Criminal Act Of Adultery Overturned In India


On Thursday, Chief Justice Dipak Misra and the rest of the court struck down a 158-year-old law that held adultery as a criminal offence punishable by up to five years in prison, calling it unconstitutional and saying that "husband is not the master of woman".

There was no punishment for the woman, who was seen as the victim. "It can be a ground for a civil offence, a ground for divorce", Chief Justice of India Dipak Misra said while reading out the judgment. "There can't be any social licence which destroys a home".

Most countries have abolished adultery as a crime.

Kavita Krishnan, secretary of the All India Progressive Women's Association (AIPWA) also expressed disagreement with Maliwal's views.

Justice Indu Malhotra too struck down the law as violative of the constitution, saying, "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 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination". Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery.

"Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage", Misra said, according to Bar & Bench.

What did the adultery law say?

Towards the end of the hearing, Justice Chandrachud had weighed in that making section 497 gender neutral would only address the issue of under-inclusion and that the real question is if adultery should be a criminal offence at all. CJI Mishra said mere adultery can't be a crime, but if the partner commits suicide then a separate case for abetment to suicide can be registered under Section 306 of the Indian Penal Code (IPC).

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Rekha Sharma, the head of India's National Commission for Women, said: "I welcome this judgment by the supreme court". "That apart, it is a discriminatory command and also a socio-moral one".

"The provisions of law under challenge in the present writ have been specifically created by the legislature in its wisdom, to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of the Indian society", the Centre's affidavit had said. Instead, the man was considered to be a seducer.

Whenever there are matrimonial discords or claims for maintenance, belligerent husbands have used "malicious prosecution on the ground of adultery", Raj said. They have done that but now the men will just abandon us or not give us talaq.

Adultery is considered illegal in 21 American states, including NY, although surveys show that while most Americans disapprove of adultery, they don't think of it as a crime. "This is like criminalising the triple talaq law". Supreme Court could at least direct the Government to add adultery as an offence under 498 (A) of the Indian Penal Code, 1860.

"For a man to be convicted for adultery is very rare because the crime has to be proved conclusively beyond doubt in the court". Hon'ble Supreme Court should have thought that this decision would end up the institution of marriage.

Senior Supreme Court lawyer Prashant Bhushan termed the verdict a fine judgement. The court said the law violated self-determination and privacy.

A petition had come before the Supreme Court seeking a ban on the legal practise by sitting Members of Parliament and other legislators.