Editorial Analysis || Indian adultery law is crudely anti-woman

Mains Paper 1: Society | Role of women and women’s organization

Prelims level: Adultery law

Mains level:  Effects of adultery law in Indian society.



• Individual members of a Supreme Court bench hearing a challenge to the validity of Section 497 of the Indian Penal Code on adultery have all spoken against the law as it stands, indicating that this could well be struck down. And that would be the right thing to do.

• Adultery amounts to the breach of trust between a married couple and should thus qualify as a strong ground for divorce, but should not carry other penalties such as imprisonment.

• The law as it stands in India is a colonial creation, formulated 158 years ago.

• The law has moved on in England, where adultery is no longer penalised except as a ground to claim irretrievable breakdown of a marriage.

• The alimony that a divorced wife is entitled to be not diminished on account of her adulterous liaison in England and much of Europe, although that is not the case in the US, where 21 of 50 states still deem it a crime (it is a misdemeanour in New York).

Why adultery law is about anti women?

• The Indian law on adultery is an unapologetic articulation of patriarchy. A man who enters into a sexual relationship with a married woman without the knowledge or connivance of her husband is guilty of adultery and can be punished with a jail term of up to five years. If a married man has an affair with an unmarried woman, no adultery subsists.

• Adultery is, in Indian law, violation of one man’s marital home by another, in which women are seen as passive objects wholly devoid of agency.

• Section 497 specifically says that the woman in an adulterous relationship will not be considered an abettor. This does women no favour. Modern India cannot afford to have such gender bias in its laws.

What are the recommendations make it strong and productive for women in our society?

• Removing such bias would mean two things. Adultery must be understood as the violation of the commitment to sexual exclusivity that marriage entails, not as the violation of a man’s marital home.

• Further, women should qualify as culpable agents, not passive objects of male will, in the offence of adultery. Marriage should sustain on the strength of mutual trust, respect and love, not out of fear of a jail term.

• Modernising the law on adultery is essential to live up to the commitment to equality offered by the Constitution.

Link – https://tt93a.app.goo.gl/LSjLjVT4c6qYKFWj7