The ‘Legality’ and ‘Morality’ of Adultery
         Date: 09-Oct-2018
Concepts and practices like adultery should not be confined to the limits of law alone. It must be debated in society about the same fundamental principles which constitute ‘morality.’
 Sharadhi Raj
 Adultery is no longer a crime. Supreme Court strikes down Section 497
‘We are women. We are different from men. We need our rightful place and our rights. We have to be given special status and rights in the Constitution.’ Alright, let us agree on all these demands. But here’s something we need to take cognisance of. Today there are innumerable laws made exclusively for the benefit of women. So, who are the true beneficiaries of the rights granted by these laws? Where and how are they being used? These questions naturally arise.
Surprisingly, these laws are not being used by women who need them. It is but ironic that these laws are often misused. Among such laws, misuse of Section 498A of the IPC is most noticeable.
Leaving this aside, the Supreme Court has delivered another important verdict. Adultery or Illicit relationships are no longer a crime! The SC has struck down IPC Section 497 and declared it as unconstitutional. The essence of the verdict is that a man is not the owner of his wife. Though this verdict is seemingly pro-women, the truth is different. There is a reason for that. According to Section 497, if any married man has a consensual sexual relationship with another married woman, he was liable to be punished with imprisonment of 5 years with or without a fine. But the woman who was in this relationship with the man was not bound to be punished.
Gender Perspective of Law
The woman was fully exempted from any punishment. It was because it was assumed for ages that the man was the seducer and the woman to be the victim. So even if a woman was found having an illicit relationship with a married man, the woman was not to be punished under any law. So where was gender equality here? In an unethical relationship which is consummated by the consensus of both the adults, only one is punished! The other consenting partner being fully aware of the illicit relationship is deemed innocent and not liable to be punished. Anyone can say that there is no equality here. If sexual intercourse happens without the consent of the woman, then it is rape. But if the same happens with her consent, it was a crime. What kind of law was this? Was this not a violation of article 14 and 15 of the Constitution? Why did our Constitution which says that everyone is equal before the law, stumble here? There is yet another fact to be considered in the same section. According to this section, a husband has all rights to question the extramarital affair of his wife legally. But the one to be punished would be the wife's male partner alone. However, the law did not give the juridical authority to a wife to legally question the husband's extramarital affair. A wife can only file for divorce citing her husband's extramarital affair. Even today, an illegal relationship is deemed as a 'Civil Wrong'. Citing this, the husband or wife can file for divorce. When a husband has the right to question his wife's immoral relationship and the wife has no similar right, is it not a violation of Article 14?
This judgment seems to be correct when viewed from the legal perspective of equality. When considered regarding the institution of marriage, this judgment means something else altogether  
It can be seen in the case of Sowmithri Vishnu vs Union of India. Sowmithri filed a petition alleging that Article 497 violates Article 14 and 15 (1) of the Constitution. Article 14 gives the right to equality and Article 15 (1) states that there should be no discrimination based on race, religion, language, sex and birthplace. But the Supreme Court had then ruled that Section 497 does not violate these two statutes because in such cases the male is considered a seducer and the woman is considered the victim. Hence the woman is not liable to be punished. It is also the reason as to why a woman does not have the legal right to question. A similar judgment was delivered in the case of Revathi vs Union of India.
It only reiterates the fact that man is always considered guilty while a woman is not considered for punishment even if guilty. The present judgement has put an end to this long-held stereotyped view. It is not prudent to blame men forever, and a woman is not always right. This basic belief is about to be turned upside down.
Equality and Societal Fabrics
This judgment seems to be correct when viewed from the legal perspective of equality. When viewed regarding the institution of marriage, this judgment means something else altogether. Despite being a criminal offence, immoral relationships have existed in the past and continue to exist. Just because it was a criminal offence, it does not mean that no one committed it. Crimes continue to be committed although they are illegal. For example, prostitution is a crime. But does that mean that we do not have ‘Red-Light’ areas? It is obvious that crimes were being committed, but no one came forward and complained.
Many believe that this judgement will push society to a perilous situation. Let’s consider this. If a case of an illicit relationship is exposed in villages, the woman will be beaten up by her husband in public. The whole village erupts in anger. We have seen cases where the person accused of an illicit relationship is stripped naked, beaten in public and paraded across the town. There have been numerous honour killings. So let’s ask ourselves as to what is the common man afraid of? Is it fear of law or society?
(The writer is a journalist and law student)