The outsider: On adultery law

There is no doubt at all that a reconsideration of the law on adultery is long overdue. By agreeing to have another look at the constitutional validity of Section 497 of the Indian Penal Code, under which men can be prosecuted for adultery, the Supreme Court has re-opened a question that has been decided thrice in the past. This time the court will have to do more than pronounce on whether the provision discriminates against men on the basis of gender and gives an unconstitutional exemption to women. While agreeing to issue notice to the government, the Bench has observed that the provision is archaic. It has further noted that in a case of adultery, one person is liable for the offence but the other is absolved, and that the concept of gender neutrality, on which criminal law normally proceeds, is absent. The court has also noted that once the consent or connivance of the husband is established, there is no offence of adultery at all. It rightly describes this as subordination of a woman and something that “creates a dent on the independent identity of a woman”. In the past, the Supreme Court has emphasised that a married woman is a “victim” and the man is “the author of the crime”. It has treated the exemption given to women as a special provision that has the protection of Article 15(3). It has rejected the argument that it is discriminatory by pointing out that neither a man nor a woman can prosecute their disloyal spouses. It is only the ‘outsider’ to the matrimonial relationship who can be prosecuted, and that too by the aggrieved husband alone. This is made clear in Section 198(2) of the Code of Criminal Procedure, a provision also under challenge.

The matter now before the court goes beyond the limited question of the culpability of women involved in a relationship outside their marriage. It raises the related question whether there is an implicit subordination of the will of a woman. However, merely positing the issue as one of discrimination in the way the law treats two parties in a consensual relationship because of their gender is misleading. The real problem is the very fact that adultery remains a crime in the form of an archaic colonial era provision. Many countries across the world do not treat it as an offence any longer. In 2012, a United Nations Working Group on laws that discriminate against women wanted countries that treat adultery as a crime, to repeal such laws. It is one thing for adultery to be a ground for divorce, a civil proceeding, and quite another for it to be a basis for incarceration. It will be a travesty if in the name of empowering women the ambit of the criminal law is extended to cover both genders. The correct course will be to dispense with this archaic provision altogether; it serves no real purpose in the criminal statute.

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Printable version | Oct 24, 2020 10:01:59 AM | https://www.thehindu.com/opinion/editorial/the-outsider/article21615771.ece

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