The Supreme Court of India is currently busy with several important cases, and the judgments will decide how the law of the land will look at consent between adults, regardless of their gender. While the constitutionality of Section 377 – which criminalises ‘sex against the order of nature’ – is one such case, the other question that the SC is trying to answer, that is equally important, is that of Section 497, which says that adultery is a criminal offence.
The Constitution Bench of the Supreme Court is re-examining the constitutional validity of Section 497. In December 2017, Joseph Shine filed a petition challenging the section. A three-judge bench, headed by Chief Justice of India Dipak Misra, had referred the petition to a five-judge Constitution Bench, admitting that the law does seem to be archaic. When the matter came up during the Section 377 hearing, the Centre filed its response. Joseph Shine’s petition challenged Section 497 IPC and Section 198 of CrPC, on the grounds that it is discriminatory against men.
Section 497 states: “Whoever has sexual intercourse with a person who is and 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, and shall be punished with imprisonment.”
In simple words, adultery is defined as a person having sex with a man’s wife without taking prior consent from the husband. The law only applies to men – women can neither be charged with adultery, nor can they be the complainant.
The Centre in its response to the petition said, “Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds.”
While the Centre is open to making the law gender neutral, should adultery remain a criminal offence? Especially in the face of Right to Privacy – which was upheld by the Supreme Court in 2017 – what happens to the criminality of the adultery law?
Woman as property of husband
“The current definition definitely treats the woman as property,” says senior lawyer Geeta Ramaseshan, who argued in favour of the petitioner in the Revathy vs. Union of India case in 1988 – where the petitioner demanded that a woman should be allowed to file a case against her husband in case of adultery.
“In both the earlier cases, Sowmithri vs Union of India and Revathy Vs Union of India, the same argument was put forth. As a matter of fact in Revathy’s case which I argued, the Supreme Court even equated the offence to a man trespassing into the marriage of another. The woman has no agency at all,” she explains.
Senior lawyer Sudha Ramalingam says, “It is an extension of our patriarchal ideologies. So if the husband consents (to another man having a sexual relationship with his wife), it is not a criminal offence. The wife's consent plays zero role in the law in its current format. The wife also has no right to sue her husband under this law. The wife who is the victim of adultery nor the wife of the adulterer (who is in the alleged relationship) have any right to prosecution. Women can thus be neither the prosecutor nor be prosecuted under this law. It is totally male friendly and anachronistic.
‘Civil, not criminal’
Sudha asks, “Why do you have adultery as a criminal offence?”
Stressing that adultery is only between consenting adults – Sudha explains that the concept of a ‘wrong’ comes in only because of marriage.
“As a concept itself, adultery is to protect the sanctity of marriage. If there's no marriage, there's no adultery,” she says, adding that therefore it should only be considered a civil wrong and not a criminal offence.
Woman as ‘victim’ of consensual sex is problematic
Amba Salelkar, a lawyer with the Equals Centre for Promotion of Social Justice, says that the narrative around the sanctity of marriage and the woman being a victim itself needs to change.
“I don't understand how the sanctity of marriage is preserved upon the understanding that the wife is a semi-unwilling party, who ended up having sex with another person. You're not calling it rape, you're calling it consensual sex. If a woman is having consensual sex with somebody who is not her husband or without the husband's permission, that becomes an offence. What we probably need to consider is that the whole framing of the law – where the wife is not an abettor, but is considered to be a victim – is what is problematic,” Amba says.
Right to Privacy
Experts also say that Section 497 is in contravention to Article 21 of the Constitution, which guarantees a right to life and liberty for all individuals. This includes the right to dignity, privacy and autonomy. In 2017, in a major verdict, the Supreme Court ruled that the right to privacy is a fundamental right.
“I think the Right to Privacy judgement is a gamechanger in the consideration of adultery because no one has really looked from the perspective of Right to Privacy. The idea that consensual sexual acts be subject to the criminal justice system is the issue, because it is meant to be the state prosecuting an accused person,” Amba says.
Moreover, popular morality should not interfere with the laws and Constitutional safeguards provided for, she adds.
“Sexual intercourse between consenting parties should not be subject to police investigation or criminal justice process,” Amba says.