Adultery no longer a criminal offence in India

Arturo Kim
September 28, 2018

The Supreme Court verdict declaring adultery a crime was welcomed by many Thursday but some experts sounded a note of caution, calling it anti-women and warning that it could give a license to people to have "illegitimate" relationships. "It can be a ground for a civil offence, a ground for divorce", Chief Justice of India Dipak Misra said in his judgment. The more than century-old law prescribed that any man who slept with a married woman without her husband's permission had committed adultery, a crime carrying a five-year prison term in the conservative country. Granting the husband additional power to prosecute his wife for adultery, by making the provision gender neutral, would be like rubbing salt to a festering wound.

Five more decades were to pass before the Supreme Court breathed life into her prophetic words. Misra met with the dissenting judges, who continued on the bench. The bench was unanimous in striking down Section 497, holding it as manifestly arbitrary, archaic and violative of the rights to equality and equal opportunity of women.

In 1954, the court upheld adultery as a crime arguing "it is commonly accepted that it is the man who is the seducer, and not the woman".

He joined India's highest court in 2011.

Chief Justice Misra, in an opinion for himself and Justice A.M. Khanwilkar, observed that Section 497 (adultery) of the Code "commands" married couples to remain loyal to each other. Since adultery is prohibited in Sharia or Islamic law, it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan, Pakistan, Bangladesh and Somalia. "Equality is the governing parameter", the court said. "Husband is not the master of the wife", the verdict added. The Centre had defended the law saying it's essential to preserve the institution of marriage. "What is the sanctity of marriage?" "Legal sovereignty of one sex over the other sex is wrong".

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In 2015, South Korea's Constitutional Court struck down an adultery law, sending shares in condom maker Unidus soaring. It also cited the "rising misuse of Section 498A of IPC", commonly known as the dowry law, to demonstrate how laws dealing with violence against women can be misused "for harassing the husbands".

It also did not allow women to file a complaint against an adulterous husband.

"Sexual autonomy of a woman can not be compromised, it's her right and there can not be any conditions", Justice DY Chandrachud said, asserting that the adultery law destroyed women's dignity and rights as she was treated as the property of her husband. In such a case, both the wife and her partner can be implicated and the partner can be charged with Section 306 read with Section 497 of IPC, the court held.

And although there is no information on actual convictions under the law, Kaleeswaram Raj, a lawyer for the petitioner, said the adultery law was "often misused" by husbands during matrimonial disputes such as divorce, or civil cases relating to wives receiving maintenance.

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