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Recently, there has been much furore over the need to decriminalise adultery with regard to a petition challenging the constitutionality of the section 497 of IPC. The Gujarat HC had denounced extra marital affairs for their aggravating effect on the spouse who is affected by it, in a petition filed by a husband to quash the FIR filed by his wife under the Domestic violence act.
Holding that an extramarital affair disrupts the social world of the wife and completely the destroys the trust and sanctity over which the marriage is based, the Court refused to quash the FIR. The Court also argued that an affair causes unbearable pain and trauma and also renders unnecessary harm to the persons who never did any wrong including the children.
Although the Court was right in its view, it showed regressive mindset in stating that the marriage prospects of the child of the couple would be harmed due to the divorce. Although this does happen, it is not correct to base a girl child’s marriage on the divorce of her parents.
The provision on adultery in the Indian law is outdated and only provides for the prosecution of the male partner in the crime. The woman is merely seen as an object within the entire scheme with no will of her own to even be prosecuted for what the law deems as wrong.
Adultery is not a crime in the US and many European countries. The 42nd Law Commission report suggested making the provision gender neutral and decreasing the punishment from 5 years to 2 years. Freedom of choice and autonomy and liberty being an essential part of the right to privacy, adultery should be seen in the light of exercise of one’s personal freedom. Marriage is a civil contract and should only attract civil consequences for breach of conditions.
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