Answer Writing Practice for UPSC IAS Mains Exam: Paper - III (General Studies – II) - 03 October 2018


Answer Writing Practice for UPSC IAS Mains Exam


UPSC Syllabus:

  • Paper-III: General Studies -II (Governance, Constitution, Polity, Social Justice and International relations)

Q. “The Supreme Court’s recent decision to decriminalize adultery is a step in the right direction”. Comment (250 words)

Model Answer:

Approach:

  • Why in news?
  • Introduction
  • Commenting on the decision
  • Conclusion

Why in news?

The Supreme Court has passed yet another remarkable decision on Sept 30th decriminalizing unanimously the offence of adultery by holding Section 497 of the Indian Penal Code (IPC) unconstitutional.

Introduction

  • Adultery refers to the voluntary sexual intercourse between a married person and a person who is not their spouse.
  • Section 497 of the Indian Penal Code (IPC) makes adultery a punishable offence for men.
  • It does not punish the erring spouses, but instead punished the adultering man, or rather ‘the outsider’, for having extra-marital relations with a woman who he knows to be married.
  • It was only an offence if the husband had not consented to this relation, implicitly suggesting that the wife was the property of her husband.
  • Section 497 of IPC gave husbands the exclusive right as an aggrieved party to prosecute the adulterer in a case involving his wife. The same recourse is, however, not available to the wife.

Commenting on the decision

  • For any act to be a crime, it has to be committed against society at large. So far, Adultery was seen as a crime against the institution of marriage, thus justifying it to be a breach of security and well-being of society. This argument was unanimously dismissed by the bench. The court observed that the issue of adultery between spouses was a private matter, and could be a ground for divorce under civil law.
  • The court held that even then the matter was private, and anything otherwise would be a grave intrusion into the privacy of individuals.
  • Dismissing the regressive patriarchal notion of women being “chattels” of their husband, the court held that Section 497 denied women ownership of their sexuality and agency over their own relationships. The court even relied on S. Puttaswamy v. Union of India to explain this deprivation of autonomy as a violation of their right to privacy and to live with dignity, thus violating their fundamental rights under Article 21 of the Constitution.
  • The adultery provision also violated the right to equality guaranteed under Article 14. The fact that the commission of the offence would have been in the absence of the husband’s consent proved the inequality between the spouses. Section 497 consumed the identity of a wife, as an individual with rights as an equal partner to the marriage. Therefore, not affording both parties to a marriage equal rights and opportunities would be discriminatory and a violation of their right to equality.
  • Exempting women under Section 497 from prosecution and being prosecuted was claimed to be ‘protecting’ them and in consonance with Article 15(3) of the Constitution that allowed the state to make laws for the benefit of women and children. This provision was made when bigamy was prevalent and Lord Macaulay, the drafter of the IPC, did not find it fair to punish one inconsistency of the wife when the husband was allowed to marry many others. However, a fallacy in this reasoning was pointed out by the court — the law that takes away the right of women to prosecute, just as her husband had the right to proceed against the other man, could not be considered ‘beneficial’ and was, in fact, discriminatory.

Conclusion

The decision to scrap this archaic law is definitely a step in the right direction as it ends discrimination and upholds the rights guaranteed by the constitution. Most countries around the world have already done away with this practice.

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