters so deeply individualistic, to let her choose whatever she wanted to for herself.
It’s astounding that this section continued to be in force for more than a hundred and fifty years!