In paragraph 42, the apex court clarifies that “it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. (Representational Images)

If isolated incidents reported and social media memes and posts are anything to go by, the Supreme Court's recent verdict in Joseph Shine Vs Union of India, decriminalising adultery, has been interpreted as a sort of judicial no objection certificate for immorality. These misinformed sections have clearly not read the judgment in its entirety. In paragraph 42, the apex court clarifies that “it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty.”

Philanderers must remember that adultery is still a ground for divorce. There are financial implications in such proceedings. And if it is proved that an extra-marital relationship had caused mental and physical cruelty leading to suicide, the spouse who abetted that extreme step can be prosecuted under Section 306 of the Indian Penal Code (IPC). This carries a 10-year jail term, which is double that of adultery.

The real mischief in Section 497 of the IPC was in the form of gender bias because it penalised sexual intercourse with a married woman “without the connivance” of her husband. The apex court rightly referred to the “paternalistic notion of a woman being likened to chattel. It treats her as the property of man and totally subservient to the will of the master.” In classic prose, the court held that “any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, a few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written.”

Another peculiar part of the penal provision was that it allowed only the husband to file a complaint against another man. Before this judgment, the National Commission for Women had earlier recommended an amendment to Section 198 of the Code of Criminal Procedure (CrPc) to allow women to prosecute unfaithful husbands. The court termed Section 497 “a tripartite labyrinth”, as “the husband is treated as an aggrieved person and the wife is ignored as a victim.” Could the Supreme Court have struck down these unfair parts of the provision instead of the whole section itself?

Interestingly, the Supreme Court in its landmark adultery judgment took into consideration an argument that the offence of robbery is punishable with imprisonment for ten years under Section 392 IPC but the offence of adultery carried a 5 year sentence. The court conceded that “breaking a matrimonial home is no less serious a crime than breaking open a house”, but added that “such arguments go to the policy of the law, not to its constitutionality.”

Many years ago, the Supreme Court in Seema Vs Ashwani Kumar had made the registration of marriages compulsory “in the interest of society.” Here’s my question: Can a welfare state, that makes registration of marriages mandatory, decriminalise an offence that undermines this legally recognised institution? That many other countries have decriminalised adultery is really not a tenable argument. Many other countries have also decriminalised defamation and abolished capital punishment. India has not.

Are we stretching the concept of ‘consenting adults’ a bit too much and ignoring other affected parties in the process? Adultery is not a victim-less crime. Does it not trample upon the sanctity of marriage? Should marital fidelity remain only in words and vows? Would it not shatter to smithereens the ‘family’ as a unit of society? Would it not wreak havoc in the minds of the spouses of the adulteror or adulteress? What about the impact on the children, especially if they are at a tender or impressionable age? What happens to their future in the event of separation of their parents for this reason? What about the possibility of parental alienation during or after a custody battle?

True, there are practical issues with adultery remaining a crime, which the Supreme Court was clearly seized of. “Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships.” Point taken. But what about attempts to commit suicide under Section 309 IPC? An exception is provided by the Mental Health Care Act, 2017 but the provision still exists with scope for abuse and erroneous application. Are we not penalising those who actually need help?

The doctrine of “private realm” is a slippery slope. If what happens between closed doors between consenting adults is considered ‘private’, what about dowry that families of brides silently cough up against their inclination, domestic violence that is lumped ‘for the sake of the marriage or children’, non-payment of maintenance? Can we possibly even remotely dilute Sections 498A IPC, 125 CrPc and the Domestic Violence Act? Can the state adopt a hands off approach in such cases?

The Bible states that even looking at another woman with lust is adultery. One of the Ten Commandments declares “Thou Shall Not Covet Your Neighbours Wife.” In this day and age with the reality of 'lead me not into temptation, I can find the way myself', people need an excuse to sin. A penal provision had at least a sliver of deterrence. The court has left it to Parliament to decide whether a new law on adultery is required. Till that happens, if at all, when what is immoral is not criminal, it has scope to be interpreted as a carte blanche to stray.

(The writer is an advocate at the Madras high court, columnist & author)