Is India’s adultery law hopelessly antiquated? Well, a large section of civil society as well as the legal fraternity seems to think so. Yet recently, the Bombay High Court struck down Mumbai businessman Deepak Mirwaini’s petition that the law against adultery, or Section 497 of the Indian Penal Code to be precise, be declared unconstitutional.

Mirwaini was having an affair with a married woman and this made him culpable under Section 497. The law states: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.” The woman, who may well be an equal participant in the act of adultery, is kept outside the purview of the law, which goes on to declare, “In such case the wife shall not be punishable as an abettor.”

Many legal experts believe that Section 497 is an unjust law, and out of sync with the times. First, it holds only the man guilty of adultery. Second, a woman cannot charge her husband with having committed adultery — that privilege belongs only to the husband of the woman with whom he has been having an affair. And finally, given the sexual mores of modern society it is ridiculous to continue to treat adultery as a criminal offence.

But the judges dealing with Mirwaini’s case did not think so. The Bombay High Court bench, comprising Justice B.H. Marlapalle and Justice U.D. Salvi, ruled that making the law unconstitutional “would give free play to extra-marital affairs and affect the stability of marriage.” However, they did concede that “it was time Section 497 was revisited”.

That’s what many men’s groups and legal experts have been urging for a long time. What is specially galling to a lot of people is that a woman who may be a consensual partner in an extra-marital affair is allowed to go scot free under this law. Justice V.S. Malimath, whose recommendations under the Malimath Committee on Reform of Criminal Justice System of India, are lying with the government since 2003, says there is absolutely no justification to punish only male adulterers under this law.

“Section 497 is a highly imbalanced law. There was a time when the purity and chastity of women was high in our society. Today, society has changed and women are increasingly indulging in extra-marital affairs,” says Justice Malimath.

However, others say that the move would render women more vulnerable to abuse. “Including women under this law can provide husbands with a tool to make ‘mischief’ for their wives,” observes Chennai advocate Geetha Ramaseshan. “If women are included in this section, husbands may misuse the law to harass their wives,” she adds.

Ramaseshan feels that the law, as it stands, is “discriminatory” to women as well since it does not allow the wife of the adulterer to punish her husband. In the V. Revathi vs Union of India case in 1988, Ramaseshan had argued why the right to prosecute the husband would not be extended to the wife of the adulterer and whether this did not violate Article 14 (equality before the law) of the Constitution. The petition was eventually dismissed by the apex court.

Indeed, women’s groups point out that the very wording of Section 497, which was codified in 1860, is hopelessly archaic and sexist. By stipulating that a man cannot have sexual intercourse with another man’s wife “without the consent or connivance of that man”, it seems to suggest that a married woman is the property of her husband, to be dealt with as he pleases. “It smacks of ownership of a woman, paternalism and treats women as property of men,” advocate Nalini Chidamabaram had argued on behalf of her client in another case involving adultery under Section 497.

Mihir Desai, a lawyer who filed a co-petition on behalf of an NGO along with Mirwaini’s petition, echoes that view: “It is a highly Victorian law that ignores the fact that women could also have sexual desires and regards only men as the seducers.”

Again, treating adultery as a crime is also offensive to many. “Extra-marital affairs can be painful for either spouse but they can scarcely be treated as a crime. There are many reasons why a marriage breaks up,” points out Ramaseshan.

There is, of course, a heated debate surrounding whether or not the act of adultery should continue to be treated as a crime or whether Section 497 should be scrapped altogether. Even though he has recommended that women be brought under the law, Justice V.S. Malimath, for example, feels that Section 497 should continue to be part of our statute books. “It is an expression of society’s disapproval of such acts. Adultery may not be a criminal offence in other countries but we are a conservative society. We need such laws to deter people from committing such acts,” he explains.

Others advise the middle path. While proposing that adultery be decriminalised, they also support the provision to keep women out of Section 497. N.R. Madhava Menon, the former vice-chancellor of the National University of Juridical Sciences, Calcutta, is one of those who feels that that “questionable private wrongs” such as adultery should be decriminalised. His recommendations under the Draft National Policy on Criminal Justice are lying with the home ministry since 2007.

Menon believes that pro and anti-women groups both have a point. “No doubt women have achieved a certain status in society and do not require any further protection. Women also have wide-ranging powers to prosecute men under the Domestic Violence Act. However, women’s liberation should not be viewed in the context of the urban population alone,” he says. “Large sections of Indian women still require protection and the Constitution understands that and provides for it under this section.”

No doubt, it will be a while before the legal debate over adultery is resolved. Until then, both men and women will continue to protest that Section 497 gives them an unfair deal.