Adultery not a crime:

Breaking legislations that perpetuate gender stereotypes

Some provisions in law have existed for so long that the public and judiciary stop questioning
its validity and legality. Supreme Court recently uprooted this deep set notion by delivering
various unprecedented judgments. One of them which came to the limelight of the public was
the striking down of Section 497 of the Indian Penal Code which dealt with provision of
Adultery. The archaic law which dated back to 1860 penalized adultery and prescribed a
criminal punishment for the same. To understand the decision let us look at the background
of the case.


It is important to know the provision as it existed before and the glitches and inconsistencies
it incorporated. The section punished any person who without the consent of the husband of a
woman has sexual intercourse not amounting to the offence of rape. The maximum
punishment prescribed extended to five years in jail with fine.
One of the most major problems with the Adultery law was that the issues that arose were not
harmonious to the objective behind the section and was in fact in contravention to the same
i.e. the section eroded the sanctity of marriage instead of maintaining it. Firstly, the provision
was inapplicable to married men having an affair with non-married women. Secondly, the
element of consent was an issue when it was non-existent but when a man consents to the
same act the provision becomes moral. Thirdly, the section clearly absolved the woman of
any guilt or punishment by not including her as an abettor in the act. And finally, there was
an obvious ingredient of gender bias which was mentioned by all the judges of the bench.
Additionally, the law lead to a lot of frivolous complaints from men who suspected their
wives of made up affairs and lead to a loss of reputation on both sides.


A bench of five judges sat down to deliberate and declare the judgment and all of them held
the same opinion that the colonial law must be struck down. Chief Justice Dipak Misra
sternly established that “Husband is not the master of wife.” and that ancient notions on
which gender stereotypes were developed don’t hold true anymore.
The matter extended further than gender equality. Another subject involved was the state’s
interference with respect to personal relationships and the sexual autonomy of citizens- To
what magnitude can the state regulate consenting adults’ relationships. Of course, the element
of morality and sanctity of the institution hangs in the air and though inter-marital affairs
should be disapproved of and discouraged, they do not necessarily become a crime.


All in all the absence of the criminal element prevents extreme ridiculing of the adult
involved in a consensual relationship and does not give the woman an easy exit. But also, if
you think that the striking down of the law would leave you with no remedy against a
cheating spouse then you’re wrong. Adultery still stands to be a main ground for divorce and
affords a way out if you’re searching for an out of an unstable marriage.