The Supreme Court in a historic judgment struck down a colonial-era law which had the provision of imprisonment of five years to men for adultery, but not punishing the women, treating her as a property of her husband. Section 497 of the Indian Penal Code punished a man who has an affair with a woman "without the consent or connivance of" her husband. However, adultery is still a ground for filing divorce.
The verdict was pronounced unanimously by a five-judge bench headed by Chief Justice of India Dipak Misra, who took a firm stand against this patriarchial and gender biased law, saying making adultery a crime is retrograde and would mean punishing unhappy people as adultery might not be the cause of an unhappy marriage, it could be the result of one.
IPC 497 was also against the Feminist Jurisprudence as women had no say in the entire case, as Section 198(2) of Code of Criminal Procedure 1973 has only given rights to the husband only in this matter that he is entitled to file a complaint. The fundamental notions of patriarchy are too evident to be ignored. These provisions look at married women as sufferers or victims, not capable of either protect themselves against the salacious behavior of other men and by refusing a criminal remedy to the wife when her husband is involved in adultery.
The Central government argued that this law should not be scraped off as it preserves the ‘sanctity of marriage’. The stand taken by the government represents a feudal mindset which treats the women as an asset of the husband. If a man commits adultery, then there is a breach of trust between the partners, but the Hindu Marriage is a sacrament, not a contract and breach of trust in a sacrament doesn’t amount to a penal offense. The ‘sanctity of marriage’ was impured the minute adulterer made sexual relations with another woman, but if there is consent of the husband, the institution of marriage will remain guarded? Women have always been a tool to satisfy men ego where it or some traditions prevailing in the society (Sati Pratha, Bal Vivah) where the consent of women was of no importance and she was treated to become a wife and if her husband dies, her life is of no use, but the time evolved and these patriarchial issues were abolished, but even today there are many laws and restrictions imposed on women where she doesn’t have the freedom to think freely. Adultery was one of
A large section of the society applauded the Supreme Court’s verdict leaving a few exceptions who were busy criticizing the decision presenting arguments about the culture of the society will hit a new low, the decision will result in more divorces and families will suffer from this decision. First of all, by commenting on the judgment, they are violating the principle of Positive School of Law which states that a law is a law. It is not possible to deduce law as good or bad or moral or immoral. It can only be regarded as valid or invalid and while presenting these cultural arguments, they also ignore the humane aspect of the judgment, they just want to protect the institution of marriage even if there are two unhappy people living together for the rest of their life instead of separation. People give reference to religion and culture but cunningly ignores the fact that religious books don’t believe in gender equality, The religious books of different religions also talks about the punishment which should be given to the adulterous spouse. Mainly, the Hindu religious books and scripts only talk about the punishment which should be given to the adulterous wife and says that wife should not take any action against her husband in any situation.
The amount of mental pressure a man or woman feels in an unhealthy marriage is of no importance for the society, the only reason behind an extramarital affair is not just sexual tension between the partners or sexual attraction towards another human being, the society who passes a judgment on almost everything doesn’t bother to look for another cause behind an extramarital affair. There is a high probability that the marriage was against their will or had to comply with the family pressure and after marriage, they’re having an affair, that surely is a ground for divorce, but by no means, it is a criminal offense.
In its verdict, the Supreme court said, “To attach criminality to something happening in the four walls of privacy is wrong, any law which affects individual dignity, equity of women in a civilized society invites the wrath of the Constitution.” After a long struggle, this gender biased law has finally been struck down, but there’s a long way to go for the society to accept it as the society normally follows the Historical School of law which states that 'custom' is considered as the purest form of people consciousness and custom is the primary source of any legislation. Law just conforming to the belief, but in this case, the law didn't surrender before customs and took a stand for gender equality.