Criminalising adultery is unconstitutional and arbitrary, rules Supreme Court

DCW Chairperson condemns SC ruling on adultery calls it'anti-women decision

India's Supreme Court rules adultery not a crime any more

The Supreme Court on Thursday, September 27, gave its ruling that adultery is not a crime and it saw people getting polarised over their reaction.

"Also, if the husband consents or connives at such sexual intercourse (between his wife and another man), the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband".

It is matter of pride for those of us fighting to defend women's rights that the Bench had a woman judge on it, the recently appointed Justice Indu Malhotra who held that Section 497 is a clear violation of the fundamental rights granted by the Constitution and there is no justification for the continuation with this archaic provision.

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. Over the years, more than 60 countries have done away with laws that made adultery a crime.

"Any law which affects individual dignity, equity of women in a civilised society invites the wrath of the Constitution", the Chief Justice said. A woman can not be asked to think as a man or as how the society desires.

Businessman Joseph Shine challenged the court to strike down the law, arguing it was discriminatory against women and arbitrary. Many Twitterati was amused by the fact that though adultery is not a crime anymore, Triple Talaq is still a criminal offence. "A husband is not the master of his wife". "If, during this period, she has sex with another man, the other man is immediately guilty of the offence", Justice Nariman, who wrote a separate but concurring judgment, observed.

The Bench observed that adultery can only be retained as a civil fault within the matrimonial law and the parties to a marriage can invoke it as a ground for divorce.

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The Supreme Court bench also held that adultery would continue to be treated as civil wrong and can be ground for dissolution of marriage.

Section 198 (2), Criminal Procedure Code: No person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497...

Section 497 further complicated the existing scenario by giving agency to the husband to sue the man his wife was having a relationship with.

However, not all women and their bodies were unanimous over the apex court's ruling. Instead of making 497 gender neutral, criminalising it both for women and men they have decriminalised it totally! It is her purity that was guarded by her husband.

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 emphasis on the element of connivance or consent of the husband tantamount to subordination of women".

Flavia Agnes is a women's rights lawyer.

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