Adultery not a crime, rules India’s top court
new delhi — Adultery is no longer a crime, India’s Supreme Court ruled on Thursday, declaring a colonial-era law that punished the offence with jail time unconstitutional and discriminatory against women.
The more than century-old adultery 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 in the country.
“Thinking of adultery from a point of view of criminality is a retrograde step,” unani-
mously declared a bench of the court. The court said the law deprived women of dignity and individual choice and “gives licence to the husband to use women as a chattel”. —
new delhi — India’s top court on Thursday 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 top court struck down a law that meant a man who had extramarital sex with a married woman could be charged and face up to five years in jail if convicted.
The adultery law (Section 497 IPC) had punished only a married man for having extramarital sexual relationship with a married woman — a law defended by the Centre as being essential for preserving the institution of marriage.
“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.
“Mere adultery can’t be a criminal offence. Adultery may not be the cause of an unhappy marriage, but other way around. It will tantamount to punishing people who live in an unhappy marriage.
“It is a matter of privacy. Husband is not the master of wife. Women should be treated with equality along with men,” Chief Justice Misra said.
Justice D.Y. Chandrachud, one of the five-member bench, said a woman had sexual autonomy within marriage and marriage does not mean ceding autonomy of one to the other.
“Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice,” said Justice Chandrachud. “Women can’t be treated unequal participant in the marriage.”
Inability to make choices within the marriage by the woman was violative of right to equality and right to life, he added.
Partners in a marriage should have respect for each other’s sexual autonomy, he said.
While very few people have been sentenced for adultery in recent years, the threat of charges has often been used in matrimonial disputes to put pressure on women, lawyers said.
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.
Shine’s lawyer, Kaleeswaram Raj, said that “there is no empirical evidence that decriminalising adultery threatens the sanctity of marriage”, adding around 80 countries do not consider extramarital affairs to be illegal.
“The judgment has unequivocally said the state has no business to interfere in aberrations in relations within a family,” Raj, a senior lawyer in the Supreme Court, told Reuters.
Raj said the law has been widely misused even if it has rarely ended up in a jail sentence.
Whenever there are matrimonial discords or claims for maintenance, belligerent husbands have used “malicious prosecution on the ground of adultery”, Raj said.
“In such cases, wives are helpless. They are out of the judicial process.
They cannot defend themselves and the stigma the prosecution casts on them will last forever and that in itself is a punishment as far as the women are concerned.”
Appearing for the government, Additional Solicitor General Pinky Anand had argued last month that adultery should remain a criminal offence to ensure the sanctity of marriage.
The court has said, however, that the judgment is not to be understood as a licence to have extramarital relations.
“Decriminalising adultery is not licensing adultery,” Justice Chandrachud observed while hearing the case.
Many Asian countries uphold adultery as a crime. In the United States, adultery is still considered a crime in some states.
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. —
Totally disagree with SC on adultery. They’ve given license to married couples 4 adulterous relationships. What’s sanctity of marriage then? Instead of making 497 gender neutral, criminalising it both for women and men they have decriminalised it totally! Anti women decision.
Swati Maliwal, Delhi Women’s Panel chief
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