After the landmark judgement on Section 377 of Indian Penal Code (IPC) that criminalized homosexuality, Supreme Court has now struck down Section 497 that criminalized adultery, calling it as unconstitutional. The sexist law treated women as chattel and a property of their husbands. These laws were not only draconian legacy of imperialism but also systematically attacked the people in question.
Evidently, on Saturday, the social media was flooded with people appreciating and sharing the euphoric pronouncements made by the judges. While some referred it as the outgoing CJI Dipak Misra’s gift to the country, others pointed out at Justice D Y Chandrachud’s overruling of his father Justice Y V Chandrachud’s judgement on adultery. In 1985, then CJI Y V Chandrachud, along with Justices R S Pathak and A N Sen had held Section 497 valid. Thirty-three years later, his son Justice D Y Chandrachud said, “We must make our judgments relevant to the present day. The law on adultery is a codified rule of patriarchy. Respect for sexual autonomy must be emphasized. Marriage does not preserve the ceiling of autonomy. Section 497 perpetrates subordinate nature of woman in a marriage.”
But the judgement hasn’t been welcomed by everyone and has evoked mixed responses. What was seen as a step up on social progress and equality, was also seen as a downward spiral on the ladder of our morality. The 158-year controversial adultery law gave the right to the husband to file a criminal case against his wife’s paramour with no criminal liability on the wife. However, it did not give the wife the same right to sue the paramour of her husband.
As Sushmita Dev, the Member of Parliament and the President of All India Mahila Congress puts it, the law treated women as a non-entity. She explains, “Your right to sue and your right to be sued are both rights of an individual. It’s not allowing you to be sued, despite the fact that you are also part of the adultery, and neither it is giving you the right to sue, so either way, it is treating you as a non-entity of the society.” She adds that the basis of the law was not to protect women but to stay the mentality that their say and their will does not matter.
The law, which held a patriarchal control over a woman’s body, also raised the questions on the dignity of women. Even the CJI said that it’s time that the husband is not the master, and this or any other kind of “unequal treatment of women invites the wrath of the constitution.” Moreover, the law has also been misused in several general and especially in domestic violence cases. Flavia Agnes, a leading women’s rights lawyer and co-founder of Majlis, a legal and cultural resource centre, has had to deal with such deterrents. She elaborates, “If any woman is dealing with domestic violence or any other problem, and if any man is helping her, the husband would go and file a criminal case against that man claiming that he is having an affair with his wife. The woman would always be afraid and would have a sword hanging on her head.”
In a world where modern relationships are bitten by the bug of polyamory, the moralistic discourse around what should a consensual relationship between two people be like reflects the country’s aversion to adapting with the changing times. For those challenging this move, the decriminalisation comes as a weakening of marriage as an institution, ruining the ‘sanctity of marriage’. Swati Maliwal, the Chairperson of Delhi Commission of Women tweeted under the handle @SwatiJaiHind, ‘Totally disagree with SC on adultery. They’ve given license to married couples for adulterous relationships. What’s sanctity of marriage then?’ Echoing the same, Abha Singh, former civil servant and an advocate practicing in the Bombay High Court, says, “If you are doing away with the law, you are ruining the sanctity of marriage by opening the bedroom of a married couple to anyone, because you are saying that it’s no longer an offense. Marriage as an institution will definitely become archaic because now there will be no commitment.”
Even though adultery is no longer a crime, it can be used as a ground for divorce. And if it leads the partner to commit suicide, the adulterous wife or husband could be prosecuted for abetment of suicide under Section 306 of the IPC. For Abha, these provisions prove that SC is openly accepting that there will be an increase in the divorce and suicide cases. However, Priyanka Chaturvedi, the Convenor and National Spokesperson of All India Congress Committee (AICC) believes that these provisions will actually help in maintaining healthier relationships. “Maintaining it as a ground for divorce will uphold the balance that a family and relationships need,” she says.
Along with the other debaters, Abha feels that there’s a requirement for a gender-neutral law instead. She rues, “Rather than removing the anomaly of the law, you have struck down the law, giving a green signal towards an open marriage. What will happen to the children of such marriages? You could have made the law gender neutral, instead.” Abha, who was also an intervener in the case, strongly believes in a need for an alternative law.
But having worked four years with the matrimonial law, Sushmita thinks that gender-neutral law would not have been a solution. “If you think a simple law can change a situation in two people’s marital life, then I think you are in a La La Land. You are unnecessarily burdening the criminal justice system,” she says. Sushmita highlights, that the problems arising out of the anomalies would have continued anyway. Illustrating an example, she says, “If I have a divorce petition pending in court for ten years, and I am sleeping with somebody else, instead of being celibate, I can be sued for adultery. What nonsense! Adultery is not a crime, there was no reason for it to be criminalized.”