According to Section 497 of the Indian Penal Code (IPC), a man who has sex with a woman “whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery".
Section fa497 treats a woman as a property of her husband and criminalizes adultery through patriarchal control over women’s bodies. Section 497 under the IPC implied that a woman’s body is not her own and, on a whole, it denied women: 1. the right to her body in the form of agency, autonomy and independence; and 2. the object of desire and sexual autonomy. This section further violated a woman’s dignity by preventing her from exercising her freedom and agency to formulate choices for herself, which is otherwise guaranteed by the Constitution.
I welcome the judgement of the Supreme Court striking down the 158-year-old law based on Victorian values. Originating in the colonial era, the law on adultery stands archaic today, as it held that men could file criminal complaints against suspected men, who they would allege were having affairs with their wives. This law held a woman as a chattel of her husband, who could legally charge the man his wife was having sexual relations with outside her marriage. When it comes to light that the wife is having relationship outside marriage, her torture by the husband and family is inevitable. Under this law women were not “protected" as alleged by many, because women could not charge the adulterer husband, as women were pursed by their husband as property. It is her purity that was guarded by her husband. He is allowed to charge the other man who defiled his “property" because, by getting defiled by another man, she threatens the genetic purity of the man, the husband .
Section 497 further complicated the existing scenario by giving agency to the husband to sue the man his wife was having a relationship with. Abolishing Section 497 loosens the first complicated knot in the institution of marriage and relationship. The discourse is now open for building healthier relationships. Section 497 did not address the core issue of an unhappy marriage. Instead it made a woman the bone of contention between the husband and the other man.
Society at large will require its own time to internalize this new development as marriage is viewed as a sanctified institution, wherein there exists a considered silence on issues within marriage. Practices such as kanyadaan, virginity and sexual chastity are created to reinforce the belief that there is a lack of ownership of a woman’s own body as these are by-products of how patriarchy operates to the detriment of all concerned. More often than not, adultery is often a result, rather than cause, of an unhappy marriage. However, the five-member bench of judges still held that adultery stands as grounds for divorce. The implications will loom large on society, but that’s a matter of time.
It is interesting to note that adultery in the UK is not a criminal offence but, like many other countries, one of the main reasons given for divorce. It is also considered illegal in 21 American states. Since adultery is prohibited in Sharia or Islamic law, it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh and Somalia. Over the years, more than 60 countries have done away with laws that made adultery a crime.
Dr. Ranjana Kumari is director, Centre for Social Research, an NGO working for women and girls in India.