New Delhi: Extra marital sex no longer a crime in India. A five-judge Constitution bench of the Supreme Court on Thursday struck down penal provision on adultery. The bench unanimously ruled to scrap Section 497 of the Indian Penal Code (IPC).
The Constitution bench, led by Chief Justice Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, had reserved it verdict in the case in August.
The 158-year old adultery law punished a man with five years in jail or fine or both for an affair but not the woman, treating her as her husband’s property. “It’s time to say that (a) husband is not the master of (his) wife,” chief justice of India, Dipak Misra, read out from the judgment.
Unlike the country’s sexual assault laws, which hinge on the consent of the woman, the adultery law did not consider the woman’s will. Though women couldn’t be punished under the provision, a husband could prosecute the man who had sexual relations with his wife, even if the wife was a voluntary participant in the act.
A wife, on the other hand, could prosecute neither her husband nor those with whom he had engaged in extramarital affairs.
The judges noted that most countries had abolished laws against adultery. The bench held that adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.
During the hearing, the Narendra Modi government had defended the law saying adultery must remain a crime so that the sanctity of marriage can be protected and it serves a public good.
“Protecting marriage is the responsibility of the couple involved. If one of them fails, there is a civil remedy (divorce law) available to the other. Where is the question of ‘public good’ in a broken marriage?” Misra had questioned.
The government was open to make the law gender neutral by allowing persecution of woman who has sex with married man. However, the SC has refused to allow persecution of woman.
The Supreme Court had upheld the legality of the crime in 1954, arguing that in adultery “it is commonly accepted that it is the man who is the seducer, and not the women”. And making the law gender-neutral would allow for “a crusade by a woman against a woman,” the top court observed.