Supreme Court’s recent decision holding section 497 of IPC to be unconstitutional and striking down penal provisions for adultery has given rise to a new debate
JAY JOSHI
In a recent judgement, the Supreme Court scrapped section 497 of the Indian Penal Code, declaring that adultery is no longer a crime. The Court held the view that the said section treated a woman as a man’s commodity. If one partner among the couple is cheating, the partners may part ways, but to see this as a criminal offense is taking it too far. The judgement was delivered by a panel of five judges led by Chief Justice Deepak Mishra. Other judges in the panel were M Khanvilkar, RF Nariman, DY Chandrachud, and Indu Malhotra.
The new judgement has given rise to a debate in the society as well as legal fraternity. Justice DY Chandrachud has observed that marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.
What meaning and value does the institution of marriage then hold, is one of the major questions being raised after the judgement.
Drawing upon this point, advocate Shubhalakshmi Naik states that when you enter a marriage, you make a commitment, and the new judgement can affect that. “We need to see how it impacts the youth” says the advocate “Many of today’s youth do not take commitment seriously, and this judgement could lead to chaos within the society.”
Ponda-based lawyer advocate Shailesh Kulkarni has a different view. “Section 497 was flawed in that it empowered only men. Wife of a man who had committed adultery could not take any action. The Supreme Court was right in its judgment.” says Kulkarni. “That said, the judgement might have led many to believe that adultery is now legal, but there is a difference between how the Court interprets law, and how ordinary citizens are interpreting it at the moment.”
Advocate Soumitra Kundaikar from Panaji also agrees. “The core thought here is that marriage is a private affair, and how a couple deals with adultery is their private matter. Adultery still stands as a ground of divorce. Secondary, morality too is a private affair, and adultery involves moral factors, but not legal factors,” says the young lawyer, and adds, “Adultery isn’t rape”.
“I respect the decision of Supreme Court” says advocate Harsha Naik “but I feel we need to see who will ultimately suffer loss because of this judgement. How does this affect a woman whose husband is committing adultery? I believe that the people should have been taken into confidence in this matter -especially women.”
