The Supreme Court five-judge Constitution bench, headed by Chief Justice Dipak Misra on Thursday, September 27 has struck down the adultery law which dates back to the 19th-century, calling it unconstitutional. The bench said that adultery couldn’t be a criminal offence and that the adultery law is also a violation of privacy right to some extent. The 158-year-old, adultery law, under which it was an offence under section 497 of the Indian Penal Code (IPC) if a man has sex with the wife of another man without the husband’s “connivance” or “consent” is now invalid in the court of law.
A woman is not man’s property
While reading the judgement, the Chief Justice said that it was time to say that “the husband is not the master”, reports The Quint. However, the bench said that adultery can still be a ground for filing a divorce, but it cannot be declared a criminal offence, as multiple parties are involved in it. The bench also observed that adultery alone can not be a crime unless it attracts the scope of Section 306 of IPC (abetment to Suicide). The Chief Justice maintains that the legal sovereignty of one sex over another is wrong.
While advocating to secure the rights of women, the bench in its verdict said that the adultery law dents the individuality of women and that women can’t be asked to think and do according to the will of society. The CJI also said that the beauty of the constitution is that it includes “I, me and you” and that any law which affects individual dignity, equity of women in a civilised society invites the wrath of the Constitution, reports NDTV.
According to the Hindustan Times, Supreme Court’s retired judge V Malimath was given a task to recommend reforms in the criminal justice system. Talking about the Adultery law, the Judge Malimath told the government that adultery should be made gender-neutral. However, the government denied accepting the recommendation.
What did the government say?
In December 2017, Joseph Shine had filed a petition against the law before the Supreme Court. The petitioner had urged that the law was discriminatory and arbitrary. He said that it violated the fundamental rights of the citizens. He has also urged the court to make men and women equally liable for adultery. The petition was represented by Advocates Kaleeswaram Raj and Suvidutt MS. While defending the barbaric law, the Center had said that the law should remain a crime to protect the “sanctity of marriage”
It said that adultery was done knowingly which ultimately leads to hurting the spouse and the children and that this was classified as a criminal offence by the Indian state in the exercise of constitutional powers.
What is adultery?
Under the Section 497 of the IPC, adultery was an offence which penalised a man for up to five years of jail term or fine if found guilty of the offence. According to the law, the married woman could not be penalised for adultery as it treats her as a victim and not as an abettor of the offence. The law said that adultery would not be a crime if the woman’s husband gives his consent to have a sexual affair with another man. The law treats the woman as the man’s property and does not give her own rights.
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery,” reads the section of the law.
The five-judge Constitution bench of the Supreme Court had reserved their judgment on August 8. The bench including justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, heard the petition for six days starting from August 1.
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