New Delhi: In yet another landmark judgment, the Supreme Court on Thursday scrapped the 158-year-old adultery law.
Adultery, as defined legally, is a consensual physical correlation between two individuals who are not married to each other and either or both are married to someone else.
For years, Justice Dipak Misra said, Section 497 outlawed the Right to Equality. “Equality is the need of the hour. Time has come when the husband should not be considered the master,” he said.
Section 497 stated, “Whoever has sexual intercourse with a person who is and whom he knows 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 be the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”
In simple words, adultery is defined as a person having sex with a man’s wife without taking prior consent from the husband. The law only applies to men – women can neither be charged with adultery, nor can they be the complainant.
Activists had cried foul, saying the law treated women as property with no agency of their own to speak of.
Social activist Aabha Singh said, the scrapped law gives equal rights to both married partners but it might affect the traditional discourse of marriages in India. “This might also affect children’s psychology if the partners are themselves not sure who are they with exactly,” she added.
Judges said the partners, if and when infidelity case arises, can file for a divorce but there will be no punishment as was the law. Justice D Y Chandrachud mentioned Section 497 was destructive of women’s dignity and self-respect as it treated a woman as a chattel of the husband.
The Centre had, however, favoured retention of penal law on adultery saying this law is important to keep the marriage tradition alive. It causes mental and physical injury to the spouse, children and the family, it had added.
Justice Indu Malhotra, the lone woman judge in the constitution bench, also termed Section 497 as a moral wrong.
Justice Chandrachud said, “Women after marriage does not pledge her sexual anatomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage cannot be curbed.” In the most private zone, he added, a choice is important and sexuality cannot be dissected from desire.
A five-judge constitution bench headed by Chief Justice Dipak Misra, included Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. The hearing commenced on August 1 and went on for six days.
CJI and Justice Khanwilkar also mentioned that if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then if the evidence is produced, it could be treated as an abetment to suicide.
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