After making waves by recently repealing Section 377 of the Penal Code – a law which made sex between men illegal – India’s Supreme Court has abolished Section 497, another colonial-era law which criminalised extramarital sex, in a landmark ruling that has been applauded as a victory for women’s rights.
The 158-year-old adultery law stated that a man could be imprisoned for up to five years for engaging in sexual relations with a married woman without the permission of her husband. However, the sexual act is not punishable if it is performed with the consent of the woman’s husband. Also, the law exempted the wife from punishment, and stated that the wife should not be even treated as an abettor.
“Any provision of law affecting individual dignity and equality of women invites wrath of constitution. It’s time to say that husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong”, announced Chief Justice Misra, reading from the judgment he prepared with Justice A. M. Khanwilkar.
Section 497, which was declared to be in clear violation of the fundamental rights granted in the constitution, allowed a husband to prosecute any man who engaged in sexual relations with his wife. In a backwards turn, the same law prevented a wife from prosecuting either her husband or the woman with whom he was committing adultery.
“You exact fidelity from a woman but not from a man?” asked Justice D. Y. Chandrachud during the four-day long hearing.
Kerala native Joseph Shine was responsible for bringing the petition to the Supreme Court. He challenged the validity of Section 497, owing to its implied gender bias.
The repeal of Section 497 is “a big victory for women’s status and position within marriage and within families”, according to Jayna Kothari, attorney-at-law and Executive Director of the Center for Law and Policy Research in Bangalore.
“The adultery offense was used really as a threat against women by their husbands,” she added, pointing out that it was used primarily in a vindictive manner after marriages had already broken down.
After the momentous decision, the Supreme Court clarified that adultery will still be grounds for divorce, and if an act of adultery leads the aggrieved spouse to take their own life, the adulterous partner could be prosecuted for aiding in a suicide under Section 306 of the Penal Code.
Concerns that repealing the law would encourage infidelity were voiced, but the Supreme Court dismissed the notions, saying, “Each partner to a marriage is equally responsible to keep the sanctity of marriage intact.”
President of the Party’s Women’s Wing and opposition Congress Party MP Sushmita Dev said that the ruling was an “excellent decision”.
“A law that does not give women the right to sue her adulterer husband and can’t be herself sued if she commits adultery is unequal treatment and militates against her status as an individual separate entity.”
In this month alone, India repealed two laws which brought about sexual liberation in India following the repeal of Section 377. The law on sex between men, which previously carried a maximum sentence of life imprisonment, penalized man-on-man sexual intercourse and said it was “against the order of nature”.
The repeal of Section 497 law was seen as a milestone victory for India’s women’s work rights supporters and LGBT activists after years of ferocious struggle.