India’s top court scraps adultery law

Physicality is an individual choice, judge says after unanimous verdict by five-member bench

India’s top court yesterday decriminalised adultery in a landmark judgment aimed at upholding the right to equality and freedom, scrapping a law first brought in under British colonial rule in 1860.

In a unanimous judgment, the five-member bench of the Supreme Court struck down a law that meant a man who had sex with a married woman without getting her husband’s permission could be charged and face up to five years in prison if convicted.

“Adultery cannot and should not be a crime. 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.

It is the second landmark judgment in the personal sphere in India this month. Three weeks ago, the Supreme Court scrapped a colonial-era ban on gay sex.

Appearing for India’s Hindu nationalist government, Additional Solicitor General Pinky Anand had argued last month that adultery should remain a criminal offence to ensure the sanctity of marriage.

While very few people have been sentenced for adultery in recent years, the threat of charges has often been used

Adultery cannot and should not be a crime. It can be a ground for a civil offence, a ground for divorce Dipak Misra | Chief Justice of India

in matrimonial disputes to put pressure on women, lawyers said.

“Physicality is an individual choice,” Justice D.Y. Chandrachud, one of the fivemember bench, said in the ruling.

The law was based on the concept that a woman loses her individuality once she is married, he said, adding, “adultery is a relic of the past”.

Petitioner Joseph Shine, a businessman, had challenged the constitutional validity of the adultery law, saying it discriminates against both men and women.

By exonerating wives of adultery if done with the consent of their husbands, it discriminates against women, and amounts to “institutionalised discrimination”, the petition said.

India’s top court yesterday struck down Section 497 of the Indian Penal Code and ruled that adultery is no longer a crime, declaring a colonial-era law that punished the offence with jail time unconstitutional and discriminatory against women.

The more than centuryold law prescribed that any man who slept with a married woman without her husband’s permission had committed adultery, a crime carrying a five-year prison term.

“Thinking of adultery from a point of view of criminality is a retrograde step,” unanimously declared the five-judge bench of the Supreme Court.

Women could not file a complaint under the archaic law nor be held liable for adultery themselves, making it solely the realm of men.

The court said the law deprived women of dignity and individual choice, and treated them as the property of men.

It also said that adultery, while valid grounds for divorce, was a private matter.

“Mere adultery can’t be a criminal offence. It is a matter of privacy. Husband is not the master of wife. Women should be treated with equality along with men,” Chief Justice Dipak Misra said.

The court upheld the legality of the crime in 1954, arguing that in adultery “it is commonly accepted that it is the man who is the seducer, and not the women”.

Legal challenge

A petitioner had challenged the law earlier this year, describing it as discriminatory.

Most countries have abolished adultery as a crime. “It shouldn’t be a criminal offence, other people are also involved in it,” Misra said, reading out the judgement, also on behalf of Justice A.M. Khanwilkar.

Any discrimination shall invite the wrath of the Constitution, the Chief Justice said, adding that a woman cannot be asked to think about the way society desires her to do.

Justice Rohinton F. Nariman, reading out his judgement, said: “Women can’t be treated as chattel”.

Justice D.Y. Chandrachud in a concurring, but separate judgement, said society has two sets of morality in sexual behaviour — one for women and another for men.

Society treating women as embodiment of virtue leads to things like honour killings, he said, adding that the archaic law is against dignity, liberty and sexual autonomy guaranteed under the Constitution.

Justice Indu Malhotra, the lone woman judge on the bench, said that Section 497 is clear violation of fundamental rights granted in the Constitution and there is no justification for continuation of the provision.

CJI, who wrote the judgement for himself and Justice Khanwilkar, said adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia.

The bench held that adultery can be treated as civil wrong for dissolution of marriage.

There can’t be any social licence which destroys a home, the CJI said, but added that adultery should not be a criminal offence.

The court said adultery can be a ground for civil wrong, a ground for divorce but not a criminal offence.

Justice Chandrachud said autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of past.

Justice YV Chandrachud

Five-judge bench of the Supreme Court declared unanimously Women can’t be treated as chattel.”

Justice Rohinton F. Nariman