India's Supreme Court rules adultery not a crime any more

India's Supreme Court rules adultery not a crime any more

Kerry Wise
September 28, 2018

The judges noted that most countries had abolished laws against adultery. There can't be any social licence which destroys a home, the chief justice said.

Chief Justice of India Dipak Misra, who read out the judgment on behalf of himself and Justice Khanwilkar, said: "It's time to say the husband is not the master".

Adultery is a crime in many parts of the world, particularly in countries with Islamic law, such as Iran and Saudi Arabia, but it is also technically illegal in 20 USA states, though rarely enforced. "Mere adultery can't be a crime, unless it attracts the scope of Section 306 (abetment to suicide) of the IPC", said CJI Misra. "This is like criminalising the triple talaq law".

However, adultery is the only provision of IPC in which men and women are treated differently, for one thing.

The verdict came on a plea filed by Joseph Shine, an Indian citizen working overseas, who challenged the constitutional validity of Section 497 that penalised only a husband for committing adultery.

The part of Section 198 of the Code of Criminal Procedure which deals with adultery was also declared unconstitutional.

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Under the Section 497 of the IPC, adultery (a man having a sexual relationship with another man's wife) is a punishable crime for men with up to 5 years of jail. However, the Centre, in an affidavit filed in the Supreme Court in July, in response to Shine's petition, said that Section 497 of the Indian Penal Code was enacted to safeguard the sanctity of marriage and diluting it would be detrimental to matrimonial bond. They have done that but now the men will just abandon us or not give us talaq.

An unmarried woman, on the other hand, can't be prosecuted for adultery. He, therefore, struck down the provisions criminalizing Adultery as violative of Articles 14 and 21 of the Constitution. The petitioners want the adultery law to be gender-neutral, which now punishes only the man, and not the woman.

In his 45-page petition, Shine liberally quotes from American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary General Kofi Annan on gender equality and the rights of women.

The Supreme Court has held that the adultery law is a relic of the past.

"It is a big victory for women's status and position within marriage and within families" said Jayna Kothari, an attorney and the executive director of the Center for Law and Policy Research in Bangalore.

"By today decriminalising adultery completely I think this is something which is just going to add to the pain of women in our country", she said. In fact, in its first judgement in 1954 it had stated that women could only be a "victim" of adultery and not a perpetrator in the "crime". Instead, the man was considered to be a seducer. "What used to happen is husbands hired professional detectives to check on wives and then threaten or begin prosecution".