Adultery is no longer a crime in India though “without a shadow of doubt” can be grounds for divorce, the Supreme Court said today, junking a 158-year law that punished a man for an affair but not the woman, treating her as her husband’s property. “The husband is not the master of the wife,” said a five-judge constitution bench, unanimously sticking up for gender justice and calling out the Victorian adultery law – Section 497 of the Indian Penal Code – as arbitrary.
The law punished a man who has an affair with a woman “without the consent or connivance of” her husband, with five years in jail or fine or both. There was no punishment for the woman, who was seen as the victim.
“The wife can’t be treated as chattel and it’s time to say that husband is not the master of woman,” said the Chief Justice of India, Dipak Misra, adding, “there can’t be any social licence which destroys a home.”
The judges noted that most countries had abolished laws against adultery. Making adultery a crime is retrograde and would mean “punishing unhappy people”, said Justice Misra.
As he began reading out the verdict, the Chief Justice remarked that the beauty of the constitution is it includes “the I, me and you” and “any law which dents individual dignity and equity of women in a civilised society invites the wrath of the constitution.”
The top court, calling adultery a relic of the past, said Section 497 “denudes women from making choices”.
During arguments, the centre had defended the law saying adultery must remain a crime so that the sanctity of marriage can be protected. The top court had then questioned how the law preserved the sanctity of marriage when the extramarital affair didn’t invite punishment if the woman’s husband stood by her.
The Chief Justice said today that adultery might not be the cause of an unhappy marriage; it could be the result of one.
“In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy,” the judges felt.
The Supreme Court had upheld the legality of the crime in 1954, arguing that in adultery “it is commonly accepted that it is the man who is the seducer, and not the women”.
Last year, in response to the petition challenging the law, the court had said it treats a woman as her husband’s subordinate and time had come for society to realise that a woman is as equal to a man in every respect