Published: Fri, September 28, 2018
Global Media | By Jackie Banks

India's top court says adultery no longer criminal offence

India's top court says adultery no longer criminal offence

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 goal, does not square with today's Constitutional morality.

The Supreme Court, while striking down the law on adultery on Thursday, said that treating it as an offence would tantamount to punishing people who are unhappy in marital relationships.

NEW DELHI-The chief justice of India's Supreme Court has presided over a string of verdicts in recent weeks that grant more rights to women, gay couples and religious minorities, challenging deeply conservative Indian society as he prepares to retire from the bench next month. Adultery can still be grounds for divorce in India, the verdict said, but a criminal penalty violated women's protection to equal rights under the law.

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 provisions that have been struck down are Section 497 of the Indian Penal Code, which dealt with adultery, and Section 198 (2) of the Criminal Procedure Code that steered prosecution.

The petitioner, Joseph Shine from Kerala, had challenged the two sections on the ground of discrimination.

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He joined India's highest court in 2011.

"Thinking of adultery from a point of view of criminality is a retrograde step", unanimously declared the five-judge bench of the Supreme Court. "Equality is the governing parameter", the court said. "A husband is not the master of his wife". The Centre had defended the law saying it's essential to preserve the institution of marriage.

In the four separate but concurring judgments today, the bench said Section 497 of the IPC was "unconstitutional" and fell foul of Article 21 (protection of life and liberty) and Article 14 under the Constitution. "What's sanctity of marriage then?" In 1985, Chief Justice YV Chandrachud had upheld the constitutional validity of Section 497 (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", Justice Nariman said.

What did the adultery law say? 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". "The emphasis on the element of connivance or consent of the husband tantamount to subordination of women".

While the law allows the aggrieved husband of the married woman in an adulterous relationship to file a complaint, it does not extend the same right to an aggrieved woman if her husband is found to be in an adulterous relationship. 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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