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Adultery : Supreme Court Terms Existing Law Unconstitutional, No Longer A Criminal Offence

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The  Supreme Court in another significant verdict has  now done away with adultery law pertaining to Section 497 of the Indian Penal Code (IPC) and Section 198 of CrPC, as unconstitutional through a majority judgement.

A five-judge Constitution bench of the Supreme Court has given its judgment on the validity of section 497 of the Indian Penal Code (IPC), which criminalises adultery.

The bench also comprises justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, while the Centre is represented by Additional Solicitor General Pinky Anand,

The Chief Justice of India (CJI) Dipak Misra  while reading out the verdict on the petition challenging the validity of Section 497 (Adultery) of IPC had these important points :

— In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy.

— Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage.

— Equality is the governing principle of a system. Husband is not the master of the wife.

— Parameters of fundamental rights should include rights of women. Individual dignity important in a sanctified society.

— System can’t treat women unequally. Women can’t be asked to think what a society desires.

Section 497 of the IPC, Drafted in 1860, criminalises adultery with up to five years imprisonment, while defining the perpetrator as whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be 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

CJI Dipak Misra says the magnificent beauty of the democracy is I, you and we. Section 497 is manifestly arbitrary, offends dignity of women.

The CJI is reading out the verdict on behalf of himself and Justice AM Khanwilkar. He said, “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.”

The CJI states he has relied heavily on Triple Talaq judgment of Justice Rohinton Nariman.

The CJI says mere adultery cannot be a crime, unless something else is added. The Chief Justice says a law which affects equality of women is manifestly arbitrary.

Justice Chandrachud’s judgment: A woman loses her voice, autonomy after entering marriage and manifest arbitrariness is writ large in Section 497.

Section 497 offends sexual freedom of women. Law deprives married women the agency of consent. and destroys and deprives women of dignity.

CJI and Justice Khanwilkar: We declare Sect 497 IPC and Sec 198 CrPC dealing with prosecution as unconstitutional.

Rohinton Nariman in his  judgement stated :

— Ancient notions of man being perpetrator and woman being victim no longer holds good.

— Section 497 is an archaic law, manifestly arbitrary.

Justice Indu Malhotra also concurs with the other four judges. Making it an unanimous verdict.

Justice Indu Malhotra says Section 497 is clear violation of fundamental rights granted in Constitution. Adultery could be a moral wrong towards spouse and family but question is whether it should be a criminal offence? The answer, is ‘no’ and she adds that there is no justification for continuation of Section 497 of the IPC.

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