The five-judge bench of the Supreme Court unanimously struck down Section 147 of the Indian Penal Code dealing with adultery declaring it unconstitutional and a violation of Articles 14 (right to equality) and 21 (right to life) of the Indian Constitution.
The SC also declared Section 198(1) and 198(2) of the Code of Criminal Procedure unconstitutional. These sections allow only the husband to file a complaint against whom the wife has committed adultery. The law does not confer any right on women to prosecute the adulterous husband, or the woman with whom the husband has indulged in sexual intercourse.
“Adultery can be ground for civil issues including dissolution of marriage, but it cannot be a criminal offence. Adultery dents the individuality of women,” noted CJI Misra and Justice Khanwilkar.
CJI Dipak Misra said, “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say a husband is not the master of the wife.”
Adultery is no more a crime, Supreme Court strikes down a 158-year old law and rules that “husband is not the master” but it could still be a ground for civil disputes like dissolution of a marriage. Details at 9 pm on India Biz Hour | @ShereenBhan pic.twitter.com/bnaDmlZ3kE
— CNBC-TV18 (@CNBCTV18Live) September 27, 2018
CJI Misra on decriminalising adultery said, “Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage. Mere adultery can’t be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the IPC. Thinking of adultery as a criminal offence is a retrograde step.”
Justice Nariman added that the penal provision was violative of the rights to equality and equal opportunity to women.
Justice Chandrachud while referring to injustice to women said, “Law deprives married women the agency of consent. A woman loses her voice, autonomy after entering marriage and manifest arbitrariness is writ large in Section 497. Section 497 offends the sexual freedom of women.”
The Centre defended the archaic law by stating that continuation of the adultery law is important as it ensures the sanctity of the marriage and is for public good.
The judgement came on a petition by businessman Joseph Shine challenging IPC Section 497 calling the law as discriminatory. The petition argued that adultery law was biased in the idea of a women as a property of men.