By Elton Gomes
The Supreme Court today on Thursday said abolished a 158-year-old law, thus declaring that adultery is no longer a crime in India. “The husband is not the master of the wife,” the five-judge constitution bench unanimously concurred and called the Victorian era adultery law – Section 497 of the Indian Penal Code – as arbitrary, NDTV reported.
The Victorian era law punished a man who has an affair with a woman “without the consent or connivance of” her husband. A man found guilty could be sentenced to five years in jail, could be fined, or both. The woman would not be punished as she was seen as the victim.
The constitutional bench said that any provision treating women with inequality is not constitutional and that it is time to say that the husband is not the master of a woman. The bench said that adultery will remain a ground for divorce.
In its defence, the Centre claimed that adultery laws should exist in India as it protects the sanctity of marriage. The petition opposing the law was filed on the premise that the law does not treat men and women equally.
What the Supreme Court said
Chief Justice of India, Dipak Misra, said, “The wife can’t be treated as chattel and it’s time to say that husband is not the master of woman.” Misra further said that “there can’t be any social licence which destroys a home,” NDTV reported.
The judges took into consideration the fact that most countries had struck down laws against adultery. Making adultery a crime would mean “punishing unhappy people”, said Justice Misra. As he began reading out the verdict, the Chief Justice remarked that the beauty of the constitution is that it makes space for “the I, me and you” and “any law which dents individual dignity and equity of women in a civilised society invites the wrath of the constitution,” as per the NDTV report.
Justice Misra reiterated that subordination of any sex over the other is clearly unconstitutional. The court ruled that mere adultery cannot be a crime unless something is added.
What is Section 497?
The colonial era law was drafted in 1860, and sought to criminalise adultery with up to five years imprisonment. Section 497 defined a perpetrator as someone who “has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery.” More importantly, it adds that “In such case the wife shall not be punishable as an abettor,” as per a report in News18.
The petition opposing Section 497 argued that the adultery law was based on the patriarchal idea of women as the property of men. The petition said, “It indirectly discriminates against women by holding an erroneous presumption that women are the property of men. This is further evidenced by the fact that if adultery is engaged with the consent of the woman’s husband, then such act ceases to be an offence…It amounts to institutionalized discrimination,” as per the News18 report.
The issue of consent
An important issue raised during the trial was whether a sexual act between two consenting adults can be treated as a criminal offence, even if it is not on the lines of conventional morality.
CJI Misra had orally observed in August that sending a person to prison for five years for adultery did not appeal to common sense. He instead suggested a civil remedy for adultery: divorce.
“If a third party attacks or molests the wife of another, it amounts to rape. Rape is an offence. But if a relationship is carried with the consent of the woman, how does it amount to an offence? If there is consent [between two adults], why punish the wife’s lover?” CJI Misra argued, News18 reported.
Why the Centre was in support of anti-adultery laws
The SC’s verdict might be seen as a defeat to the Centre. In July, the central government told the Supreme Court that anti-adultery laws were required so that the “sanctity of marriage and the institution of family” can be protected. The Centre claimed that any attempt to abolish adultery laws would hurt “Indian ethos”.
The government said so while responding to a court notice on a public interest litigation that sought to struck down the adultery law as it was not gender neutral and the provisions were tilted against men.
During the preliminary hearing, the apex court, which had earlier upheld the law, agreed with the submissions that the law did seem outdated now. The Supreme Court agreed with the argument that the law allowed the man to condone the act of his wife and not file a complaint.
Elton Gomes is a staff writer at Qrius
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