Supreme Court Quashes Adultery Law As Unconstitutional

Published on 27 Sep 2018 by Shivi

In a landmark judgement today, the Supreme Court scrapped the 150-year old adultery law as unconstitutional. Reading out the judgement, CJI Dipak Misra clearly stated that equality is the need of the hour. He also added that time has come when the husband should not be considered the master. 

"Adultery cannot and should not be a crime. It can be a ground for a civil offence, a ground for divorce," a five-judge bench led by outgoing Chief Justice of India Dipak Misra said. 

The CJI spoke for himself and Justice A.M. Khanwilkar. Justice R.F. Nariman spoke of the fact that other countries have done away with it as a criminal offence. 

He said that the adultery law was against right to equality and life. Justice D.Y. Chandrachud spoke up against patriarchy and gender inequality to strike it down. 

Subordination of any sex over the other is clearly unconstitutional reiterated CJI Misra. The court also termed adultery law as manifestly arbitrary. Mere adultery can't be a crime unless something is added, the court observed. 

A five-judge bench comprising of Chief Justice of India Dipak Misra, Justice RF Nariman, Justice D.Y. Chandrachud, Justice Indu Malhotra and Justice AM Khanwilkar pronounced the verdict. 

On August 8, the bench had reserved its verdict after Additional Solicitor General Pinky Anand, appearing for the Centre, concluded her arguments. 

During its previous hearing, incumbent Chief Justice of India, Dipak Misra observed, “Adultery can be a ground for divorce. It can be part of civil law involving penalties. But why a criminal offence?”. 

The centre had defended the Victorian law, stating that continuation of the adultery law is important as it ensures the sanctity of the marriage and is for the public good. 

Earlier, incumbent Chief Justice of India, Dipak Misra observed." “Adultery can be a ground for divorce. It can be part of civil law involving penalties. But why a criminal offence?”. 

An Indian businessman based in Italy named Joseph Shine, who hails from Kerala, filed a Public Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is discriminatory. The petition argued that the adultery law was biased in the idea of women as a property of men. 

Section 497 of the Indian Penal Code 

Section 497 of the IPC gives a husband the exclusive right to prosecute his wife's lover. A similar right is not conferred on a wife to prosecute the woman with whom her husband has committed adultery. 

Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery. Further, the law does not take into account cases where the husband has sexual relations with an unmarried woman. 

Section 198 (2) the Criminal Procedure Code

The code allows a husband to bring charges against the man with whom his wife has committed adultery.

SOURCE

Tags: Extra-Marital Affair 

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