SC verdict on adultery law today: For feminists, a reformed Sec 497 could be a double-edged sword

New Delhi, Sept 27: Indian democracy is in the middle of a churning. Though politically, this country has seen a fairly deepened democracy, socially, the goal is yet far. Be it the equal rights of the people from the LGBT community or the rights of the Muslim women not to be at the receiving end of the Triple Talaq or gender-specific responsibility in adultery, there are several social issues that have not been addressed all these years and it is only now that the political and legal authorities of the State have decided to arrive at decisions on them.

One such issue is adultery. On Thursday, the Supreme Court will deliver a verdict on the validity of Section 497 of the Indian Penal Code (IPC) which penalises married men for adultery if they have a sexual relationship with a married woman without the consent or connivance of her husband. Adultery is a criminal offence in India and its violation can lead to penal consequences of imprisonment for a term extending up to five years or fine, or both.

In January this year, the apex court referred to a Constitution bench a Public Interest Litigation which challenged the validity of Section 497. It asked why a married woman, who is equally liable for indulging in adultery with another man, is not punishable along with the man. Earlier in December 2017, the court had issued a notice to the Centre and sought a reply within four weeks. The Centre has come up with an affidavit defending the 150-year-old law saying it protects the institution of marriage and striking it down would be "detrimental to the intrinsic Indian ethos".

Section 497 reads thus: "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."

This law has some strange connotations. On the face of it, it only penalises a man. But in depth, it denies the woman her basic right to prosecute her adulterous husband or a woman who has indulged in sexual intercourse with the husband.

Of the husband; for the husband: What's the woman's say?

This law sees women as a "mere possession" for the legal implications are associated with the words "wife of another man" and "without the consent of connivance of husband". Doesn't the woman have any voice of herself in this? And is adultery an word only applicable to a married woman? Sexual relations with a widow, sex worker or an unmarried woman would not fit under adultery as per this section as was confirmed by the high court in the 1990s.

For those who only see this as a biased law against men, it is no less biased against women either. And it is also difficult to understand how such a section helps in maintaining the sanctity of the institution of marriage. Who is exactly in charge of saving the grace for marriage? And also, does marriage as an institution continue to be same in today's society?

The way out of this legal soup is not easy either. If the womenfolk are given the right to take on their adulterous husband, the feminists will be happy but if they also start facing the law if it is made gender-neutral then there could be more complications (other threats that emanate from gender inequality could rise) than those visible to the naked eyes. For the women, a reform in adultery law could be a double-edged sword and the political and legal authorities need to progress with a lot of caution.

It will be quiet a task to turn this black-and-white law into something grey, keeping pace with the transitions our social life are undergoing. With the growing clamour for more democratisation of the society and universalization of basic constitutional rights, an issue like gender becomes very sensitive to address. In the case of adultery, the issue is more delicate for even a slight misjudgement could lead to bigger questions of human rights violation.