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Significance: Supreme Court has reviewed  the constitutional validity of Section 497 of the Indian Penal Code. The Bench agreed to issue notice to the government and even 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 in such a case concept of gender neutrality is absent.

Adultery Laws in India: 

According to Indian jurisdiction, the adultery law comes under Section 497 of the Indian penal code. There are two laws pertaining to adultery:-

Section-497- Adultery:  The criminal offence of adultery is committed only when a man has sexual intercourse with another man’s wife. Only the adulterer can be prosecuted for committing the offence, and not the adulteress. Furthermore, the adulterer can only be prosecuted if the husband of the adulteress lodges a complaint before a magistrate.

Section 498- Enticing or taking away or detaining with criminal intent a married woman: It provides the details of imprisonment and fines in such a case when any woman is taken away by a person illegally.

Why Section 497 is now under scrutiny?

Section 497 is not gender neutral.Petitioners in Supreme Court argued that Section 497 is unconstitutional as it discriminates against men and there is no reasonable basis for not holding the woman criminally liable when she was a willing participant in the criminal act. The section appears to be weighted against men, while leaving women out of the trouble it also does not permit a woman to file adultery charges against a cheating husband or even his partner in such an affair. So while it may appear to protect women, it also leaves them at a disadvantage.

Previous Supreme Court decisions on adultery:

The recent petitions challenged the previous decisions by Supreme Court in the case of Yusuf Abdul Aziz v The State of Bombay where the court decided that Section 497 did not violate the right to equality enshrined in Articles 14 and 15 of the Constitution.

Also, in the case of  Sowmithri Vishnu v Union of India, petitioner argued that Section 497 does not take in cases where the husband has sexual relations with an unmarried woman with the result that husbands have a free licence under the law to have extra-marital relationships with unmarried women. Petitioner labelled Section 497 a flagrant instance of gender discrimination and contended that the provision represents a kind of romantic paternalism. However, Supreme Court defied the arguments of petitioner.

Law Commission recommendation on adultery law: The Law Commission of India under the Chairmanship of Mr. K.V.K. Sundaram in its 42nd Report in 1971 primarily pondered over two issues, that is whether adultery should be punishable and whether offence should be limited to men only. The Law Commission of India recommended that the exemption of wife from punishment under Section 497 should be removed and that the maximum punishment of five years prescribed is unreal and not called for in any circumstances and hence should be reduced to two years. The Law Commission of India recommended the offence of adultery to remain in the Penal Code.

Should adultery be a criminal offence?

Supreme Court argued that criminalisation of adultery laws have led to more stability in marriages. It observed there was a decrease in the adultery cases across India.

However currently only 20 countries in the world criminalize adultery. Majority of these nations are governed by Islamic law. This includes Pakistan, where adultery is punishable with death. The only industrialized country to criminalize adultery is the United States of America, where it remains an offence in 18 states.

The question remains whether it should be a criminal offence in the first place let alone whether it should be a gender-neutral offence. This is because 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 imprisonment.

Conclusion: The Indian Law has been known to advocate gender discriminatory and patriarchal lines of thought. The recent examples of marital rape and abortion laws in India are instances for such issues. It is increasingly clear that such laws have no place in a modern society which needs to be developed  beyond the colonial mind set and should evolve with the current trends around the world. Most countries have decriminalized adultery, thus India should also follow their lead and do away with such outdated laws, otherwise they will continue to further expose the stagnancy of the legal system in India.