ET View: Consent is king, adultery can be ground for divorce, not a crime by itself

Consent between two legally adult persons is a pivotal idea in any functioning, mature democracy. This holds true for sexual relationships. Ergo, it holds true for sexual relationships that reside outside the legal and societal rubric of marriage As the Chief Justice of India rightly stated on Wednesday, adultery can certainly be grounds for divorce -- and the entailing legal contest that may or may not accompany them. But it certainly should not be in the category of criminal offence.

Adulterous men, according to current law can be punished under Section 497 of the Indian Penal Code. The adulterous woman cannot -- beyond being asked for a divorce, if she is married, that is. Section 198(2) of the Code of Criminal Procedure (CrPC) states that the husband, or the 'person in charge of the woman' during an adulterous act, can legally complain. Fair enough. The complaint can be an argument for divorce -- and should be applicable regardless of gender.

A sexual relationship that lies outside the accepted tenets of marriage can be unfortunate, as it can be painful but making adultery itself a criminal offence is like making lying illegal. Stoning women for adultery, as is the case in some countries, holds the same internal logic as punishing man or woman for the act itself. For the sake of making consent between two adults the only thing that matters, the decision to make adultery criminal should be quickly reversed.