Image Source - Hindustan Times
“ADULTERY MIGHT NOT BE THE CAUSE OF AN UNHAPPY MARRIAGE, BUT IT CAN BE A RESULT OF ONE”
This is what the Apex Court had to say on 27th September, 2018, while striking down the 158- year-old archaic provision of the Indian Penal Code that made adultery a criminal offence  According to the erstwhile S.497 of IPC, Adultery was a criminal offence, punishable with an imprisonment of 5 years or fine or both. Prima facie, it seems a law which is fair enough. But upon a careful study on the wordings of the said provision, the paradox becomes evident. The wordings of S.497 were as under,
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
In layman’s terms, any man indulging in an affair with a married woman without the consent of her husband commits a punishable offence i.e. proceedings under this section can be carried out only if the husband objects to such a relationship between his wife and another man. Also, the woman entering in such an adulterous intercourse was exempted from punishment of any kind.
The entire idea of punishment for adultery can be found in Manu smriti, where Manu observes that, “If men persist in seeking intimate contact with other people’s wives, the king should brand them with such punishments that inspire terror and banish them from the kingdom.” The idea behind this being, that men necessarily are the perpetrators of such illicit activities and women are their victims.
There have been many challenges to this evidently archaic law previously as well. In 1954, the constitutional validity of S.497 was challenged in Yusuf Abdul Aziz v State of Bombay  wherein the constitutional validity of S.497 of IPC was challenged. The exemption of women from the punishments was claimed to be violative of the Article 14 of the Constitution of India, going against the principle of Equality; however, the plea was rejected. Then again in1985, in Sowmithri Vishnu v Union of India , the Supreme Court observed that stability in marriage is an ideal not to be scorned at. Upholding the constitutionality of the said section then, the court observed that the consent of wife in such situations is immaterial and that men are always the seducers. The same view was reiterated in 1988, wherein a wife objected to her husband’s adulterous relationship with another woman, but was labelled as a crusade of one woman against another  . However, on a brighter side there were Law Commission Reports in 1971 and 2003, which strongly advocated that this law be made gender neutral by means of a legislative amendment. But it was only in 2017, that a writ petition was filed before the Apex Court challenging the Constitutional validity of S. 497 of IPC (read with S.198 of CrPC) on the grounds of discrimination and arbitrariness of the provisions. Almost