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Adultery not a crime, but ground for divorce says Supreme Court

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New Delhi, Sep 27: The Supreme Court has struck down adultery as an offence under Section 497 of IPC, which punished a married man only for having consensual sexual relation with a married woman without consent or connivance of her husband. The court observed that adultery as a criminal offence under Section 497 is absolutely, manifestly and arbitrary. The court also said that it affects the subordination of a woman and affects right to life.

The court also observed that adultery can be a ground for divorce, but not a criminal offence.

SC strikes down adultery as offence under Section 497 IPC

The Bench said, it can be seen as a civil remedy and a ground for dissolution of marriage.

Section 497: Revisiting adultery judgments in India

The court further stated that mere adultery cannot be a crime. However if any aggrieved spouse commits suicide because of life partner's adulterous relation and if evidence is produced, it could be treated as abetment to suicide.

The court observed that husband is not the master of the woman. The magnificent beauty is I, you and we, the Bench headed by Chief Justice of India Dipak Misra observed while delivering the verdict on the validity of Section 497 of the Indian Penal Code, which punishes married men for adultery by having a sexual relationship with a married woman without the consent or connivance of her husband.

The CJI further observed that any law that affects the individual dignity, equity of a woman in a civilised society invites the wrath of the Constitution. A dignity of a woman cannot be treated as an annexe to a building. The dignity of a woman is an ancient concept, the court also said.

Justice R F Nariman while agreeing with the CJI and Justice A M Khanwilkar said that Section 497 is archaic provision, which is unconstitutional and hence is being struck down.

Is it time to make adultery law gender neutral? Will it impact institution of marriage?

The Centre had said that adultery must continue as a penal offence as it is a threat to the sanctity of marriage. It also said removing the provision that holds men guilty of adultery and not women will wreck havoc in the institution of marriage. The court has reserved orders on the matter.

The centre said that we in India must evolve our laws according to societal developments and not go by what happens in western countries or other societies. The idea of Section 497 is not to enforce monogamy but protect fidelity in marriage, which is part of the promise made by parties to a marriage.

What does Section 497 state:

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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

The Centre in its affidavit however did not deal with the contentious issue of making both men and women equally liable for the crime of adultery. The issue of equal liability is under consideration by the Law Commission of India. We will await the final report of the commission, the Centre also said.

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