Law on Adultery :past and present

In a historic decision , a five-member constitution bench of the Supreme Court quashed the 150-year-old colonial ‘adultery’ or ‘adultery’ statute.

Chief Justice Justice Deepak Mishra, while announcing the PIL filed in the Supreme Court by Joseph Shine, an Indian diaspora living in Italy, said that any law that negatively refers to ‘dignity of man’ and ‘equal treatment of women’ He is against the Constitution.

In this context, declaring Section 497 of the Indian Penal Code (IPC) as arbitrary and irrelevant, Justice Mishra added, “Now is the time to say that husband is not the owner of the wife in marriage. Either man or woman The legal sovereignty of any one is completely wrong.

“ Justice Rohington Nariman, Justice AM Khanwilkar, Justice Chandrachud and Justice Indu Malhotra, including Justice Mishra, in their separate written judgments have abrogated the legal validity of adultry by one vote. At the same time, the Constitution Bench also added that adultery is still a strong basis of divorce, but not criminal offense.

What was the old adultry law?

This law, made in 1860, is about 150 years old. Section 497 of the IPC defines it as saying – If a man makes a physical relationship with another married woman with his consent, then the husband can be sued in this case on the complaint of the husband by accusing him of adultery. Was On doing this, the man also had the provision of five years imprisonment and fine or both punishment. However, there was a trick in this law that if a married man makes physical relations with a virgin or a widowed woman, then he was not considered guilty under adulteration.

Also, the law also said that ‘women never initiate or initiate a relationship after marriage’. Based on this logic, it did not consider women guilty of adulteration.

Joseph Shine, in his public interest litigation, called Section 497 as an act of discrimination and acts against women.

One of the many loopholes present in this law was that the role of women was limited to consenting to sex only. Sex by disagreement falls into the category of rape. But the question was that when a woman is a participant in giving consent and forming a relationship, then why not in punishment?

Government side

In a written reply to the Supreme Court in August 2018, the Central Government had said that in order to save the ‘institution of marriage’, the law against adultry was necessary.

The government also believed that any attempt to repeal this law would hurt the ‘purity of family and marriage’ as well as Indian values ​​in the Indian context.

Revolutionary Decision

In a special conversation with BBC, Kakleshwaram Raj of Joseph Shine described this decision as revolutionary, saying that this decision not only defines marriage and gender relations in India in a new way, but also a new relationship between state and citizen. Keeps us in the light.

Welcoming the decision, he said, “We are all very happy with this decision. The Constitution Bench not only listened to the issue of equality of men and women in law but also rejected the whole idea of ​​adultery or adultery from a criminal point of view.” The court also said that what happens between two adults between the four walls is their personal matter. Marriage is also a private matter and the state should not enter into a quarrel with 2 people.

It is also necessary to mention here that according to this decision, if one of the spouses commits suicide or attempts to commit suicide due to adultery, then a criminal case of ‘abetment to suicide’ can be made against the other partner.

Judge's Statements

The Constitution Bench said in its decision that Section 497 of the IPC violates Article 21 and Article 14 of the Constitution. In this way, the law of adultry was denying the human dignity of the citizen and the right to equality in society. So this law is against the basic spirit of the constitution and it must be abolished.

In his decision, Justice Nariman commented on women’s participation in sex, stating, “The idea that men always take the initiative of adultery and women always suffer – is too old. It is about women’s will and their dignity.” Is against and it smells of patriarchy. “

In the end, Justice Chandrachud made the concluding remarks in the judgment that the autonomy of a person is the root of the dignified life of any citizen. Denying the sex selection of women is a sign of a patriarchal society. “