Patriarchy is a system where the male has a dominant role to play and women do not have their “individual autonomy”. The most deplorable thing is that women are considered as the ‘property’ and ‘belonging’ of the males. Women are known as someone’s daughter, someone’s sister, someone’s wife and someone’s mother. She is not ‘she’. She is not respected and pulled back by various means whenever she wants to revolt against this very system. And the most heartening fact is that many of the women accept consciously as well as unconsciously this very system. Almost every critical issues related to women is interlinked with patriarchy and if you really notice that you will find out that almost all of the serious legislation related to women have come through the Supreme Court. The executive has hardly taken actions and legislated on its own related on women issues. We can count this on our fingers- Shah Bano Judgement, Vishakha Judgement, Judgement on sterilization of women, Nirbhaya Judgement, Shayra Bano Judgement, Lata Singh Judgement and the list is long where almost all critical concerns of women are addressed by various judgments with the help of civil society or individual fight. It is happening because as Radical Feminists rightly said,“State is a patriarchal state” and ” State is for men and by men”. On the face of it, a constitutional bench of Supreme Court in his recent PIL filed by Joseph Shine questioned the constitutionality of the Section 497 of the IPC and Section 198 of Criminal Procedure Code which violates Article 14, 15 and 21 of the Constitution of India. In this hearing, the Supreme Court has said that ‘adultery law’ violates the dignity of women’.
Adultery basically refers to extra-marital voluntary sexual intercourse. It is a criminal offense in India under Section 497 of Indian Penal Code(IPC). It is also one of the grounds under which divorce can be granted. This Section 497 like others archaic acts is the colonial hangover which is totally paternalistic, parochial, outdated, arbitrary, anachronistic and a replica of Victorian mindset. The provisions of Section 497 are given below:
“It says that a man could be punished up to five years in jail if he has ‘sexual intercourse’ with another man’s wife. It makes it clear that the wife will not be considered as an abettor and will not be punished”.
The most inhuman part of the act says that” it is not a criminal offense when a man has the sexual intercourse with the wife with the consent and connivance of the husband of the woman”.
“It does not criminalize adultery if the husband has consensual sex with an unmarried women, whereas a married women having similar relationship with a bachelor may find her paramour being punished for the offense.”
The provisions of the Section 497 IPC treats married women as the “personal possession” of the husband which is inhuman, against the dignity of women and denying the sexual autonomy which is recognized under the “Right to privacy”judgment. It is like women are some objects(Car etc), when the husband wants, someone else can use it. I also agree with the argument made by Sai Deepak, Advocate of Supreme Court that this provision clearly helps in the objectification of women. The most absurd thing is that under section 198 of CrPC, only “aggrieved husband” can complain about the adultery and not the wife. It is, in fact, the clear-cut reflection of the system of patriarchy which is written in the law.
The most profound defense for keeping this provision is made in terms of “protecting the institution of marriage”. Whenever any issues related with women for instance marital rape, domestic violence etc come into the limelight, this is the last argument put forward by those who are part of this patriarchal system. I just want to ask one question- if the institution of marriage is so strong, why there are discrimination, subjugation, and violence against women in marriage. This provision needs to be scrapped or modified where women should also be punished and they should also be given the right to complain about the husband, by the Supreme court to restore the dignity and autonomy of women. In fact, 42nd Law Commission of India report, 1971 and Malimath Committee on Criminal law Reforms, 2003 suggested that this section should be amended to make it gender neutral. Not only this, National Commission of Women(NCW) in 2006 put forward the view that this section needs to be decriminalized. However, recently NCW said that women cannot be punished for adultery but they should be given right under section 198(2) so that they can also prosecute their husband for his promiscuity. It needs to be emphasized here that the Supreme Court Bench also said that decriminalizing the section 497 does not give any license to people to involve in licentious behavior.
It is a cliche that the law should reflect the changing times when the Supreme Court has accepted the “right to privacy” and considered to decriminalize the homosexuality under section 377, Indian state should come forward to deal with structural flaws present in the institution of marriage to make it more gender neutral and equitable. Indian State must not protect the system of patriarchy and behave like a “patriarchal state” as women are one of the most important constituency of the country who not only helps but also contributes towards nation building. Many European and South Asian countries like Bhutan, Srilanka, China, South Korea has decriminalized the adultery. In fact, UNHRC has recommended all the governments to do away adultery as a criminal offense saying that it is a violation of human rights.
Policy Wise 