The section under scrutiny read as:

497. Adultery. – 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

Section 497 of IPC, dealt with the punishment for an offence of adultery. Adultery is an invasion on the right of a husband over his wife as the scope of the section was limited to adultery committed with a married woman. It purely talked about an offence committed by a man against a husband in respect to his wife. Having sexual intercourse with an unmarried girl or a widow or even with an married woman whose husband consents to it or with his connivance were not covered by this section. The offence is only directed to the outsider who violated the sanctity of the matrimonial home when the outsider was a man. The matrimonial home sanctity may be violated by outsider woman but she is not punishable. Wife should have equal right to sue the husband, butthe offence of adultery in IPC permits the husband to prosecute the paramour of his wife without giving any corresponding right to the wife to prosecute the husband when he has extramarital relations. The law was discriminatory for some specific sex which is not acceptable.

It is discriminatory against women because-

It treats married women as being devoid of agency and chattel to their husbands It recognizes husband’s rights over her body above her own

A married woman does not have the same recourse to punish her husband if he commits adultery with an unmarried or widowed woman or a prostitute

The anti-adultery law had also received flak from protesting men who claim that this law is biased against them. But they overlooked the fact that this law does not permit a woman to bring to justice the lover of her husband. It is absurd to contend that a law is favourable to women when the very same law makes it legal for a man to have extramarital relations with a widow, prostitute or with anunmarried woman. The wife’s hands are tied in this instance – she is helpless to bring charges against her husband under this section.

It was held that the section goes against the spirit of the rights to protect the dignity of an individual and her “intimate personal choices”. The “organisation of intimate relations” between “consenting adults” is a matter of complete personal choice.The judgment stated that law must reflect the status of husband and wife as equals in a marriage, entitled to the constitutional guarantees of privacy and dignity. Respect for sexual autonomy is founded on the equality between spouses and partners. After the judgement passed by the apex court adultery is no more a criminal offence and both the spouses have the right to decide for their own life.

The Indian Law has been known to advocate gender discriminatory and patriarchal lines of thought, and it is increasingly clear that such laws have no place in a modern society which needs to develop beyond the colonial mind set. Most countries have decriminalised adultery – now India has taken a step forward and is in line with time by striking the age-old law.

The anti-adultery law also restricted the cognitive decisions of every individual to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations. The mutual decision of two agreeable adults to participate in sexual activity goes to the very core of the privacy jurisprudence and calls for removal of any restrictions on a person’s decision to participate or not participate in a sexual activity.

The so-called anti-adultery law was enacted to maintain the sanctity of institution of marriage. But it needs to be understood that the sanctity of this sacred institution cannot be enforced. Adultery is a breach of marriage contract which does not require the backing of a criminal procedure of law for deterring the adulterer. By treating adultery as a civil offence, it ensures that the married couple have a binding authority to which they can refer their case, as a last resort in a situation where no settlement is possible by own means.