Times View The Supreme Court has been wise in decriminalising adultery. This newspaper has consistently held that while many may view adultery as morally problematic, this is a matter of personal morality and the state should stay out of it. We had called for IPC Section 497 to be scrapped on these grounds and pointed out that “using laws to enforce faithfulness in marriage is as absurd as making it legally mandatory for husband and wife to love each other”. This judgment is welcome also because it does away with a law that was blatantly patriarchal and treated married women as the property of their husbands. Even the British, who introduced it in India, did away with it in their own country as far back as 1857. Justice Chandrachud’s judgment, in particular, is clear that denying sexual autonomy to women is unconstitutional and unacceptable. We hope the government will now show good sense in accepting the verdict and not seek a review.

Supreme Court rules adultery is not a crime, scraps Section 497 of IPC

Watch: SC rules adultery is not a crime

Adultery not a criminal offence anymore, Supreme Court strikes down Section 497 of IPC

NEW DELHI: The Supreme Court on Thursday struck down as unconstitutional the 158-year-old Section 497 of IPC that punished a married man for the offence of adultery if he had sexual relations with a married woman "without the consent or connivance of her husband", but said adultery could continue to be a ground for divorce."When parties to a marriage lose their moral commitment to the relationship, it creates a dent in the marriage and it will depend upon the parties how to deal with the situation. Some may exonerate and live together and some may seek divorce... A punishment is unlikely to establish commitment," a bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said, rebutting the argument that Section 497 worked as a deterrent against spouses going astray.While saying that adultery could continue to be a ground for aggrieved spouses to seek divorce from their adulterous partners, the court said if one of the spouses committed suicide because of the adulterous nature of her/his partner, then the culprit could be proceeded against for the criminal offence of abetting suicide.The court tested Section 497 on the touchstone of constitutional provisions dealing with right to equality and guarantees against arbitrariness and discrimination, with Justices Chandrachud and Malhotra using privacy, individual's autonomy and personal choice as yardsticks of legality.The decision rejected a conception of women as actors with no agency of their own, mere "chattel". Thursday's decision puts India on par with many European countries, China, Japan, Australia and Brazil where adultery is no longer a criminal offence.CJI Misra, writing the judgment for himself and Justice Khanwilkar, said Section 497 violated right to equality as it punished only the married man while exonerating the ‘partner in crime', the married woman, who could not even be punished for being the abettor.In addition, the section treated the woman, with whom the married man had sexual intercourse, as a chattel of her husband as it was not an offence of adultery if the latter consented or connived for his wife's adulterous relationship with another man, the CJI said.Refusing to buy the Centre's argument to uphold validity of the provision on the ground that it was to protect the sanctity of marriage, the CJI said the section did not rope in those married men for adultery if they had sexual relationship outside the marriage with unmarried women, divorcees or widows.Moreover, the provision specifying that only the husband of the married woman could be the aggrieved person to file complaint of adultery against the adulterous married man made the SC say, "The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with life as he likes which is extremely excessive and disproportionate.""That women are treated as subordinate to men inasmuch as it lays down that there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted (in 1860)," the CJI said.Hoping to bring about a change in the societal mindset, CJI Misra said, "We are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband's monarchy over wife. That apart, there cannot be a community exposition of masculine dominance."Justice Nariman rescinded Section 497 because it said it was not adultery if the married woman's husband approved her adulterous relationship with another married man. "This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the ‘licensor', namely the husband, no offence is committed," he said."This archaic law has long outlived its purpose and does not square with today's constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today's day utterly irrational. On this basis alone, the law deserves to be struck down," he added.Justice Chandrachud took a broader view and said, "This court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is denial of this right. Section 497 denudes a married woman of her agency and identity, employing force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality." He added that marriage could not force an individual to cede her sexual autonomy to others.Justice Malhotra said, "The state must follow the minimalist approach in the criminalisation of offences, keeping in view the respect for autonomy of the individual to make his/her personal choices... Adultery undoubtedly is a moral wrong qua the spouses and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law?"