In a unanimous judgment, the five-member bench of the top court struck down a law that meant a man who had sex with a married woman without getting her husband's permission could be charged and face up to five years in jail if convicted.
The Apex Court in December a year ago had issued a notice to the Centre asking why a married woman who is equally liable for the offence of adultery with a married man, who is not her husband, be not punished along with the man. Hearing the petition, the top court then said the laws on adultery treat a woman as her husband's subordinate and time has come for society to realise that a woman is as equal to a man in every respect.
The Constitution bench, also comprising Justices RF Nariman, DY Chandrachud and Indu Malhotra, pronounced four sets of concurring verdicts to declare the penal provision on adultery and section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional.
"Any system or law which affects individual dignity of women in a civilised society invites the wrath of the Constitution", said CJI Misra.
"It had a chilling effect on a lot of divorce cases", said Indira Jaising, a Supreme Court lawyer. The woman was exempted from punishment.
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The court also questioned the Centre's stand of defending the law of adultery, asking the latter "what public good" the penal law served as it provided that no offence would be made if the husband of a woman approves an adulterous relationship. Women must be treated with equality.
"Married women are not a special case for the objective of prosecution for adultery".
Representing the Centre, additional solicitor general Pinky Anand said marriages in India were not an exclusive affair; they involved families of both the parties and the society at large, hence the State becomes involved. "Husband is not the master of the wife", the verdict added. Anything where consent is violated, whether of a man or a woman, should be punishable.
Under the law, a wife doesn't enjoy any right to prosecute the adulterous husband, or the woman who has indulged in sexual intercourse with the husband.
"Thinking of adultery from a point of view of criminality is a retrograde step", unanimously declared the five-judge bench of the Supreme Court.
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"Diluting adultery laws will impact the sanctity of marriages".
Like the decision to legalise homosexual acts, some advocates against the adultery law characterised Thursday's decision as an act of decolonising the country's Raj-era criminal code.
"The institution of marriage must be protected".
Countering the reliance placed by the petitioners on global authorities, including those of South Africa, Namibia, South Korea and Guatemala, in context of the decriminalisation of adultery, she had further contended, "we are in India. Stability of marriages is not an ideal to be scorned". "They can not defend themselves and the stigma the prosecution casts on them will last forever and that in itself is a punishment as far as the women are concerned".
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