Adultery decriminalized in India as it makes women ‘chattel’ of husbands

According to the 158-year-old colonial-era law, a man who has sex with a married woman, without the permission of her husband, can face a maximum of five years in prison.

But in one case in 2015, a 50-year-old policeman was jailed after he was caught in bed with the wife of another man.

Terming that adultery as a criminal offence "is absolutely, manifestly arbitrary", Justice Misra said it affects the subordination of woman and thus affects her right to life. The petitioners want the adultery law to be gender-neutral, which now punishes only the man, and not the woman. "We are not questioning the legislature's competence to make laws but where is the "collective good" in Section 497 of IPC?" Anything where consent is violated, whether of a man or a woman, should be punishable.

Section 497 gives a husband the exclusive right to prosecute his wife's lover while a similar right is not conferred on a wife to prosecute the woman with whom her husband has committed adultery.

BJP spokesperson Nalin Kohli said that every judgement of the SC has to be welcomed because it becomes the law "which we all have to subscribe to".

The subtext here, of course, is preserving the "unique structure" of patriarchy and the Indian culture of hypocrisy over women's rights, love, sex and morality. However, the Supreme Court said that Section 377 would continue to be in force in cases of unnatural sex with animals and children. "They are not in any way situated differently than men", his petition said.

Adultery is prohibited in Sharia or Islamic Law, so it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan Pakistan, Bangladesh and Somalia.

The part of Section 198 of the Code of Criminal Procedure which deals with adultery was also declared unconstitutional.

Noting that the law is singular in the penal code for treating men and women differently, Chief Justice Dipak Misra said "The adultery law is arbitrary and it offends the dignity of a woman".

DY Chandrachud also concurred with the other judges, saying the law destroys women's dignity and deprives them of agency, autonomy and dignity.

The petition was brought by Kerala native Joseph Shine, who had urged the top court to re-examine the validity of section 497 owing to its implied gender bias.

Supreme Court says adultery can be a ground for divorce but not a crime.

Couples can not use adultery as a ground for divorce if they lived together as a couple for six months after the infidelity was known about.

"A woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage can not be curbed", Justice DY Chandrachud observed.

The Chief Justice of the Supreme Court has presided over a string of verdicts in recent weeks.

  • Jon Douglas