A five-judge Constitution bench headed by Chief Justice Dipak Misra unanimously struck down Section 497 of the Indian Penal Code dealing with the offence of adultery, holding it manifestly arbitrary, archaic and violative of the rights to equality and equal opportunity to women.
India's top court has ruled adultery is no longer a crime, striking down a 158-year-old colonial-era law which it said treated women as male property.
Joseph Shine, the hotelier whose petition led the Supreme Court to decriminalise adultery, is "a happily-married" Church-going Malayalee in Italy and, as his lawyer underscores, has no personal stake in the law scrapped by the court on Thursday. On the criminal side, mere adultery can not be a crime unless it attracts the scope of Section 306 of the Indian Penal Code relating to abetment of suicide, where the wife's adultery becomes a cause for the husband to kill himself.
But only men, and not women, could have been prosecuted under the adultery law.
"Married women are not a special case for the objective of prosecution for adultery". Misra met with the dissenting judges, who continued on the bench. Section 497 under the IPC implied that a woman's body is not her own and, on a whole, it denied women: 1. the right to her body in the form of agency, autonomy and independence; and 2. the object of desire and sexual autonomy.
In 1954, the court upheld adultery as a crime arguing "it is commonly accepted that it is the man who is the seducer, and not the woman".
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The highest court of the land was unequivocal in its observations.
Chief Justice Misra, in an opinion for himself and Justice A.M. Khanwilkar, observed that Section 497 (adultery) of the Code "commands" married couples to remain loyal to each other. "Husband is not the master of the wife", the verdict added. "Equality is the governing parameter", the court said. "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.
"If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not", the judgement said.
The bench questioned the deterrent effect of the adultery law.
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. If adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman's sexuality and bodily integrity gets reinforced. "It is better to be left as a ground for divorce". In South Korea and Guatemala provisions similar to Section 497 have been struck down by the Constitutional courts of those nations.