Adultery law in India

From Wikipedia, the free encyclopedia
Jump to navigation Jump to search

Section 497 of the Indian Penal Code was a section dealing with adultery. Under this law a woman cannot be punished for the offence of adultery. Only a man who has consensual sexual intercourse with the wife of another man without his consent can be punished under this offence in India. If someone "lives in adultery", the partner can file for divorce.[1] The law became defunct on 27 September 2018 by Supreme Court of India.[2] The Supreme Court called the law unconstitutional because it "treats a husband as the master."[3]

Section 497 read as follows:

Adultery.—
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, 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][4] be punishable as an abettor.

— Section 497 of IPC[5]

Petition to decriminalise Section 497[edit]

Because of this problematic interpretation, the Supreme Court in December 2017 decided to accept the public interest litigation in which it has been prayed that the Court strikes down or completely does away with Section 497 of the Indian Penal Code entirely.

It has been argued that the section violates two articles of the Constitution of India- Article 14 and Article 15.

Article 14 reads as follows: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

Article 15 reads as follows: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."[6]

On accepting this petition, the Court in its initial observations noted that this was not the first petition challenging the section - debates and cases on this have been in motion since 1954, making it important for the Court to decide on this question without much ado. It felt that laws are supposed to be gender neutral. However, in this case, it merely makes the woman a victim and thus "creates a dent on the individual independent identity of the woman."[7]

The arguments by the party opposing this decriminalisation- the Centre- states that the section "supports, safeguards and protects the institution of marriage... Stability of marriages is not an ideal to be scorned." It further argues that if the petition is allowed, then "adulterous relations will have more free play than now." As an alternative, it provides that the recommendations of the Committee on Reforms of Criminal Justice System (2003) be implemented. This committee recommended that the wording of the section be changed to: "Whoever has sexual intercourse with the spouse of any other person is guilty of adultery..." to tackle the problem of gender bias which arises from the reading of the current section.[8]

Judgement[edit]

The Court began to hear the arguments on this petition on 1 August 2018. The Court said that if the party challenging this section can simply prove that it violates Article 14 of the Constitution of India, then the section will be struck down.[9]

A five-judge Constitution bench of the Supreme Court on 27 September 2018 unanimously ruled to scrap Section 497.

While reading the judgment, Chief Justice Dipak Misra said, "it (adultery) cannot be a criminal offence," however it can be a ground for civil issues like divorce.[10][11]

References[edit]

  1. ^ "Adultery Law in India". Legal Service India. Retrieved 10 June 2016.
  2. ^ Bureau, ABP News. "Supreme Court quashes Section 497, says 'Adultery not a criminal offence'". Retrieved 2018-09-27.
  3. ^ "Women Are Not 'Chattel,' Says India's Supreme Court In Striking Down Adultery Law". NPR.org. Retrieved 2018-09-27.
  4. ^ Some sources give "not", such as http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=3534, others omit this word such as http://www.hyderabadpolice.gov.in/acts/Indianpenalcode1860.pdf.
  5. ^ "Indian Penal Code". Section 497, Act of 1860 (PDF).
  6. ^ "The Constitution of India" (PDF).
  7. ^ "Statutory Immunity To Women From Prosecution For adultery - SC Admits Writ Petition Challenging The Vires Of Section 497IPC [Read Petition & Order] | Live Law". Live Law. 2017-12-08. Retrieved 2018-09-14.
  8. ^ "Counter affidavit Adultery.pdf". Google Docs. Retrieved 2018-09-14.
  9. ^ "Indian Supreme Court Begins Hearing Petitions Seeking Decriminalization Of Adultery [Section 497 IPC] | Live Law". Live Law. 2018-08-01. Retrieved 2018-09-14.
  10. ^ "Adultery no longer a criminal offence in India". BBC News. Retrieved 27 September 2018.
  11. ^ "‘Husband is not the master’: 12 key points of SC verdict on Adultery Law", 'DBPOST. 27 September 2018. Archived from the original on 27 September 2018. Retrieved on 27 September 2018.