Adultery law in India

Section 497 of the Indian Penal Code was dealing with adultery. As per the Indian law, a woman cannot be punished for the offence of adultery. Only a man who has consensual sexual intercourse with the wife of another man without his consent can be punished under this offense in India. If someone "lives in adultery", the partner can file for divorce.[1] The law became defunct on 27 Sep 2018 by Supreme Court of India.[2] The Supreme Court called the law unconstitutional because it "treats a husband as the master."[3]

Section 497 read as follows:

A plain reading of the section gives rise to various conclusions:

One, that the married woman is not going to be regarded as an 'abettor' of the offence, which means that the woman will not be held liable for the act of adultery- only the man involved in the act will be held criminally liable under the section.

Second, the law does not apply in the case where an unmarried woman has intercourse with a married man.

Finally, the act is not regarded to be an offence or can be 'cured' of its criminality if the husband of the married woman consents to her having intercourse with another man.

In addition to this, Section 198 of the Code of Criminal Procedure gives only the husband the right to file a case against the man involved in the act of adultery. [5] Thus, this section merely reinforces the archaic thinking and sexual stereotype that a woman 'belongs' to a man and cannot have her own thoughts or opinions; this, even if she had voluntarily consented to the act of intercourse.

Petition to decriminalise Section 497

Because of this problematic interpretation, the Supreme Court in December 2017 decided to accept the public interest litigation in which it has been prayed that the Court strikes down or completely does away with Section 497 of the Indian Penal Code entirely.

It has been argued that the section violates two articles of the Constitution of India- Article 14 and Article 15.

Article 14 reads as follows: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

Article 15 reads as follows: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."[6]

On accepting this petition, the Court in its initial observations noted that this was not the first petition challenging the section - debates and cases on this have been in motion since 1954, making it important for the Court to decide on this question without much ado. It felt that laws are supposed to be gender neutral. However, in this case, it merely makes the woman a victim and thus "creates a dent on the individual independent identity of the woman."[7]

The arguments by the party opposing this decriminalisation- the Centre- states that the section "supports, safeguards and protects the institution of marriage... Stability of marriages is not an ideal to be scorned." It further argues that if the petition is allowed, then "adulterous relations will have more free play than now." As an alternative, it provides that the recommendations of the Committee on Reforms of Criminal Justice System (2003) be implemented. This committee recommended that the wording of the section be changed as follows: "Whoever has sexual intercourse with the spouse of any other person is guilty of adultery..." so as to tackle the problem of gender bias which arises from the reading of the current section.[8]

Judgement

The Court began to hear the arguments on this petition on 1 August 2018. The Court said that if the party challenging this section can simply prove that it violates Article 14 of the Constitution of India, then the section will be struck down.[9]

A five-judge Constitution bench of the Supreme Court on 27 September 2018 unanimously ruled to scrap Section 497, which deals with adultery, of the Indian Penal Code (IPC).

While reading the judgment, Chief Justice Dipak Misra said, "it (adultery) cannot be a criminal offence," however it can be a ground for civil issues like divorce.[10][11]

References

  1. ↑ "Adultery Law in India". Legal Service India. Retrieved 10 June 2016.
  2. ↑ Bureau, ABP News. "Supreme Court quashes Section 497, says 'Adultery not a criminal offence'". Retrieved 2018-09-27.
  3. ↑ "Women Are Not 'Chattel,' Says India's Supreme Court In Striking Down Adultery Law". NPR.org. Retrieved 2018-09-27.
  4. ↑ "Indian Penal Code". Section 497, Act of 1860 (PDF).
  5. ↑ "The law on adultery is asymmetric". hindustantimes.com. 2018-05-17. Retrieved 2018-09-14.
  6. ↑ "The Constitution of India" (PDF).
  7. ↑ "Statutory Immunity To Women From Prosecution For adultery - SC Admits Writ Petition Challenging The Vires Of Section 497IPC [Read Petition & Order] | Live Law". Live Law. 2017-12-08. Retrieved 2018-09-14.
  8. ↑ "Counter affidavit Adultery.pdf". Google Docs. Retrieved 2018-09-14.
  9. ↑ "Indian Supreme Court Begins Hearing Petitions Seeking Decriminalization Of Adultery [Section 497 IPC] | Live Law". Live Law. 2018-08-01. Retrieved 2018-09-14.
  10. ↑ "Adultery no longer a criminal offence in India". BBC News. Retrieved 27 September 2018.
  11. ↑ "‘Husband is not the master’: 12 key points of SC verdict on Adultery Law", 'DBPOST. 27 September 2018. Archived from the original on 27 September 2018. Retrieved on 27 September 2018.


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