‘Adultery law treats woman like husband’s property’

Intervening in a petition challenging the constitutional validity of Section 497 (adultery) of the Indian Penal Code, the Forum Against Oppression of Women (FAOW) — a women's rights NGO—on Thursday submitted to the Bombay High Court that the penal section was in fact, derogatory to women.

Arguing on behalf of the NGO, lawyer Mihir Desai told the court that the section deals with adultery like trespass on property. "It is like the husband owns the wife like he owns property and a man having a relationship with his wife is treated like a man trespassing his property," Desai said. "Section 497 does not recognise gender equality and is therefore violative of Article 21 (Right to Equality) under the Constitution," he said.

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

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