It is most astonishing to see that the colonial era law of adultery made in Britishers era is still flourishing with no real change being made in it. Many feel that women should also be punished as now she too stands on par with women, gets educated in best of institutions and gets the best of job and yet has no qualms at all to indulge in adultery. They point out that in Jammu and Kashmir also both men and women are equally punishable then why not the same be applied all over India?
To say the least, this is ridiculous argument and in the era of globalization we too must flow with the wind and appreciate that if something wrong is happening in Jammu and Kashmir then by the same token that cannot be extended to all other states as well! Two wrongs cannot make a right and where it is written that if once a wrong is done then it can’t be corrected? The adultery law in Jammu and Kashmir also must be amended to meet the present circumstances!
It would be pertinent to mention here that many countries have decriminalized adultery and even England which ruled over us and made adultery punishable in India have also decriminalized adultery a long time back. Why can’t it then be now decriminalized in India also? It can certainly be decriminalized and it must be done forthwith!
How can it be ignored conveniently that in 2012, a United Nations Working Group on laws that discriminate against women wanted countries that treat adultery as a crime, to repeal such laws? Is it not the duty of each of the countries who are members of UN which includes India who is a founder member to abide by it? Why can’t such an archaic and highly discriminatory law which most unfairly and unabashedly discriminates between men and women be promptly repealed?
There can be no gainsaying the indisputable fact that a reconsideration of the law on adultery is not just long overdue but also it being decriminalized is most crucial! This law of adultery which is right now before the Supreme Court has to pronounce now on the all important question which is an open question as to whether this Section 497 of the Indian Penal Code really discriminates against men just on the basis of gender and gives not just an unconstitutional exemption to women but also abets her to indulge in it freely as she is not punishable at all under any circumstances! Is this really fair?
To put things in perspective, while agreeing to issue notice to the government, the Bench has observed that the provision is archaic. It has also went further to observe that in a case of adultery, one person is liable for the offence but the other is absolved, and that the concept of gender neutrality, on which criminal law normally proceeds, is absent. The Apex Court has also noted that once the consent or connivance of the husband is established, there is no offence of adultery at all.
Going forward, the Apex Court deems it as subordination of a woman and something that “creates a dent on the independent identity of a woman”. It is so shocking to see that a woman under the present law of the penal code is treated as a subordinate woman who cannot complaint of her husband indulging in adultery and also who can never be considered fit of giving consent! Why can a women be punished for theft, cheating etc but not for adultery? Why only the husband alone has the unfettered to prosecute an outsider for adultery?
Most importantly, why should the offence of adultery be punished as a crime at all? Why can’t two adults who are consenting and willing be allowed to do what they want to do? Why should they be jailed for it?
Why can’t India also like its former colonial ruler – UK decriminalize adultery and allow two consenting adults to do what they want to do? Why can’t India follow so many other countries who have all decriminalized adultery as they consider it to be no offence at all? Why can’t it be treated as their private affair?
Why burden courts with such useless case which is already overburdened with a huge backlog of pending cases thus consuming the precious time of the courts which can be utilised for pursuing other serious crimes like rape, gang rape, murder etc? Why do we disregard the irrefutable truth that it is one thing for adultery to be treated as a ground for divorce which is a civil proceeding and quite another for it to be made a basis for incarceration which is the most foolish thing that can be ever done which alone explains that why even UK has decriminalized it? When UK can do it then why can’t we do it?
When so many other countries can do it then why can’t we too do similarly? Are we waiting to be the last country in the world to decriminalize adultery? We must introspect seriously!
In a nutshell, criminalizing adultery cannot be justified under any circumstances. Every adult person must have the right to live a life of his/her choice! Why criminalize it? There can be no ground to justify it!
Why punish those who are having sex with consent? Why can’t we come out of our medieval mindset? Why treat woman as “inferior person” who just does not understand anything when she decides to have sex with any men of her choice?
Why put restrictions on women to have sex with any men of her choice? Why can’t it be left to the men and women to do what they want to do in their personal life as long as the sex is not rape? Why punish sex with consent?
On a parting note, let me say this very clearly and categorically that law makers must step in and immediately decriminalize adultery as we see in so many other countries! We are living in a modern and progressive world. Why then should we follow British era rules and laws notwithstanding the irrefutable fact that even Britishers have decriminalized adultery in their own country?
Why then can’t we also decriminalize it accordingly to meet the present circumstances? It is never too late! We must all understand this fundamental truth fully well! Most of all, Centre must act suitably and waste no time further in amending the law of adultery to meet the present circumstances by decriminalizing it accordingly!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.