In the recent years, the liberal approach of the Supreme Court can be seen through its landmark judgments like the ones relating to the right to privacy, section 377 of IPC, Sabarimala temple case and many more. It also shows the journey of the SC as a constitutional body – how it has evolved over the decades and at present times, how it puts individual freedom at the forefront while deciding on such issues. Among them the recent judgement against adultery is remarkable. The SC has recently struck down section 497 of IPC as unconstitutional which was against the constitutional values and principles. Relating to this the apex court struck down section 198(2) of CrPC under which husband alone could complain against adultery.
Section 497 of IPC criminalised adultery by stating that if a man had consensual sexual intercourse with a married woman, without her husband’s consent, he is punishable by law. Hence the law was found to be in violation with Article 14, 15 and 21 that confers to right to equality, discrimination on the ground of sex, and the right to life and personal liberty including privacy, dignity, autonomy as the section treated women as the victim of offence and ‘property’ of her husband. Besides, it was not an offence if a man had sexual intercourse with a woman after getting her husband’s consent. Again, the petitioners wanted the adultery law to be made gender neutral. This is because the law calls for the man to be punished in case of adultery, but no action is suggested for the woman.
Marriage, in a constitutional regime, is found to be based on equality between spouses. Each of them entitled to the same liberty which Part- III of the constitution guarantees. Therefore, it would be discriminatory and a violation of the right to equality if both of them are not provided equal rights. Moreover, for any act to be a crime, it has to be committed against society at large. But the issue of adultery between spouses is a private matter and hence it could be a ground for divorce under civil law but not a criminal law. Furthermore, no justification can be given by the state for penalising people with imprisonment for making intimate and personal choices.
Coming to the practicality of section 497 of IPC, the National Crime Record Bureau (NCRB) does not even maintain a database on adultery cases as the number of cases and conviction rates are negligible. It is because the proof of sexual intercourse is required to prove adultery, which is seldom available as everything happens behind closed doors. Hence such an offence is almost impossible to prove. However, the judgement will put an end to the practice of couples using the section more as a weapon because it is common for concerned husbands facing dowry harassment charges to hit back against the helping estranged wife by accusing them of adultery and prolonging criminal proceedings.
The Centre’s stand in this case is that it would be against the sanctity of marriage, Indian culture and ethos to dilute the offence of adultery as the section supports, safeguards and protects the institution of marriage. However, in this regard, the court rightly pointed out that adultery is not a reason for failed marriages, rather it is a consequence of a failed marriage. The court also ruled that although adultery is no longer a crime, if any aggrieved spouse commits suicide because of the partner’s adultery (Section 306), it could be treated as an abetment to suicide- a crime.
There is a famous quote -“Family is the future”. There is no doubt that family is an important institution and it needs to carry our nation forward. In every conceivable manner, the family is linked to our past and bridge to our future. But these kinds of lopsided laws harm it more than they protect it. There is a saying in a family that having too many laws and too criminal laws in a marriage is like ‘having a bull in the china shop’. So, for a constructive purpose, we can have some frameworks like Family Education Law and Premarital Education Law, which would strengthen the relationship between spouses, enhance mutual understanding in a family and respect for each other.