Adultery – not a crime now

Recently the Supreme Court has unanimously struck down Section 497 of the Indian Penal Code that makes adultery a punishable offence for men. In four separate but concurring judgments, the five-judge bench of the Supreme Court said the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).

The apex court also declared Section 198(1) and 198(2) of the CrPC, which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional.

What is Adultery? 

Adultery  is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Though what sexual activities constitute adultery varies, as well as the social, religious, and legal consequences, the concept exists in many cultures and is similar in Christianity, Islam, and Judaism. A single act of sexual intercourse is generally sufficient to constitute adultery, and a more long-term sexual relationship is sometimes referred to as an affair.

Viewpoint of the court

1 . Adultery can be ground for any civil wrong. There can’t be any social license that destroys the matrimonial home, but adultery should not be a criminal offence.

2 . A wife is not a chattel of the husband. Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say that a husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong.

3 . Section 497 also deprived a woman of her privacy.

4 . Society has two sets of standards for judging the morality of men and women. The law is gender biased, gives unequal voice to partners.

About the PIL

The petition seeking the repeal of Section 497 IPC was filed by a non-resident Keralite — Joseph Shine — who termed the 158-year-old law enacted by the Britishers as “unjust, illegal and arbitrary and violative of citizens’ fundamental rights”. Questioning the gender bias in the provision drafted by Lord Macaulay in 1860, Shine has also challenged Section 198(2) of the CrPC.

According to the petitioner when the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability.

Centre’s  viewpoint

1 . In its affidavit, the Centre has contended that adultery should remain an offence, saying Section 497 was enacted so as to safeguard the sanctity of marriage, adultery should remain an offence.

2 . Diluting adultery law will impact the sanctity of marriages.

3 . Making adultery legal will hurt marriage bonds .

What is Section 497 of IPC?

According to Section 497 of IPC, “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”. Adultery presently entails imprisonment for a term which may extend up to five years, or fine, or both.

Earlier judgments

On January 5 , 2018, a three-judge bench of the Supreme Court, headed by Chief Justice Dipak Misra, referred the PIL to a larger constitutional bench. In three earlier judgments in 1954, 1985 and in 1988, the court had upheld the provision.