SC Verdict On Adultery Will Encourage People On Illegitimate Relationship

Charlene Craig
September 28, 2018

Framed within the then-prevailing ethos of the Victorian era, the law perceived adultery to be a problem to be tackled between two men, over the body of the woman.

Joseph Shine, the hotelier whose petition led the Supreme Court to decriminalise adultery, is "a happily-married" Church-going Malayalee in Italy and, as his lawyer underscores, has no personal stake in the law scrapped by the court on Thursday.

In a strong echo of this, Justice Indu Malhotra noted in her judgment that "any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 (equality) and 15 (prohibition of discrimination) of the Constitution, which form the pillars against the vice of arbitrariness and discrimination".

"This is like criminalising the triple talaq law".

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Chief Justice Misra, in an opinion for himself and Justice A.M. Khanwilkar, observed that Section 497 (adultery) of the Code "commands" married couples to remain loyal to each other. "The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife", the affidavit said. It states that a woman, by marriage, "consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity" - such a notion has "no place in the constitutional order". The Centre had defended the law saying it's essential to preserve the institution of marriage. Under this law women were not "protected" as alleged by many, because women could not charge the adulterer husband, as women were pursed by their husband as property.

The court pointed out how women are being subordinated by the law.

The court took care to make it clear that it was not endorsing adultery.

The Bench observed that adultery can only be retained as a civil fault within the matrimonial law and the parties to a marriage can invoke it as a ground for divorce.

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There can't be any social licence which destroys a home, the chief justice said.

If Section 497 IPC were applied. Besides, there is no data to back claims that abolition of adultery as a crime would result in "chaos in sexual morality" or an increase of divorce.

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 offence of rape, is guilty of the offence of adultery". Section 497 did not address the core issue of an unhappy marriage. She said "a law that does not give women the right to sue her adulterer unequal treatment and militates against her status as an individual".

If Section 198 (2) of CrPC were applied. It is her purity that was guarded by her husband. Anand also could not have complained against Chandni.

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