Chennai: As the Supreme Court of India strikes down Section 497 of the Indian Penal Code and considers the colonial-era law unconstitutional, DC gets to understand mixed sentiment among experts across the city, on the adultery being decriminalized by the apex court.
Although the BJP government is quite in favour of the law, the apex court considers making adultery a criminal offence amounts to intruding into “private realm”.
Senior advocate Sudha Ramalingam asserts, “This particular section needed to be struck down as it was not in consonance with the Constitutional provisions of equality before law. Moreover, wife cannot be seen as chattel of her husband.”
A law tested and found valid some 33 years ago may not go in today’s context. Senior advocate and former additional solicitor general of India P. Wilson contends “due to lapse of time, advancement of culture, knowledge, growth of jurisprudence on interpretation of fundamental rights by the courts, validity of a law can always be revisited by the courts. It is obvious that a women can’t be considered to be her husband’s property. The context in which section 497 is struck down is on well settled legal parameters. Striking down a provision doesn’t mean that Supreme Court has legalised or encouraged such relationships. Anyway, the problem in adultery cases is that since it happens in a closed room between consenting parties in a place known to them, it is virtually impossible to prove them. Thus 99 per cent cases under 497 have ended in acquittal.”
“In my opinion, merely because the Supreme Court has struck down a provision, it doesn’t prevent the legislature from revisiting the issue. The legislature can always legislate fresh laws if it considers that society needs such restrictions, and for infusing a sense of security in families. The issue is not limited to the man or the woman alone but also has repercussions for the entire family. When marriages are solemnised and are a sacred relationship all along, it will be very difficult for the Indian society to accept the dicta of decriminalisation of adultery. Man is a socialized animal. In a country like India we cannot import foreign laws or its culture to interpret laws leading to devastating effect on the families. Our tradition and customs respect marriage bond and we have to see people live happily, fearlessly and harmoniously . If a man or a woman wants to break their marital bond, let the legislature step in and provide a quick process for divorce instead of going other way around. This judgmen
t may send a wrong message in society and law enforcing authorities will find it difficult to deal with these type of issues . Unless a stringent law is enacted to curb extramarital affairs there will be a sense of fear in the families and will affect the social order. The legislature can step in immediately ,make divorce process easier and quicker but simultaneously bring in laws to prevent such extra marital relationships and infuse confidence in the families”, he added.
As for preserving the sanctity of marriage and the difference between illegality and immorality, Sudha believes, ‘when an act takes place between two consenting adults, it cannot be labeled as a criminal offense. But when it happens against the will of the woman, it becomes a crime. Court only interprets law. It doesn’t interpret what is morally right or wrong.’
Senior advocate M.L. Joseph, managing partner, Chennai Law Associates, points to the several bias and the discriminatory nature of the now bygone section. “There were two aspects to it. If a husband was having an adulterous relation, there was no provision for the wife to file a complaint against the husband or the woman he had the affair with. Again, a husband had the right to have a man arrested for having relationship with his wife without his consent, although the wife was also involved in that. There was a lot of gender bias,” he said.
Referring to the recent incident of a Chennai woman committing suicide as she found out her husband was cheating on her and he even went to the extent of justifying his act by saying it was no longer an offence, Joseph affirms, “it can still be a ground for divorce and if after proper investigation, it turns out that circumstances drove the aggrieved spouse to commit suicide, the adulterous life partner can be charged with abetment to suicide. He/she won’t be charged with adultery.”
However, A. Sirajudeen, senior advocate, Supreme Court of India has a different opinion.
For him, purity in private is life is supreme.
Not approving of the western notion of having absolute freedom in sexual relation, he believes sexual relationship outside marriage destroys a family and it applies to both husband and wife.
However, he contends, “enforcing purity in the relationship should not be taken as treating one partner as property of the other. The restriction in Section 497 of Indian Penal Code imposed on the married women alone is irrational. It should be extended to married men also. But, this one sided restriction should not be a ground to say that the whole restriction is not valid.”
With a great sense of pride in the Indian culture, he cites 51A (f) of the Indian Constitution which says every citizen has to value and preserve the rich heritage of our composite culture.
