‘Husband not master’: SC scraps adultery law
NEW DELHI: Striking down adultery as a criminal offence, the Supreme Court on Thursday ruled that the 19th century law that “treats a husband as the master” is unconstitutional but the offence is a “ground for divorce.”
“The adultery law is arbitrary and it offends the dignity of a woman,” Chief Justice of India (CJI) Dipak Misra, who led the five-judge Constitution Bench, said.
Quashing the archaic law, which has been on the statute book for more than 150 years, the court also said in a unanimous verdict, “...if it (adultery) is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better be left as a ground for divorce.”
Adultery is the second offence to be decriminalised by the top court in 20 days. Earlier this month, the Supreme Court had decriminalised gay sex between consenting adults.
Writing the judgment for himself and justice AM Khanwilkar, the CJI Misra said the law treats a woman as chattel.
“It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted,” he said.
Section 497 of the Indian Penal Code (IPC) made adultery an offence if a married man has sex with the wife of another married man without his “connivance” or “consent”. But only men, and not women, could be prosecuted under the law.
In his separate but concurring
verdict, justice RF Nariman attacked the archaic law, saying, “What is therefore punished as adultery‘ is not adultery’ per se but the proprietary interest of a married man in his wife.”
Calling for gender equality, justice Nariman added, “A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also.”
The Bharatiya Janata Party (BJP) and the Congress both welcomed the decision of the top court, though many raised concerns over the implications of the judgment. BJP spokesperson Nalin Kohli said, “We have to look at judgments of the Supreme Court with regards to fundamental rights, whether it is equality of either men or women or everyone before the law or it is about right to privacy or it is about freedom of speech and expression. It has to been seen in context of this evolution. This judgement is a step in that direction,” he told news agency Press Trust of India.
Congress MP and president of the women’s wing of the party, Sushmita Dev, tweeted, “Excellent decision to decriminalise adultery. Also a law that does not give women the right to sue her adulterer husband & can’t be herself sued if she is in adultery is unequal treatment & militates against her status as an individual separate entity.”
The top court had last year agreed to test the constitutional validity of this provision on a petition by an Italy-based nonresident Indian, Joseph Shine. He questioned the gender bias in the colonial-era law, which, he argued, flies in the face of the constitutional right to equality.
Assailing the adultery law on the grounds that it violated the sexual autonomy of a woman, justice DY Chandrachud in his judgment said, “Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. It disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse.”
“Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster.” he added.
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.”
Hailing the judgment, senior Supreme Court lawyer Prashant Bhushan tweeted, “Another fine judgement by the SC striking down the antiquated law in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery (only of man who sleeps with someone’s wife). Adultery can be ground for divorce but not criminal.”
Delhi Commission for Women chief Swati Maliwal, however, said decriminalising adultery completely is only going to add to the pain of women in the country. “Totally disagree with the Supreme Court judgement on adultery. The judgment is antiwomen. In a way, you have given an open license to the people of this country to be in marriages but at the same time have illegitimate relationships,” she said.
“What is the sanctity of marriage?”
Congress leader Renuka Chowdhury said the judgment was a matter of concern. “This is like criminalising the triple talaq law. They have done that but now the men will just abandon us or not give us talaq. They will have polygamy or nikah hallala which creates hell for us as women. I am glad it’s not a crime anymore but I do not see how it helps. The court should... give us clarity,” she told PTI.
Asaduddin Owaisi raked up the issue of triple talaq, saying the Supreme Court decriminalised sections 377 and 497, but it had just “set aside” the practice of instant divorce among Muslims, and the government made it a penal offence through an ordinance. “The Supreme Court didn’t say Triple Talaaq is Unconstitutional but “set it aside “but Apex Court has said 377 & 497 is Unconstitutional will Modi Government learn from these judgments and take back their Unconstitutional Ordinance on Triple Talaaq,” he tweeted.