India’s top court has ruled adultery is no longer a crime, striking down a 158-year-old colonial-era law which said treated women as male property. Until now, any man who had sex with a married woman, without the permission of her husband, had committed a crime. It is not clear as to how many men have been prosecuted under the law – there is no data available. This is the second colonial-era law struck down by India’s Supreme Court this month – it also overturned a 157-year-old law which effectively criminalized gay sex in India.
India’s judicial system has been on a role this year. Days after scrapping the ground-breaking decision of abolishing section 377, India’s top court has ruled that adultery is no longer a crime. The Supreme Court struck down Section 497 of the Indian Penal Code that makes adultery a punishable offence for men. The five-judge bench of the Supreme Court said the 158-year-old law was unconstitutional and failure to Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).The supreme court stated that having a sexual relationship with a woman without her husband’s consent, previously a criminal offence, was obsolescent and deprived women of their equality.
The funny thing about the case is that the petitioner never wanted the judgement to rule the law out. The case was brought in by an Indian businessman living in Italy. He appealed to have another similar provision made gender neutral referring to section 497 of the Indian Penal Code.
The court took on the law, presented a judgement, which said that the offence was not justified on criminal grounds. Therefore, a prison sentence of up to five years was not needed and had to be done with.
Chief Justice of India Dipak Misra, in concurrence with Justice AM Khanwilkar, pronounced the judgement stating it very clearly, adultery could be an offence on moral grounds but should not be an offence on criminal grounds. “Adultery can be ground for any civil wrong. There can’t be any social license that destroys the matrimonial home, but adultery should not be a criminal offence,” he said. Saying it out and loud in bold letters that, wife is not a chattel of the husband, Misra said, “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say that a husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong.” “If any aggrieved spouse ended her life because of her partner’s adulterous relation, it could be treated as an abetment to suicide if evidence was produced”, the CJI said. The panel dignified their judgement with the ground rules of the Constitution that Equality was the governing principle of a system. Glorifying the beauty of the Constitution, the CJI added, “The Constitution is all about I, me and you.”
Justice Indu Malhotra, one of the few woman judge on the bench, said that Section 497 was a clear violation of fundamental rights granted in the Constitution further stating “The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by.”
The decision has been treated with both hot and cold blows. No doubt, this decision is one of the most socially progressive rulings by the court after the justification to decriminalize homosexuality. Advocates all around the country seemed to wave the supporting flags for the judgement, very much like the decision to legalise homosexual acts. Majority of them, against the adultery law, felt the decision was an outdated highlight of colonial-era criminal code and thus needed to be abolished. Therefore, the decision was as an act of decolonising the country’s Raj-era criminal code.
“I welcome this judgment by the supreme court,” said Rekha Sharma, the head of India’s National Commission for Women. “It was an outdated law, which should have been removed long back. This is a law from British era. Although the British had done away with it long back, we were still stuck with it.”
The decision is celebrated not only for its out bold validations but also the assurity that the judiciary is making bold initiatives to step out of the outdated character defining laws, to the laws for the people of 21st century. Evidently, the decision was not “progressive” enough for people who expected the changes to happen long back. A Delhi-based lawyer, Gautam Bhatia, states, “I wouldn’t yet call it a progressive era in the court. The court was dispensing with laws that had clearly fallen behind social mores. These are the low-hanging fruit.”
Some prominent feminists including Swati Maliwal, Delhi’s Commissioner for women, did clearly not welcome the decision. She wanted the adultery law to have become gender neutral. “In a society where women wield little power, especially in poorer areas of the country, it could be a hindrance against men abandoning their families. In an ideal society I would totally agree with this judgment, but we are not talking about an ideal society,” she said.
It all boils down to how the society reacts to certain rulings such as this. The judiciary is certainly taking big and bold steps to make the Constitution run along with the pace of the people of the 21st century, however, some of us, are not willing to run along. If the decision was not ideal in your own world, try challenging it. Maybe we could have another landmark ruling waiting ahead in the future.
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