Adultery is no More a Crime, Says Supreme Court; Twitterati Reacts

Hugh Fox
September 28, 2018

The five judges on the bench were unanimous in their opinion that the adultery law was unconstitutional.

India's Chief Justice of the Supreme Court has presided over a string of verdicts in recent weeks that grant more rights to women, gay couples and religious minorities as he prepares to retire from the bench next month.

While reading out the judgement on adultery, Chief Justice Dipak Misra said that while it could be grounds for civil issues like divorce, "it cannot be a criminal offence". Framed within the then-prevailing ethos of the Victorian era, the law perceived adultery to be a problem to be tackled between two men, over the body of the woman. Women having affairs could not be prosecuted, but they also couldn't file a complaint against cheating husbands. "The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife", the affidavit said.

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The five-judge constitution bench made an important observation on privacy, saying that treating adultery as an offence would tantamount to the State entering into a real private realm.

Section 497 treats a married woman as the commodity of her husband, the Bench held.

He joined India's highest court in 2011. Equality is the governing principle of a system. In 1985, Chief Justice YV Chandrachud had upheld the constitutional validity of Section 497 (adultery). And, it is time to say that a husband is not the master.

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Rejecting the contention of the Centre, the court said: "The ostensible object of Section 497, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not in fact the object of Section 497 at all...." In such a case, both the wife and her partner can be implicated and the partner can be charged with Section 306 read with Section 497 of IPC, the court held.

However, India's ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence. Under this law women were not "protected" as alleged by many, because women could not charge the adulterer husband, as women were pursed by their husband as property. "If, during this period, she has sex with another man, the other man is immediately guilty of the offence", Justice Nariman, who wrote a separate but concurring judgment, observed. It also cited the "rising misuse of Section 498A of IPC", commonly known as the dowry law, to demonstrate how laws dealing with violence against women can be misused "for harassing the husbands". If adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman's sexuality and bodily integrity gets reinforced. She said "a law that does not give women the right to sue her adulterer unequal treatment and militates against her status as an individual". Besides, there is no data to back claims that abolition of adultery as a crime would result in "chaos in sexual morality" or an increase of divorce.

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