Supreme Court: Adultery Not A Crime, “Husband Not Master of Wife”

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Deepak Mishra, Chief Justice of India said adultery can’t be a criminal offence and the adultery law is also violative of privacy right to some extent. A five-judge Constitution bench of the Supreme Court is pronouncing its judgment on the validity of section 497 of the Indian Penal Code (IPC), which criminalizes adultery. Junked a 158-year law that punished a man for an affair but not the woman, treating her as her husband’s property.

Drafted in 1860, the colonial era law criminalizes adultery with up to five years imprisonment, while defining the perpetrator as “whoever 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.” Importantly, it adds, “In such case the wife shall not be punishable as an abettor.”

The judges noted that most countries had abolished laws against adultery. Making adultery a crime is retrograde and would mean “punishing unhappy people”. As the Chief Justice began reading out the verdict, he remarked that the beauty of the constitution is it includes “the I, me and you” and “any law which dents individual dignity and equity of women in a civilized society invites the wrath of the constitution.”

The plea 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.”

A key issue raised during the trial is as to whether a sexual act between two consenting adults can be treated as a criminal offence, even if it is not along the lines of conventional morality. Sending a person to prison for five years for adultery, the Chief Justice of India Dipak Mishra had orally observed in August, didn’t appeal to common sense. He added that adultery had a civil remedy: divorce.

The Chief Justice said today that adultery might not be the cause of an unhappy marriage; it could be the result of one. Adultery is the second offence to be decriminalized by the top court in 20 days. Early this month, the court had decriminalized gay sex between consenting adults.