How Legal Experts Reacted to SC’s Judgment on Adultery

Geraldine Edwards
September 28, 2018

The Supreme Court in India has struck down an "unconstitutional" colonial-era law making adultery a criminal offence, saying it makes women "chattel" of their husbands.

The Apex Court in December past year had issued a notice to the Centre asking why a married woman who is equally liable for the offence of adultery with a married man, who is not her husband, be not punished along with the man.

The CJI, who wrote the judgment for himself and Justice AM Khanwilkar, said the section was "manifestly arbitrary", archaic and violative of the rights to equality and equal opportunity to women and struck it down as unconstitutional.

The judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

He went on to say that any system or law which affects the individual dignity of women in a civilised society invites the wrath of the Constitution.

Shine's lawyer, Kaleeswaram Raj, said "there is no empirical evidence that decriminalizing adultery threatens the sanctity of marriage". While some called it empowering, many said it would make their life worse. Woman has sexual autonomy within marriage.

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In simple words, adultery is defined as a person having sex with a man's wife without taking prior consent from the husband. It does not penalize the woman, nor any married man who has sex with an unmarried woman.

"Married women are not a special case for the goal of prosecution for adultery".

Section 497 was seen as contradictory to Article 14 and 21 of the Indian Constitution. The Section created an arbitrary classification between an aggrieved husband vis-à-vis an aggrieved wife. Anything where consent is violated, whether of a man or a woman, should be punishable. "A law that perpetuates such patriarchy has no place in the constitution", she said, adding that adultery is a valid ground for divorce, but can not be made a criminal offence. The petitioners want the adultery law to be gender-neutral, which now punishes only the man, and not the woman.

In his historic judgment of August past year declaring privacy as a fundamental right, he had termed as "seriously flawed" the 1976 verdict in the famous ADM Jabalpur case in which his father was part of the majority judgment by a five-judge constitution bench.

"Protecting marriage is the responsibility of the couple involved".

The five petitioners who challenged the law said it was discriminatory and led to gay people living in fear of being harassed and prosecuted by police.

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"He shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or with both".

The law - known as Section 377 - held that intercourse between members of the same sex was against the order of nature.

"Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm".

But in their ruling on Thursday, the judges said this narrative no longer applied, noting also that Britain did away with its own laws penalising adultery long ago.

Misra is stepping down as chief justice next week when he turns 65, the mandatory retirement age for Supreme Court judges. "Stability of marriages is not an ideal to be scorned".

"Dichotomy is manifest (in Section 497)" as "husband can only have control over his emotion and cannot ask wife to do this or that", it had told the Centre's counsel, Pinki Anand.

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