Let's be adult about adultery

Updated: Oct 06, 2018, 10:01 IST | Priyanka Dharwadkar and Arita Sarkar

No, the apex court has not certified extra-marital affairs; it has just made an important, and needed, tweak in the law. mid-day breaks down the landmark judgment and the reactions

Let's be adult about adultery
Illustration/Uday Mohite

The SC was on a roll last month — early September it struck down Section 377 to give the LGBTQ+ community the same legal rights as others, and on September 27, it decriminalised adultery. It scrapped IPC Section 497, calling it an "archaic" law and saying the "husband is not the master of the wife". The judgment relied on themes of 'constitutional morality', 'individual dignity', 'sexual agency', 'gender parity' and 'transformative vision of constitution'. But just to make something clear, the top court is NOT saying it's fine to philander; all it has done is converted it into a civil offence and grounds for divorce.

Before and after
In what is probably the last conviction under Section 497, the Rajasthan HC found a resident of Jaipur district guilty of adultery, for cohabiting with a man's wife.
This Chennai woman, on the other hand, killed herself on Saturday after her cheating husband cited the SC judgment and refused to end his affair with another woman, saying the police can no longer take any action against. He has been detained in her suicide investigation and is being questioned.

Historically speaking...
* There's patriarchy written all over this 'law' that has been mentioned in the holy books of several religions — enacted just to stop married women from taking multiple lovers; polygyny, on the other hand, was not a problem.
* Christianity and Judaism prohibits adultery in the Seventh Commandment, prescribing capital punishment for sexual relations between a man and a married woman.
* Under Muslim law, it is defined as sexual intercourse by a person (whether man or woman) with someone to whom they are not married. Considered a violation of the marital contract and one of the major sins condemned by Allah in the Qur'an, punishments are reserved to the legal authorities.
* Hindu texts appear divided on it with some calling it a "heinous offence" and others a "basic fact of human life". In Buddhism, it is considered immoral and originating from greed in a previous life.

Legal point of view
'Earlier, the section punished sexual offence committed by the wife with only the husband allowed to file a complaint. That's no longer the case... However, I do feel there are other ways of achieving equality. It should have been criminalised both ways, which would allow the institution of marriage to flourish'
Aabad Ponda,
advocate, Bombay High Court

'As per the original law, if a woman commits adultery, the husband has the right to file a criminal case against her paramour. The woman would be mentioned in the case but not made party to it. The understanding is that a woman is her husband's property... It's a Victorian concept and is redundant. Both husband and wife now have the right to file a case under civil law and seek divorce. That said, I don't think the judgment will encourage or discourage adultery. These things will happen, either behind closed doors or out in the open'
Mrunalini Deshmukh,
senior matrimonial lawyer

Others that need to be done away with
Sedition law
IPC Section 124A has been used against youths voicing dissent. In July 2017, the NCRB recorded 165 arrests in the last three years. In colonial India, sedition was first introduced in 1835 and legally made into a criminal offence in 1870.

Blasphemy law
IPC Section 295A has been imposed for banning publication of many books and other content. The law was inherited from the British colonial government during Punjab's religious uprising and repeal of the Press Act in 1920.

The Dramatic Performance Act
In 18th century, India used theatre to exhibit rebellion against the colonial rule. Hence, the British introduced this Act in 1876, which prohibited dramatic performances of "scandalous" and "defamatory" nature. The law still exists and post-1947 many states introduced it and amended it accordingly.

05 No. of judges on the panel that scrapped the section
1860 Year in which the one-sided adultery law was enacted in India

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