Marriage is considered to be a sacred institution. To uphold its sanctity and legality; to grant rights to the couple in the union of marriage, certain laws have been framed. With changing times and society, laws too need to be amended reflect the present day society.
In this day and age where gender justice is a big talking point, there are many laws on the statute book which are gender discriminatory. One among them is IPC 497. This is a law to punish people for having adulterous relationships. Adultery according to the Constitution is defined as —
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.
The blatant discrimination in this law is quite evident. The culpability for having an extramarital affair lies solely with the man. Getting into its nitty-gritty’s one can find that the law is not applicable if the man has extramarital relationships with unmarried women. This law as such portrays men as people who have continual sexual urges and women as feeble minded people without any needs of their own.
The basic premise of this law rests on the grounds of an extramarital affair being found by the spouse of the female involved in the relationship. The rights of the wife of a man involved in such a relationship are completely violated.
In the case of Smt. Sowmithri Vishnu vs Union Of India & Anr on 27 May, 1985 the honorable Supreme Court has made the following comment —
It is urged that the section may, at first blush, appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ‘Romantic Paternalism’, which stems from the assumption that women, like chattels, are the property of men.
It is glaringly obvious that the law is discriminatory to women. On the flip side the same law is discriminatory to men as well. The way the law has been worded represents a time gone by and reflects a feudal mindset. This law I believe has outlived its time.
In present day society with “Right to Privacy” being a fundamental right, the government has no business intruding in the person private place of consenting adults. If the existence of such a relationship is found or revealed the couples involved have the legal recourse of filing for divorce. Or maybe reconcile.
The marriages of Tiger Woods and Wayne Rooney are examples of marriages which went the former and latter way after revelations of them having extramarital affairs surfaced. So why is there a need for such a law to interfere with the privacy of individuals ?
Talking of changing times we can see winds of change on the LGBTQ issues. With the judgement on “Right to Privacy” earlier this year Sec 377 might be repealed. Along with it the Transgender Persons (Rights of Protection) Bill, 2016 has been introduced in the lower house of the Parliament. If and when they do happen the existing law may be contradiction with the new legislation. This only adds to the amount of people deprived of justice under the law.
How is it that such a law that violates the “Right to Equality” still exists on statute books? Secondly it is also an obstruction to gender justice. At present there is a debate about males and females getting equal opportunities in all fields. I shake hands on that. To achieve it we need to make laws gender just if not gender neutral. And some need to be taken off statute books like the ‘Adultery Law’ to ensure a more equal society.