India's top court has ruled that adultery is no longer a crime, declaring the colonial-era law that punished the offence unconstitutional and discriminatory. A five-judge bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said that unequal treatment of women invites the wrath of the Constitution.
In a unanimous judgment, the five-member bench of the top court struck down a law that meant a man who had sex with a married woman without getting her husband's permission could be charged and face up to five years in jail if convicted.
Chief Justice of India (CJI) Dipak Misra while reading out the judgement said: "Equality is the governing principle of a system".
"That apart, there can not be a community exposition of masculine dominance", it observed while allowing a plea challenging the Constitutional validity of section 497 of IPC, which was punishable by a maximum five years in jail or fine or both. "We are not questioning the legislature's competence to make laws but where is the "collective good" in Section 497 of IPC?"
"A woman can not be asked to think as a man or as how the society desires".
He said his wife slapped a case of adultery against him when he found out about her affair. "That is the reason we call it archaic", the Supreme Court said. "Adultery could be a moral wrong towards spouse and family but question is whether it should be a criminal offence?" she asked. However, the Supreme Court said that Section 377 would continue to be in force in cases of unnatural sex with animals and children.
However, his son Thursday said the decision in Sowmithri Vishnu case dealt with "constitutional challenge by approaching the discourse on the denial of equality in formal, and rather narrow terms". In today's case Justice Nariman observed that adultery violates of Article 14 of the Constitution and can not be treated as an offence.
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Justice Chandrachud said that the adultery law deprives married women the agency of consent and the Section 497 offends sexual freedom of women.
The court had taken a prima facie view that though the criminal law proceeded on "gender neutrality", the concept was absent in Section 497.
Last year, in response to the petition challenging the law, the court had said it treats a woman as her husband's subordinate and time had come for society to realise that a woman is as equal to a man in every respect.
There can't be any social licence which destroys a home, the CJI said, but added that adultery should not be a criminal offence.
Earlier only a Christian man could file for divorce on the grounds of adultery.
The law criminalised consensual sexual relations between a man and a married woman without the consent of her husband.
The Supreme Court delivered judgments interpreting laws to expand the ambit of fundamental rights.
