image description

The judgment of the Apex Court which decriminalizes the act of adultery has created a huge confusion for a common man. A lay man's interpretation regarding the historic judgment is pole apart from how it is judicially interpreted.  Law does not and cannot authorize extramarital relations.

It should be taken into consideration that there is a difference between morality and legality and an activity which is morally wrong need not always be wrong in legal terms.

Adultery is a gender-neutral term which can be committed by an individual irrespective of their gender. Then why should only one person be held liable for the act? But section 497, earlier only punished a man for this act, on the basis that he was the one who has predated or seduced and the liability of the woman is only secondary that is that of an abettor. It becomes very difficult to prove adultery as a criminal activity because it has to be proved reasonable doubt that sexual intercourse has actually happened.

The Apex Court in September 2018, struck down section 497 of the Indian Penal Code by declaring adultery to be unconstitutional, arbitrary in nature and thus it infringed the basic principles of gender equality enshrined under Articles 14 and 15(3). The prior provision created ambiguity by putting a question mark on the sanctity of marriage, as it permitted the husband to consent for his wife's illicit relation and on this assumption the liability was entirely borne by a male.

However, the Apex Court stated that "The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure." Section 497 was anachronistic or outmoded in nature.

Secondly, any woman whose husband has committed an adulterous activity had no remedy to prosecute him unless he marries the other woman, here also she could only make the husband liable for bigamy and not for adultery.

In all aspects, the law does not permit adultery, it is still a major ground to acquire a divorce and it may also amount to mental cruelty. The decriminalization of adultery is mainly based on the concept that any private act between consenting adults cannot merit State intervention which is obligatory in cases where consent is absent. The mere fact that the Society disregards marital infidelity or has hatred towards, does not put in the category of crimes. Thus, the couples might overlook the moral and ethical set of rules laid down by society for the sake of their relationship and the mere fear of being punished cannot save marriages. Etc.

Thus, the Apex Court has only decriminalized adultery, as it was only a mode for harassment. The main motive of the Apex Court was to state that denial of sexual autonomy to women was unconstitutional and arbitrary in nature and thus, it was unacceptable.