Adultery is no longer a crime: Supreme Court deems Section 497 to be unconstitutional
- The Supreme Court of
Indiapassed a verdict stating that adultery can be grounds to file for divorce but it’s no longer a criminal offence.
- The 158-year old Indian law has been scrapped from the
Indian Penal Code(IPC) after being deemed unconstitutional by a five-judge panel. Section 497was seen as contradictory to Article 14 and 21 of the Indian Constitution.
The law basically said that, whoever has sexual intercourse with someone else’s wife, without the husband’s consent, is guilty of the offence of adultery. The five-judge constitution bench of the supreme court ruled that this violated Article 21 and Article 14 of the constitution.
While Article 21 addresses the right of an individual to their own personal liberty, Article 14 talks about equality before the law, that is, equal protection for all within the country.
Reasons for scrapping Section 497
This particular section of the IPC has been controversial because it deprived married women of their own consent and autonomy. The law dictated that any man who has an affair with a married woman will be punished and the woman will only be looked at as the victim and forego legal consequences. That is unless the husband gives consent.
Essentially, this meant that provided the husband’s okay with it, a woman can be subjected to someone else’s desire regardless of her own consent.
Justice Chandrachud, one of the judges on the five-judge panel of the case, stated that “Autonomy is intrinsic in dignified human existence. Section 497 denuded the woman from making choices. It fails to meet the touchstone of article 21”.
An unmarried woman, on the other hand, can’t be prosecuted for adultery. So a man can’t be prosecuted, by his wife, for having an affair with an unmarried woman.
There is also the disparity that only men can be the victims as well as the accused - and this too is in violation of Article 14.
Having an affair outside of your marriage is decriminalised in all of the European countries as well as in Australia. That being said, while the law may be considered as outdated, it is still implemented in a few other countries, including nearly 20 states in the United States. Some of the Asian nations like the Philippines, Pakistan and Taiwan.