The government’s view is that scrapping Article 497 will take away the meaning of marriage.

Whether the law on “adultery” – the consensual sexual relationship between a man and a married woman, dealt with in Section 497 IPC – remains, or whether the Supreme Court will let Parliament handle it, is not clear.

But a five-judge Supreme Court bench led by Chief Justice Dipak Misra said Thursday it found the 158-year old law violative of the dignity of women though it gave the impression of shielding them.

A petitioner in a PIL had argued that the existing law was discriminatory as it punishes only the man in an adulterous relationship.
Under Section 497, the crime of adultery is committed unless the woman engages in sexual relations with the “consent” or “connivance” of her husband. The judges therefore held that the existing law treated women as “chattel”.

Justice D.Y. Chandrachud said since it took years to get a divorce decree, should a wife in an estranged marriage be required to obtain her husband’s consent before seeking to find love with another man? This argument is difficult. It implies the man in question, in case he is married, is also in the process of seeking to end his own marriage.

The government’s view is that scrapping Article 497 will take away the meaning of marriage. With this are linked notions pertaining to the family, which in turn is linked to property matters and to public order.

The court has partly dealt with this by suggesting adultery can remain a ground for divorce. Perhaps it can just ask the government to amend the section to drop the wording of the current law that make women their husband’s “chattel”.

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