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‘Adultery valid ground for divorce, not criminal prosecution’: SC strikes down the arbitrary Sec 497

In a landmark judgement, a five-judge bench of Supreme Court of India has declared section 497 of the Indian Penal Code unconstitutional, calling it “manifestly arbitrary”.

The section reads as follows:

Adultery.—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.

Section 497 is widely considered a lopsided law, as it is gender biased. Under this law, on one hand, only married men can be prosecuted for adultery, not a married woman. On the other hand, this section applies only if a man has sex with a married woman without the consent of that woman’s husband. This implies that the husband has ownership over his woman who can permit her to have a physical relationship with another man.

The SC judgement says that Section 497 IPC affects the right to life of a woman under Article 21 of the constitution of India. Court has noted that adultery can be ground for divorce but it can’t be a criminal offence. Delivering the verdict, the court said that Adultery dents the individuality of women, and husband is not the master of his wife. Court also noted that adultery is not a criminal offence in many countries, and many countries have abolished laws which made it a crime.

Reading out the judgment, Chief Justice Misra said, “Any provision of law affecting individual dignity and equality of women invites the wrath of not constitution. It’s time to say that the husband is not the master of the wife. Legal sovereignty of one sex over other sex is wrong”.

The court noted that the adultery law applies only if a man has relation outside marriage with another married woman, it does not apply if the relationship with an unmarried woman. The court asked why the sanctity of a marriage is not affected if an unmarried is involved, calling it arbitrary.

The judgement says that adultery is a matter of privacy and it is not a criminal offence. Court has said that section 497 of IPC violates Articles 14 and 15 of the constitution and therefore this law is unconstitutional. According to the court, section 497 deprives a woman of agency and autonomy and dignity, and the law is actually a codified rule of patriarchy, which denied married women autonomy.

Along with Section 497, the apex court has also struck down the section 198(2) of the Criminal Procedure Code, which dealt with adultery.

Court has clarified that adultery will be a valid ground for divorce. And if an aggrieved spouse commits suicide as a result of adultery, the adulterous partner will be prosecuted for abetment of suicide under Section 306 of the IPC.

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Staff reporter at OpIndia

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