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The Supreme Court on Thursday struck down a colonial-era anti-adultery law and termed it "unconstitutional", saying it dented the individuality of women and treated them as "chattel of husbands".
The apex court's five-judge Constitution bench was unanimous in striking down Section 497 of the Indian Penal Code dealing with the offence of adultery, holding it as manifestly arbitrary, archaic and violative of the rights to equality and equal opportunity to women.
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.
The top court, which held adultery as a relic of the past, said the autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices.
The National Commission of Women chief Rekha Sharma welcomed the judgement saying it should have been removed long time ago.
"This is a law from the British era, although British had done away with it long back, we were still stuck with it," she said. Her views were echoed by many lawyers and activists.
While adultery should not be a criminal offence, the bench held that adultery should continue to be treated as civil wrong, and can be grounds for dissolution of marriage or divorce. There can't be any social licence which destroys a home, Justice Misra said.
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."
Adultery was punishable by a maximum five years in jail or fine or both.
The apex court pronounced four sets of concurring judgements to declare penal provision on Adultery and section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional.
Justice Misra noted that adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia.
"We declare Section 497 IPC and Section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional," said Justice Misra, who wrote the judgement for himself and Justice Khanwilkar, adding that any provision treating women with inequality is not constitutional and it's time to say that "husband is not the master of woman".
Justice Malhotra, the lone woman judge on the bench, said Section 497 is clear violation of fundamental rights granted in the Constitution and there is no justification for continuation of the provision.
Justice Nariman termed Section 497 as archaic law and concurred with the CJI and Justice Khanwilkar, saying that the penal provision is violative of the rights to equality and equal opportunity to women.
Justice Chandrachud said Section 497 destroys and deprives women of dignity and is destructive of women's dignity, self-respect as it treats women as "chattel of husbands".
Adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage, Justice Misra said.
The CJI began reading the judgement by saying the beauty of the Constitution is that it includes "the I, me and you".
He said equality is the governing parameter of the Constitution and section 497 of the IPC is manifestly arbitrary the way it deals with women.
Justice Chandrachud said autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of past.
Legislature has imposed a condition on sexuality of women by making adultery as offence, he said, adding that section 497 is denial of substance of equality.
The CJI and Justice Khanwilkar said mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner's adulterous relation, then if evidence is produced, it could be treated as an abetment to suicide.
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Senior Supreme Court lawyer Prashant Bhushan termed the verdict a fine judgement that did away with an "antiquated" law.
"Another fine judgement by the SC striking down the antiquated law in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery (only of man who sleeps with someone's wife). Adultery can be ground for divorce but not criminal," Bhushan said on Twitter.
Congress MP and president of women's wing of the party Sushmita Dev agreed with him.
"Excellent decision to de-criminalise adultery. Also a law that does not give women the right to sue her adulterer husband & can't be herself sued if she is in adultery is unequal treatment & militates against her status as an individual separate entity," she tweeted.
Her party colleague Priyanka Chaturvedi lauded the verdict, saying there are some laws that need to be changed, modified or removed with time.
"It was a 150-year-old law which does not have a place in new India but at the same time we also want to note that adultery is not normal and can be a ground for divorce which in my opinion is a very fair judgement keeping in mind the country we live in and the century we are living in," she said.
Kavita Krishnan, Secretary, All India Progressive Women's Association (AIPWA), and a CPI(M-L) Polit Bureau member, said decriminalising adultery is welcome and was long overdue.
"Adultery is now grounds for divorce not crime. The law criminalising men for relations with some other man's wife was patriarchal, assumes wife is husband's property and has no autonomy. Good riddance #AdulteryVerdict," she tweeted.
The National Commission of Women chief Rekha Sharma, too, welcomed the judgement and said it should have been removed long time ago.
"It is a welcome decision and every country in the world has abolished it. It was long due. It is a forward looking judgement," she added.
"This is a law from the British era, although British had done away with it long back, we were still stuck with it," she said.
The All India Democratic Women's Association also said it is pertinent to note that most of the countries, including the UK, which formerly treated adultery as a crime, have decriminalised it.
All India Majlis-E-Ittehadul Muslimeen president Asaduddin Owaisi raked up the issue of triple talaq, saying the Supreme Court decriminalised sections 377 and 497, but it had just "set aside" the practice of instant divorce among Muslims, and the government made it a penal offence through an ordinance.
"The Supreme Court didn't say Triple Talaaq is Unconstitutional but “set it aside“ but Apex Court has said 377 & 497 is Unconstitutional will Modi Government learn from these judgments and take back their Unconstitutional Ordinance on Triple Talaaq(sic)," he tweeted.
According to social activist Ranjana Kumari, "patriarchal control" over women was unacceptable.
"We welcome the judgement by the SC striking down the 158yr old law based on Victorian values, in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery. Patriarchal control over women's body unacceptable," she tweeted.
Amnesty International India said on Thursday the Supreme Court's judgement declaring that adultery is not a crime is a "positive" step towards achieving equal rights for all and upholds individual dignity.
Some experts, however, sounded a note of caution over the verdict, calling it anti-women and warning that it could give a licence to people to have "illegitimate" relationships.
Delhi Commission for Women chief Swati Maliwal said decriminalising adultery completely is just going to add to the pain of women in the country.
"Totally disagree with the Supreme Court judgement on adultery. The judgement is anti-women. In a way, you have given an open general license to the people of this country to be in marriages but at the same time have illegitimate relationships," she said.
Social activist Brinda Adige also sought clarity and asked whether the verdict allows polygamy.
"Because we know that men very often marry two, three times and there is so much of problem when the first, second or third wife is abandoned. If adultery is not a crime, how is this woman even going to file a case against the husband who might desert or abandon her. It's a concern," she said.
Congress leader Renuka Chowdhury agreed with her.
"This is like criminalising the triple talaq law. They have done that but now the men will just abandon us or not give us talaq. They will have polygamy or nikah hallala which creates hell for us as women. I am glad it's not a crime anymore but I do not see how it helps. The court should...give us clarity," she said.
Watch Full Video: Supreme Court's landmark verdicts this week
(With agency inputs)
