‘Adultery law treats woman like husband’s property’

Desai further argued that the FAOW did not want women having a sexual relationship with a man prosecuted but wanted the offence of adultery to be changed into a matrimonial offence and not a criminal offence. “This is an offence against the individual and not against society,” Desai said,adding that the court had the power to strike down a legislation if the policy behind it was contrary to constitutional rights.

“The only state justification for retaining the criminal provision of adultery is to continue the old practice of treating married women as properties of their husbands,without any social or legal agency. This is better defined as doctrine of coverture,wherein the wife’s legal and social personality is subsumed by the husband,” FAOW said in its written submissions to the court.

Justice BH Marlapalle,however,asked,“If this (section 497) is done away with,what happens to the institution of marriage.” He said,“In Indian society,irrespective of religion,marriage is treated with sanctity. A man and woman come together to spend their lives. What happens

to that?”

The court said that in practice,less than one per cent of divorces are filed on grounds of adultery. Most divorces,Justice Marlapalle remarked,are filed on grounds of cruelty or,especially among young couples in Metropolitan cities,citing incompatibility.

The court then asked,“Are you saying that the section (497) needs to be revisited.”

Desai said we need to look at other countries in Europe,the United States and Australia where adultery remains a matrimonial offence but not a crime. The case will be heard on Friday.