The five-judge bench comprising Chief Justice of India (CJI) Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra observed that the law on adultery is archaic, has long outlived its objective, does not square with today's Constitutional morality.
Adultery is no longer a crime, India's top court ruled Thursday, declaring a colonial-era law that punished the offence with jail time unconstitutional and discriminatory against women.
The Supreme Court's rejection of this law has signalled a changing India. On the criminal side, mere adultery can not be a crime unless it attracts the scope of Section 306 of the Indian Penal Code relating to abetment of suicide, where the wife's adultery becomes a cause for the husband to kill himself.
Women could not file a complaint under the archaic law nor be held liable for adultery themselves, making it exclusively the realm of men. "The court should. give us clarity", she said. Misra met with the dissenting judges, who continued on the bench. It held the section violated women's right to equality. And, it is time to say that a husband is not the master.
However, India's ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence.
In a strong echo of this, Justice Indu Malhotra noted in her judgment that "any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 (equality) and 15 (prohibition of discrimination) of the Constitution, which form the pillars against the vice of arbitrariness and discrimination". Pronouncing the judgement for himself and Justice Khanwilkar, CJI Misra said, "Section 497 is arbitrary and offends the dignity of women".
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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...."
The hotelier, who has been reluctant to speak about the case, told the newspaper why he fought all the way to abolish the adultery law. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other.
Section 497 of the IPC defines adultery as an offence committed by a man against a married man if the former engages in sexual intercourse with the latter's wife. 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".
It denied a wife the right to prosecute her adulterous husband, reserving this power only for the husband of the woman involved in the relationship. 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.
"Adultery can be ground for any civil wrong".