Should adultery be criminalized?

Acts that deceive a person are explicitly prohibited by Indian criminal law. However, it is surprising that, over the past few decades, there have been difficulties in making an act that violates the sanctity of a pure social institution like marriage through deceit and lies a crime.

The contentious issue of whether marital infidelity should be treated as a criminal offence has been brought back up by a petition in the public interest, Joseph Shine v. Union of India. Despite the fact that adultery by the wife is a crime, all personal laws provide both spouses with a basis for divorce. The husband may charge the wife’s lover under Section 497 of the Indian Penal Code, but the wife is not subject to prosecution.

The Supreme Court’s inquiries were restricted to the legality of criminalizing the wife’s adultery but not the husband’s, or of prosecuting the lover but not the wife as accused, as the earlier challenges to adultery were primarily based on discrimination.

In Yusuf Abdul Aziz v. State of Bombay (1955), the court defended the exclusion of the wife from prosecution as a measure to protect women in response to the accuser’s objections that it was unfair. In Sowmithri Vishnu v. Union of India (1985), the wife argued that by preventing her from bringing charges against her husband and his lover, the law gave men permission to engage in extramarital affairs. A small class of adulterous relationships were made crimes by the court on the grounds that the woman was the victim and not the perpetrator.

In V. Revathi v. Union of India (1988), the court rejected the argument that the adultery law was biased. The court explained this as safeguarding the sanctity of marriage by noting that the law did not permit either the wife or the husband to prosecute one another for adultery, but instead targeted only the “outsider” who “invades the peace and privacy of the matrimonial unit.”

What is notable about Section 497 is that only a man may bring an adultery case against another man. The authority to regulate his legally married wife’s sexuality belongs to the husband. Therefore, monoandry appears to be the fundamental tenet of the marriage power dynamic. The wife must be protected from other men because she is a man’s sole and exclusive possession. This sole and exclusive claim to her body must be made by the husband, who must control her sexuality. A woman cannot make this specific accusation against a man because, in this entire flawed discourse, she is an object of possession. This is an archaic provision itself.

In a recent observation, even the supreme court expressed the opinion that this clause treats women like personal property. It was noted that if the husband agreed for the wife to consent another man, the Section’s fulcrum of the offence would be eliminated. Why is it still in the law book if it is so discriminatory? The state and society’s general patriarchal structure are the root cause of the problem. The fact that any woman can choose to engage in sexual activity without regard for the institution of marriage does not support patriarchy or our laws.

No marriage can take control over one’s body. The existence of adultery in the criminal statute is violative of fundamental right to live with dignity. Any amendment to the section 497 would leave unaddressed theories.

The law ought to be repealed. The very premise is hostile to the autonomy and dignity of women, to start. Second, it is incomprehensible why an unmarried woman having sex with a married man should not be held accountable, even if the defence is that marriage is an institution that must not be violated. The government which has been taking constant efforts to rule out vieux jeu laws, has been silent on adultery. It is past time for this law to be consigned to history’s trash can.