Published On: Thu, Sep 27th, 2018

Adultery a ground for divorce, but not a crime: Supreme Court

New Delhi: Terming the two laws on adultery – Indian Penal Code (IPC) section 497 and 498 — as unconstitutional and a colonial rule, the Supreme Court on Thursday struck down the two sections. While decriminalising adultery, the court also struck down section 198 (2) of the Code of Criminal Procedure (CrPC) that allows only the husband of the woman to be considered as aggrieved under IPC sections 497 or 498.

The judges noted that most countries had abolished laws against adultery.

In their judgement, passed unanimously, the Supreme Court’s Constitution Bench headed by Chief Justice of India (CJI) Dipak Misra, comprising Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra observed that mere adultery cannot be a crime unless it attracts the scope of IPC’s Section 306 (Abetment of suicide). However, the court said that it can be a ground for divorce and a person will have civil remedies for it.

Section 497 stated that whoever has sexual intercourse with 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. The said man faces imprisonment of upto 5 years or fine or both. In such cases, the wife shall not be punishable as an abettor. CrPC 198 (2) specifies that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 (enticing, taking away, detaining with criminal intent a married woman who is someone’s else wife, from that man with the intention of having illicit intercourse with her).

The top court observed that parameters of Fundamental Rights should include the rights of women and that individual dignity is important in a sanctified society. The court felt that the law was against women who had no opportunity to defend themselves in a situation where they are falsely linked to a man on mere suspicion, since a woman cannot be made party to the case under 497 and had no locus standi.

Chief Justice of India (CJI) Dipak Misra while reading out the judgement said: “Equality is the governing principle of a system. A husband is not the master of his wife.”

The apex court said that legal subordination of one sex by another is wrong and considered views of Justice Rohinton Nariman on social progression of women in the Triple Talaq case while passing the judgement. In today’s case Justice Nariman observed that adultery violates of Article 14 of the Constitution and cannot be treated as an offence.

Justice Chandrachud said sexuality cannot be constituted as a physical attribute and it cannot be disassociated with human psychology.

“It is a monumental judgement. I am extremely happy with it. The people of India should also be happy,” petition’s lawyer Raj Kalliswaram told ANI. The lawyer explained that the court felt 497 treats woman as a chattel or a property of a man as there is no offence if there is consent of the man.

Reacting to the judgement, National Commission for Women (NCW) Chairperson, rekha Sharma said, “I welcome this judgement by Supreme Court. It was an outdated law which should have been removed long back. This is a law from British era. Although the British had done away with it long back, we were still stuck with it.”

In August this year, the top court had reserved the verdict in the case while observing: “The idea of imposition of Section 497 of the Indian Penal Code is not to enforce monogamy but to ensure to protect fidelity in the marriage, which is a promise made by both the parties while entering to a marriage.”

The Apex Court in December last 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.
This came after a businessman, Joseph Shine, filed a Public Interest Litigation (PIL) for Section 497 to be struck down on grounds of being unconstitutional, unjust, illegal and arbitrary. 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.

Highlights

Supreme Court strikes down IPC 497, IPC 498 decriminalising adultery

Supreme Court also struck down section 198 (2) of the Code of Criminal Procedure (CrPC) that allows only the husband of the woman to be considered as aggrieved under 497 or 498

The court felt 497 treats woman as a chattel or a property of a man as there is no offence if there is consent of the man

Businessman Joseph Shine filed a PIL for Section 497 to be struck down on grounds of being unconstitutional, unjust, illegal and arbitrary.

Government in its affidavit said IPC 497 was enacted to safeguard the sanctity of marriage, diluting it would be detrimental to matrimonial bond.

ANI

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