Adultery no longer a Crime in India — Read the Judgment

Indian Supreme Court strikes down Section 497 IPC

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by Bar and Bench-Sep 27, 2018

Sep 28, 2018

( September 27, 2018, New Delhi, Sri Lanka Guardian) A Constitution Bench of the Supreme Court today unanimously struck down Section 497 of Indian Penal Code (IPC), which penalises adultery.

The judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The Bench wrote four separate but concurring judgments. CJI Misra wrote on behalf of himself and Justice Khanwilkar. Justices Nariman, Chandrachud and Malhotra wrote a judgment each.

“Any provision treating woman with inequality is not Constitutional”, CJI Dipak Misra said, as he began pronouncing his judgment.

He went on to strike down Section 497 on grounds of being manifestly arbitrary and therefore violate of Article 14 of the Constitution of India.

He further held that Adultery can be ground for civil issues including dissolution of marriage, but it cannot be a criminal offence.

Justice Nariman concurred with CJI Misra and Justice Khanwilkar J, holding Section 497 violative of Articles 14 and 15 of the Constitution.

“Ancient notions of man being perpetrator and woman being victim no longer holds good”, he held.

Justice Chandrachud was the next to concur with the judgment, stating that Section 497 is based on viewing women as chattel, seeks to control sexuality of woman, and hits the autonomy and dignity of women. He, therefore, struck down the provisions criminalizing Adultery as violative of Articles 14 and 21 of the Constitution.

Finally, Justice Malhotra sealed the fate of the provision, questioning the need to make Adultery a criminal offence. The Bench thus unanimously struck down Section 497 as being ultra vires various provisions of the Constitution.

The petition seeking the repeal of Section 497 IPC had initially come up before the Supreme Court in December 2017. It was filed by one Joseph Shine.  Advocates Kaleeswaram Raj and Suvidutt MS had appeared for Shine. Additional Solicitor General Pinky Anand represented the Central government.

Section 497 of IPC criminalises the offence of adultery, but only a man is liable to be punished for the offence. Further, if the husband of the woman gives his consent for sexual intercourse with another man, no offence lies.

Section 497 of the Indian Penal Code, 1860

The law identifies the married man as the victim. Further, it does not give any right to a woman to prosecute her husband should he be in an adulterous relationship. In this backdrop, the petition prompted the Court  to revisit whether the Section was liable to be struck down, inter alia, for being violative of gender equality.

In January this year, a three-Judge bench led by Chief Justice of India Dipak Misra referred the case to a Constitution Bench. While doing so, an observation was also made that the law was archaic and looked at women as objects or ‘chattel’ owned by their husbands. These concepts needed to be revisited in a progressive society, the Court had opined.

The three-day hearing before the Constitution Bench commenced on August 1. Before this Bench, the petitioners submitted that while adultery should remain as a valid ground to seek divorce, it should cease to be a criminal offence, considering the act is consensual in nature.

The position of the Government of India was made clear in July this year, when it filed its counter-affidavit in the case. The Centre was of the view that adultery should be retained as an offence to protect the “sanctity of marriage” in India.

The final hearing in the case took place on August 8, on which date the Court reserved its judgment.

Read the Judgment:

Download (PDF, Unknown)