Adultery – No longer punishable in India

“Any law which affects individual dignity, equity of women in a civilised society invites the wrath of the Constitution.”

A Constitution Bench of the Supreme Court today struck down Section 497 of The Indian Penal Code which penalises Adultery.

The judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The Bench wrote four separate but concurring judgments. CJI Misra wrote on behalf of himself and Justice Khanwilkar. Justices Nariman, Chandrachud and Malhotra wrote a judgment each.

CJI Dipak Misra before pronouncing his judgment stated that-

Any provision treating woman with inequality is not Constitutional.”

He went on to strike down Section 497 on grounds of being manifestly arbitrary and therefore violation of Article 14 (Equality before Law) of the Constitution of India.

He further held that Adultery can be ground for civil issues including dissolution of marriage, but it cannot be a criminal offence.

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Justice Nariman agreed with CJI Misra and Justice Khanwilkar J, holding Section 497 violative of Articles 14 and 15 of the Constitution.

Ancient notions of man being perpetrator and woman being victim no longer holds good”, he held.

Justice Chandrachud was the next to agree with the judgment, stating that Section 497 is based on viewing women as chattel, which seeks to control sexuality of woman, and hits the autonomy and dignity of women. He, therefore struck down the provisions criminalising adultery as violative of Articles 14 and 21 of the Constitution.

Finally, Justice Malhotra sealed the fate of the provision, questioning the need to make Adultery a criminal offence. The Bench thus with one accord struck down Section 497 as being ultra vires to various provisions of the Constitution.

Section 497 of IPC criminalises the offence of adultery, but only a man is liable to be punished for the offence. Wife is not treated even as an abettor.

Further, if the husband of the woman gives his consent for sexual intercourse with another man, no offence lies.

The law identifies the married man as the victim because the offence of adultery is looked as an offence against husband. Further, it does not give any right to a woman to prosecute her husband to be in an adulterous relationship.

The crux of the judgement is-

# Adultery “without a shadow of doubt” can be ground for divorce.

# “The husband is not the master of the wife,” says Supreme Court.

# “The wife can’t be treated as chattel.”

# Subordination of any sex over the other is clearly unconstitutional.

Adultery WL

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