What the lone woman judge on the SC Bench said about adultery

Saul Bowman
September 28, 2018

Adultery will, however, be considered valid grounds for divorce.

Misra said that the legal sovereignty of one sex over another is wrong and read out further observations that seemed women-friendly.

Prior to the verdict, the offence entailed a maximum punishment of five years, or fine, or both.

However, in its ruling, the Supreme Court dismissed concerns that the abolition of the law would result in higher rates of infidelity.

Justice Malhotra, the lone woman judge on the bench, said Section 497 is clear violation of fundamental rights granted in the Constitution and there is no justification for continuation of the provision. The law was based on the concept that a woman loses her individuality once she is married, he said, adding, "adultery is a relic of past".

The law gave the husband the right to bring charges against his wife's lover but failed to grant a wife power to do the same.

Convictions for adultery are very rare because of the social stigma, and mostly families resolve matters among themselves, Supreme Court lawyer Utsav Bains told AFP.

From now on, the only remedy available to a man or woman who finds his partner to be in an adulterous relationship would be to go for divorce.

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

"It disregards the sexual autonomy which every woman possesses and denies agency to a woman in a matrimonial tie", said Supreme Court Justice D.Y. Chandrachud. He said Section 497 affects the right to life of a woman under Article 21 of the Constitution.

"Sunlight is the best disinfectant", said the Supreme Court bench headed by Chief Justice Dipak Misra and ordered live-streaming and video recording of the court proceedings yesterday, September 26.

Section 497 treats a married woman as the commodity of her husband, the Bench held.

India's Supreme Court has ruled a century-old adultery law is unconstitutional and discriminatory against women.

As an intervener in this matter, I prayed for making section 497 of Indian Penal Code, 1860 and section 198 of Code of Criminal Procedure, 1973 as gender neutral and not unconstitutional.

The legislature has imposed a condition on the sexuality of women by making adultery as an offence, he said, adding that section 497 is a denial of the substance of equality.

"A woman can not be asked to think as a man or as how the society desires". He said Section 497 is held to be unconstitutional as adultery is manifestly arbitrary. "We are not questioning the legislature's competence to make laws but where is the "collective good" in Section 497 of IPC?"

Should women be treated as abettors and not victims for the crime of adultery?

Adultery is prohibited in Sharia or Islamic Law, so it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan Pakistan, Bangladesh and Somalia.

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