India's top court says adultery no longer criminal offence

India's Supreme Court rules adultery not a crime any more

On Thursday, when the Supreme Court verdict declared that adultery is not a crime, the 32-year-old IT professional from Pune, who has spent over Rs 4 lakh on legal consultations, said he was relieved but also troubled. The Bench comprised, Chief Justice of India, Dipak Misra, Justices R Nariman, A M Khanwilkar, D Chandrachud and Indu Malhotra.

Over the last 10 years, he lost custody of his child, was sacked from two jobs and suffered huge mental trauma after his wife registered a case against him on charges of adultery.

He further held that Adultery can be ground for civil issues including dissolution of marriage, but it cannot be a criminal offence.

"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. The court felt that the law was against women who had no opportunity to defend themselves in a situation where they are falsely linked to a man on mere suspicion, since a woman can not be made party to the case under 497 and had no locus standi.

The law punished a man who has an affair with a woman "without the consent or connivance of" her husband, with five years in jail or fine or both, NDTV reports. Husband is not the master of wife.

"It had a chilling effect on a lot of divorce cases", said Indira Jaising, a Supreme Court lawyer. The court however made it clear that adultery can be a ground for divorce. The system can not treat women unequally. "Otherwise, the children from such marriages will suffer", the Centre's counsel had told the SC in August 2017, defending the IPC provision that does not penalise a man for forcibly having sex with his wife aged between 15 and 17.

If "traditions", "cultural morality", "religion", etc., say otherwise, they should be disregarded. "It shouldn't be a criminal offence, other people are also involved in it", Misra said, reading out the judgement, also on behalf of Justice A.M. Khanwilkar.

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. "But why a criminal offence?"

The following is the chronology of events leading to the Supreme Court Thursday declaring as unconstitutional the penal provision on adultery, saying it was manifestly arbitrary and dents the individuality of women.

A five-judge bench of Supreme Court on September 26, 2018 ruled that Aadhaar was constitutional but making it mandatory for availing government services was unconstitutional.

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.

"Married women are not a special case for the objective of prosecution for adultery".

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

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