Supreme Court says adultery can be a ground for divorce but not a crime.
New Delhi: The Supreme Court Thursday struck down Section 497 of the Indian Penal Code, a 150-year-old law, that criminalises adultery, calling it “unconstitutional” and “absolutely manifestly arbitrary”.
The five-judge Constitution bench led by Chief Justice of India Dipak Misra held that adultery can be a ground for divorce but cannot be a crime and cited examples from other countries such as China and Japan where adultery is not a crime.
“Any system or law which affects individual dignity of women in a civilised society invites the wrath of the Constitution,” said CJI Misra.
“Legal sovereignty of one sex over another is wrong,” he said. “Equality is the governing principle of a system. Husband is not the master of the wife.”
Under Section 497 of IPC, a married man could be punished for having sex with the wife of another man but the act would be exempt from punishment if it was done with the consent of the woman’s husband.
“497 perpetrates subordinate nature of woman in a marriage,” said Justice D.Y. Chandrachud.
The verdict came on a plea filed by Joseph Shine, an Indian citizen working abroad, who challenged the constitutional validity of Section 497 that penalised only a husband for committing adultery.
In January this year, the top court had observed the law needed a relook, and had referred the issue to a Constitution bench.
“The provision seems quite archaic, especially when there is societal progress. Thus analysed, we think it appropriate that the earlier judgments require to be reconsidered with regard to social progress, shift in perception, gender equality and gender sensitivity,” CJI Misra had said.
The bench comprising CJI Misra and justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra started hearing the matter on 1 August, and concluded a week later.
The Centre tried to defend the retention of the law, falling on the preservation of “sanctity of marriage”. But the top court observed: “Where is the sanctity of marriage when the husband can consent for his wife to indulge in sexual intercourse with another man?…We are not questioning the legislature’s competence to make laws but where is the ‘collective good’ in Section 497 of IPC?”
What the case is
Petitioner Shine, an Indian citizen working in Italy, filed a plea on the grounds that Section 497 discriminates against men and violates their fundamental rights. “When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability,” the plea reads.
Shine had questioned the immunity accorded to women if they commit the offence of adultery. Advocate Kaleeswaram Raj, representing Shine, relied on various top court judgments as precedents to prove his case. Raj submitted that in the 2012 judgment in W. Kalyani v. State, the apex court had observed that provisions of Section 497 had come under criticism for gender bias, insofar that only men could be prosecuted for adultery, while women were immune.
What the Centre said
Representing the Centre, additional solicitor general Pinky Anand said marriages in India were not an exclusive affair; they involved families of both the parties and the society at large, hence the State becomes involved.
“The provisions of law under challenge in the present writ have been specifically created by the legislature in its wisdom, to protect and safeguard the sanctity of marriage, keeping in mind the unique structure and culture of the Indian society,” the Centre’s affidavit had said.
However, doubting the object of Section 497 to safeguard the sanctity of marriage, Chandrachud had said: “Fidelity does not apply to a married man if he engages in extra-marital sex with a single woman? You exact fidelity from a woman but not from a man?”