Is Adultery against the Common Good?

Social Issues Gender issues

The question on the constitutional validity of Section 497 of the Indian Penal Code (IPC) is before the Supreme Court.

It contains provisions for the adultery law.
Section 497 of the IPC says that any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery. However, it does not permit women to prosecute an adulterous husband or the woman with whom the husband has indulged in sexual intercourse. The adulterous woman’s husband, thus, alone has the right to prosecute the “adulterer.”
The apex court has asked the central government a normative question: What is the collective good in making adultery a punishable offence?
The government has given a justification that the Section 497 “supports, safeguards and protects the institution of marriage and striking it down will be detrimental to the “intrinsic Indian ethos which give paramount importance to the institution and sanctity of marriage”.

By arguing before the Court that the section upholds the sanctity of marriage and, the state is assuming that it knows what is good for everyone.
It is objectionable of the state to decide what is good for women on their behalf.
It is crystal clear then that the law is definitely not protective of women as is being made out to be by those who accuse it of favouring women unjustly.
What needs to be questioned is the state’s notion of the collective good and whether it involves protecting patriarchal notions about a woman’s sexuality.
As the debate over Section 497 in general and the content of the hearings in the apex court show, the adultery law in India is enmeshed with issues of privacy, gender discrimination, assumptions of morality, and the motivated stakes that both state and society have in the institution of marriage itself.
Section 497 also supports the belief that while a woman is expected to be faithful in the marriage, the husband can philander so long as it is not with the “wife of another man.” Similarly, her having sex with another man is not adultery if her husband has given consent to the act.
It is assumed that he has a right to her body and to determine who shall use it sexually.
The crux of the issue is thus whether the dynamics within an intimate relationship like marriage and sexual relations between two consenting adults is a matter for legal bickering.