The Supreme Court has once again given a landmark judgement today by scrapping the 150 year old adultery law and terming it as unconstitutional. The five bench court led by Chief Justice of India Dipak Misra clearly pointed out that equality is the need of the hour; therefore a law such as this which considers the husband as the master cannot be allowed to exist. CJI Dipak Misra said on behalf of the five member panel of the Supreme Court, “Adultery cannot and should not be a crime. It can be a ground for a civil offence, a ground for divorce.” The CJI spoke for himself and Justice A M Khanwilkar while Justice R F Nariman added that this law had been abolished in many other countries as a criminal offence too. Justice Nariman also added that the adultery law was against right to equality and life. While Justice D Y Chandrachud used the occasion to speak against patriarchy and about the urgent need to strike down gender inequality in today’s society.
CJI Dipak Misra stated that the subordination of any sex over the other is as unconstitutional as it gets and added that mere adultery cannot be considered a crime unless some other act which is criminal in nature is added to it. It should be duly noted that even after scrapping the Section 497 which dealt with adultery, adultery still remains a ground for a civil offence and a divorce but it is the criminal nature of the act which has been scrapped. The petition against Section 497 was filed by Joseph Shine which sought the dropping of adultery as a criminal offence under the statute.
Section 497 of the IPC which deals with adultery is a pre-independence era provision which treats married woman as her husband’s “subordinate” and therefore violates the constitutional concepts of gender equality. Section 497 states: “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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”
Not just this but the law was also unduly helping the women, a married woman even after being found guilty of entering into an extra marital affair could not be punished under the Section 497. On the other hand the man whom she was entering into an extra marital affair with would be held guilty and punished with up to five years of prison sentence or fine or both. The SC had termed the penal provisions under Section 497 as archaic and had shown the intent to reconsider its past decisions and views from 1954 onwards. Treating women as “subordinates” of their husbands gives them an extra edge over the males in this case, a woman even if found indulging in adultery cannot be punished “as an abettor” according to the present law. This lopsided law cannot and should not work in today’s day and age. Accountability of maintaining sanctity of marriage should fall on both the gender equally. The Supreme Court decision should be welcomed and appreciated for the intent with which it is delivered which is to empower women and to remove the undue blame on men.