Adultery is a criminal offense in India and is punishable with imprisonment up to five years, a fine or both. A bench of the Supreme Court is re-examining the constitutionality of the section that incorporates the provisions for the adultery law.

Section 497 of the Indian penal Code, which deals with adultery, states that the criminal offense is committed only when a man has sexual intercourse with another man’s wife. Only the adulterer (the man) can be prosecuted for it and not the adulteress (the woman). Additionally, the man can only be prosecuted if the husband of the woman lodges an official complaint.

In December 2017, a man called Joseph Shine filed a petition before the Supreme Court questioning the constitutionality of Section 497. He argued that the law is discriminating between genders, and there is no basis for not holding the woman criminally liable when she willingly participated in the act.

Section 497 reads as: “497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

However, there is more to the law than just being discriminatory between the genders.

The words here are ‘wife of another man’ and ‘without the consent or connivance of husband’, which reduces women to mere ‘possessions’. It’s reflecting that the offender has invaded the husband’s marital property and is liable to be punished for unlawful possession.

 As confirmed by the Delhi High Court in a previous judgement, only sexual intercourse with a married woman constitutes the crime. Sex worker, widow or unmarried women are not a part of this, following which the husbands can indulge in extramarital relationships legally. Furthermore, there is no right for the women to sue the adulterous husband.

Now, the Supreme Court has gone beyond ascertaining whether it should be made a gender-neutral offense and asked, why should adultery be a crime at all? Can a man be sent to jail because he had consensual sex with the wife of another man?

Adultery can be a traumatic experience for the spouses as well as the children but does criminalising it ensure its stability? And the fact that in  21st century criminalising infidelity comes across as anachronistic, intrusive and misdirected!