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28 September 2018, 12:30 | Tara Lloyd
India's Supreme Court rules adultery not a crime any more
The Constitution bench, also comprising Justices RF Nariman, DY Chandrachud and Indu Malhotra, pronounced four sets of concurring verdicts to declare the penal provision on adultery and section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional.
Until Thursday, Section 497 of the Indian Penal Code gave a maximum sentence of five years to anyone who had sex with a married woman, "without the consent or connivance" of her husband. "In such case the wife shall not be punishable as an abettor", the section says.
The Supreme Court bench held that while adultery should not be a criminal offence it would continue to be treated as civil wrong, and can be ground for dissolution of marriage.
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. The Victorian law had also faced flak for treating a woman as the property of a man. Why should the woman take more load than the man? "In a way, you have given an open general license to the people of this country to be in marriages but at the same time have illegitimate relationships", she said. The Allahabad High Court had said that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty. "Mere adultery can't be a crime, unless it attracts the scope of Section 306 (abetment to suicide) of the IPC", said CJI Misra. "Otherwise, the children from such marriages will suffer", the Centre's counsel had told the SC in August 2017, defending the IPC provision that does not penalise a man for forcibly having sex with his wife aged between 15 and 17. He, therefore, struck down the provisions criminalizing Adultery as violative of Articles 14 and 21 of the Constitution.
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However, India's ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence.
An unmarried woman, on the other hand, can't be prosecuted for adultery.
With the supreme court striking the section 497 of the IPC, the announcement has been receiving a mixed reaction. In today's case Justice Nariman observed that adultery violates of Article 14 of the Constitution and can not be treated as an offence.
The judges deemed the law unconstitutional after Indian businessman Joseph Shine filed a petition a year ago challenging Section 497.
Earlier only a Christian man could file for divorce on the grounds of adultery.
"A woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage can not be curbed", Justice DY Chandrachud observed.
In 2017, in a major verdict, the Supreme Court ruled that the right to privacy is a fundamental right.
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