Adultery Law Supreme Court Verdict HIGHLIGHTS: Judgment to be pronounced today
A five-judge Constitution bench of the Supreme Court Thursday unanimously ruled to scrap Section 497, which deals with adultery, of the Indian Penal Code (IPC). The five-judge Constitution bench, led by Chief Justice Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, had reserved it verdict in the case in August.
Calling the law archaic and saying that it violates Articles 14 and 21 of the Indian Constitution the justices said that: “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.”
According to the adultery law, a man can be punished for having a sexual relationship with a married woman without the consent of her husband. The petitioners want Section 497 of the IPC to be made gender neutral. In India, adultery is a crime and the punishment for the same can be imprisonment for five years, or fine, or both.
"Section 497 criminalizes the conduct of the man who has sexual intercourse with the wife of another without his consent. It exempts women from criminal liability. Underlying this exemption is the notion that women, being denuded of sexual agency, should be afforded the ‘protection’ of the law. In criminalizing the accused who engages in the sexual relationship, the law perpetuates a gender stereotype that men, possessing sexual agency are the seducers, and that women, as passive beings devoid of sexual agency, are the seduced," Justice Chandrachud and Justice Khanwilkar stated in the judgment.
They further said, "It is deeply offensive to equality and destructive of the dignity of the woman. On this stereotype, Section 497 criminalizes only the accused man."
"The real heart of this archaic law discloses itself when consent or connivance of the married woman‘s husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the "licensor", namely, the husband, no offence is committed," stated Justice RF Nariman in the judgment.
Further he stated, "What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today‘s day and age, utterly irrational. On this basis alone, the law deserves to be struck down."
Before striking down Section 497 IPC, the lone woman judge Justice Indu Malhotra questioned whether the element of wrongfulness of adultery be brought under the ambit of criminal law. 'In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole,' said Justice Malhotra in the judgment.
Kavita Krishnan, Secretary, All India Progressive Women's Association (AIPWA) and a CPI(ML) Polit Bureau member said decriminalising adultery is welcome and was long overdue.
Senior CPI-M leader Brinda Karat hails the verdict and said At the same time the aggrieved wife of an adulterous husband can take recourse to laws against cruelty and also for compensation under the domestic violence prevention act. Adultery remains a ground for divorce."
Along with Swati Maliwal, the Supreme Court's verdict received opposition from women activists including Congress leader Renuka Chowdhury drew similarities between Thursday’s verdict on adultery and the verdict on triple talaq saying, “They have done that but now the men will just abandon us or not give us talaq. They will have polygamy or nikah hallala which creates hell for us as women. I am glad it’s not a crime anymore but I do not see how it helps. The court should… give us clarity.”
Voicing concern against the verdict of the Supreme Court, social activist Brinda Adige too opposed today's judgment passed by the top court.
Read detailed report here
Justice Indu Malhotra delved into the history of Section 497 of the IPC and explained in the ruling "the law was framed in the historical context that the infidelity of the wife should not be punished because of the plight of women in this country during the 1860s."
"The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution," states Justice Malhotra in the judgment.
"At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of 'romantic paternalism' which stems from the assumption that women, like chattels, are the property of men," said CJI Misra and Justice Khanwilkar in the 243-page judgment.
The Supreme Court heard the matter on adultery for six days and reserved the judgment on August 8, 2018.
(With PTI inputs)
Delhi Commission for Women Chairperson Swati Maliwal called the top court's judgment as an anti-women decision and questioned the sanctity of marriage.
Congress MP and president of women's wing Sushmita Dev tweeted, "Excellent decision to de-criminalise adultery. Also, a law that does not give women the right to sue her adulterer husband & can't be herself sued if she commits adultery is unequal treatment & militates against her status as an individual separate entity."
Senior Supreme Court lawyer Prashant Bhushan called the verdict a fine judgment. He tweeted, "Another fine judgement by the SC striking down the antiquated law in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery (only of man who sleeps with someone's wife). Adultery can be ground for divorce but not criminal."
Lawyer of the petitioner in the adultery case, Kaleeswaram Raj (right) and Thulasi K Raj outside the Supreme Court after the verdict was passed. (Express Photograph by Tashi Tobgyal)
I welcome this judgment by the Supreme Court. It was an outdated law which should have been removed long back. This is a law from British era. Although the British had done away with it long back, we were still stuck with it: NCW chief Rekha Sharma to ANI
Adultery is no longer a crime in India but could be a ground for divorce, the Supreme Court ruled today while scrapping an archaic law that punished a man but not the woman for adultery. Take a look at where other countries stand. Click here
It is a monumental judgment. I am extremely happy with the judgment. The people of India should also be happy, says lawyer of the petitioner Raj Kallishwaram (ANI)
Supreme Court unanimously declares Section 497 IPC as unconstitutional.
Law deprives married women the agency of consent. A woman loses her voice, autonomy after entering marriage and manifest arbitrariness is writ large in Section 497. Section 497 offends sexual freedom of women: Justice Chandrachud
Autonomy is intrinsic in dignified human existence. Section 497 denuded the woman from making choices. It fails to meet touchstone of article 21, says Justice Chandrachud
Section 497 deprives a woman of agency and autonomy and dignity: Justice Chandrachud
Ancient notions of man being perpetrator and woman being a victim no longer holds good, said Justice Nariman. He also added that the court cannot wait for legislation when the law has become arbitrary. "It needs to be struck down," he said.
Justice R F Nariman reads his judgment which concurs with the verdict of CJI Misra and Justice Khanwilkar. He also said that the law is archaic and violates Articles 14 and 21 of the Indian Constitution
Referring to other countries like China, South Korea, Japan where adultery is no longer a crime, CJI Misra said, "Adultery can be ground for any civil wrong. There cant be any social license that destroys the matrimonial home, but adultery should not be a criminal offence." He also declared Adultery unconstitutional
"Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage. Mere adultery can't be a crime, unless it attracts the scope of Section 306 (abatement to suicide) of the IPC. Thinking of adultery as a criminal offence is a retrograde step," CJI Misra said.
"A woman cannot be asked to think how a man or society desires. Her husband is not her master. We are not commenting on an ideal situation, merely looking at whether it should be criminalised." CJI Misra and Justice Khanwilkar said in their observation
Section 497 IPC affects the right to life of a woman under Article 21 of the Constitution of India. Women can’t be asked to think and do according to the will of society: CJI Dipak Misra
Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence. Adultery dents the individuality of women, CJI and Justice Khanwilkar said.
Dipak Misra on Adultery law: Legal sovereignty of one sex over another is wrong
It's time to say husband is not the master, says CJI Dipak Misra
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