SC decriminalises adultery, strikes down Sec 497 of IPC
27 September 2018
The Supreme Court (SC) on Thursday declared section 497 of the Indian Penal Code (IPC) dealing with adultery is unconstitutional and that it cannot be treated as a criminal offence and cannot be the sole basis for divorce.
The ruling comes on a petition challenging the constitutional validity of Section 497 (Adultery) of the Indian Penal Code. The apex court ruled that mere adultery cannot be grounds for criminality. However, if it leads to suicide because of the partner's adulterous relations, then it will be treated as abetment to suicide (under sections 306) if evidence is produced. However, an adulterous act can be used as grounds for divorce.
The five-judge Constitutional bench headed by Chief Justice Dipak Misra comprising Justices D Y Chandrachud, R F Nariman, A M Khanwilkar and Indu Malhotra unanimously ruled to strike down the archaic and regressive law.
CJI Misra also noted that it's time to say that the husband is not the master. Equality is the concept of the hour. Subordination of one sex to the other is unconstitutional.
Justice Chandrachud championed the cause of sexual autonomy of women within marriage. Partners in marriage should have respect for each other's sexual autonomy. This respect blooms from the respect, for each other, he noted.
While all five judges concurred on decriminalising adultery, the judges noted that it still serves as a ground to file for a divorce.
Justice Indu Malhotra, the lone woman judge in the constitution bench, too termed Section 497, which criminalises adultery, as unconstitutional. "Section 497 Institutionalises discrimination," she noted.
In the provision of the law, earlier, adultery was not a crime, if it had the consent of the married woman. Justice Chandrachud, in a section of the judgement titled 'good wife' said, in the most private zone, choice is important and sexuality cannot be dissected from desire. "Section 497 deprives women, their choice about sexuality and hence unconstitutional".
The ruling serves a blow to the NDA government, which argued in favour of the law, saying, it is necessary to protect the institution of marriage.
The lawyer of the petitioner Raj Kallishwaram, hailed the verdict as "monumental". "I am extremely happy with the judgement. The people of India should also be happy, news agency ANI quoted him as saying.
National Commission of Women chief Rekha Sharma welcomed the decision, saying, it was an outdated law that should have been removed long time ago. "This is a law from the British era, although British had done away with it long back, we were still stuck with it," she said.