Adultery is not a crime, Section 497 of IPC unconstitutional: SC

Friday, 28 Sep, 2018

Dixit and Ramesh welcomed it, but some "wronged husbands" said the verdict has washed away many years of their work.

In simple words, Section 497 of Indian Penal Code means sexual intercourse by a man with a married woman without her husband's consent amounts to adultery, and the man shall be held liable for the crime. "In such case the wife shall not be punishable as an abettor", the section says.

Justice Chandrachud said under 497, a married woman is treated as the property of the husband and added that it denudes a woman of making fundamental choice of sexuality.

"A law that does not give women the right to sue her adulterer husband and can't be herself sued if she is in adultery is unequal treatment", she wrote.

Justice DY Chandrachud, who was part of a five-judge constitution bench that unanimously struck down Section 497 of the Indian Penal Code (IPC) dealing with the offence of adultery, said the provision was "destructive" and deprives women of their "autonomy, dignity and privacy". Justice Khanwilkar said Section 497 is violative of right to equality and right to equal opportunity to women.

What does the government's affidavit say?

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The Supreme Court declared Section 497 as unconstitutional.

Kumar Jahagirdar, another activist fighting for the rights of the men, said domestic violence should be made gender neutral and there should be counselling before marriages to check compatibility between couples.

"Our society is not ready for this, we do not have to blindly follow western norms", said Ajay Gautam, founder of a right-wing group called Hum Hindu (We are Hindus). "Stability of marriages is not an ideal to be scorned".

Since then, the top court has rejected similar pleas, including the constitutional validity of the law, at least twice - 1985 and 1988.

"It is a big victory for women's status and position within marriage and within families" said Jayna Kothari, an attorney and the executive director of the Center for Law and Policy Research in Bangalore.

In his 77-page verdict, he said "a society which perceives women as pure and an embodiment of virtue has no qualms of subjecting them to virulent attack: to rape, honour killings, sex-determination and infanticide".

Insisting that the penal provision should stay, Anand had said there was no claim to privacy in an adulterous life.

"Any system or law which affects individual dignity of women in a civilised society invites the wrath of the Constitution", he added.

Married women in India face huge pressure to limit contact with men other than their husbands.

It observed that both the offence of adultery and the definition of "aggrieved person" was "absolutely and manifestly arbitrary" and it "confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate".

A wife can not be made a slave to her husband's sexual desires. "Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution", said the two-judge concurring judgement penned by CJI Misra said.