Adultery is not a crime, SC scraps 158-year-old law

The Supreme Court unanimously struck down Section 497 of the Indian Penal Code that makes adultery a punishable offense 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).

Important observations made by the Supreme Court:

  • Adultery might not cause an unhappy marriage, but it could be the result of an unhappy marriage.
  • In the case of adultery, the criminal law expects people to be loyal which is a command which gets into the realm of privacy.
  • Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offense.
  • Any provision treating a woman with inequality is not Constitutional.
  • Mere adultery can’t be a crime unless it attracts the scope of Section 306 (abatement to suicide) of the IPC.

Why strike it down?

Section 497 perpetuates subordinate status of women, denies dignity, sexual autonomy, and is based on gender stereotypes. Section 497 based on women as chattel, seeks to control the sexuality of a woman, hits the autonomy and dignity of a woman. Besides, Section 497 perpetrates subordinate nature of woman in a marriage.

Therefore, it should be struck down for violation of Articles 14, 21.

Here are the problems with Section 497 which the petitioners wanted to be addressed:

  • The petitioners want the adultery law to be made gender neutral. This is because the law calls for the man to be punished in case of adultery, but no action is suggested for the woman.
  • As per Section 497, a woman whose husband has had sexual intercourse with another woman cannot file a complaint because the law makes no such provision for her.
  • Moreover, the adultery law in IPC reduces women to an object because no consent of the married woman is required for a man to have sexual intercourse with her. As per Section 497, if the woman’s husband agrees, the act is not a crime. This is the reason many have called this law an anti-women law.

What is Section 497?

Section 497 of the 158-year-old IPC says, “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 offense 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.”

Past Supreme Court judgments on adultery:

  • The adultery law had come up in court thrice in the past — in 1954, in 1985, and in 1988.
  • In 1954, the SC rejected that Section 497 violated the right to equality.
  • In 1985, it said that women didn’t need to be included in the law as a party which can make complaints.
  • In 1988, the Supreme Court said that the adultery law was a “shield rather than a sword”.
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