Adultery law struck down: As activists laud SC for upholding equality, questions raised over constitutionality of triple talaq ordinance

The Supreme Court on Thursday struck down Section 497 of Indian Penal Code (IPC), which penalises adultery saying it was unconstitutional, 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 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 RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra said that unequal treatment of women invites the wrath of the Constitution.

The petitioner's lawyer expressed his happiness, calling it a monumental judgment. "It is a monumental judgment. I am extremely happy with the judgment. The people of India should also be happy," said Raj Kallishwaram.

The judgment garnered various responses, with most lauding the judgment but some questioning it while comparing it to the triple talaq verdict.

All India Majlis-E-Ittehadul Muslimeen (AIMIM) president and lawyer Asaduddin Owaisi, asked if Supreme Court has decriminalised Section 377 and 497, why is triple talaq still a penal offence. He asks if the Modi government will learn from these judgments and take back their unconstitutional Triple Talaq ordinance, also known as the Muslim Women (Protection of Rights on Marriage) Ordinance.

"My opinion is that the Triple Talaq ordinance should be challenged in Court because it's a fraud. In the first page of the ordinance, the government says that Supreme Court has termed it unconstitutional but the court didn't say any such thing. Rather, it had just set it aside," Owaisi told ANI.

Journalist, Seema Pasha also had an opinion similar to Owaisi's. "So, a Muslim man can be adulterous but if he initiates divorce... he can be thrown in jail based on a complaint filed by his wife or her family?" she asks. Barkha Dutt, a journalist, also pointed out the paradox in the judgment. Though she welcomed the judgment she also stated that adultery being decriminalised and triple talaq being criminalised is contradictory.

The judgment was welcomed by activists, who said the archaic law should have been dumped a long time ago to keep pace with the rest of world. The president of National Commission of Women, Rekha Sharma, welcomed the judgment, stating that not only is this judgment for all women, but it is also gender neutral.  "This is a law from the British era. Although the British had done away with it long back, we were still stuck with it," she said.

Sadanand Dhume, a columnist, expressed his satisfaction over the judgment. He said that 2018 will be remembered as the year "judges tore down the scaffolding of Victorian morality in India erected more than 150 years ago by the British".

Journalist and author Anna MM Vetticad‏ lauded the judgment stating that adultery should only be grounds for divorce and not a crime. Supreme Court lawyer Prashant Bhushan lauded the apex court for a 'fine judgment'.

According to social activist Ranjana Kumari, "patriarchal control" over women was unacceptable. "We welcome the judgment by the SC striking down the 158-year-old law based on Victorian values... which treats women as property of husbands and criminalises adultery. Patriarchal control over women's body unacceptable," she tweeted.

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," Chief 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.

"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".

The CJI began reading the judgment by saying that 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 Malhotra, the lone woman judge on the bench, said Section 497 is a clear violation of the fundamental rights granted in the Constitution and there is no justification for continuation of the provision. Justice Nariman termed Section 497 as an 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 the cause of unhappy marriage, it could be a result of an unhappy marriage, Justice Misra said.

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 a denial of the substance of equality.

The CJI and Justice Khanwilkar said that 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.

With inputs from PTI

Updated Date: Sep 27, 2018 13:46:14 IST