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03 Aug 2018

Punishing only men for adultery violates right to equality: SC

SC examines constitutional validity of adultery laws

The SC has commenced hearing on a much-criticized law: the 158-year-old criminalization of adultery in India.

It isn't "pro-women" as most people think, the court asserted, but is rather the opposite "as it treats (women) as husbands' chattel."

But even if the clauses are amended, adultery will still remain a valid ground for divorce, it said.

In context

SC examines constitutional validity of adultery laws
What is 'adultery,' according to Indian laws?


What is 'adultery,' according to Indian laws?

According to Section 497 of the IPC, "Whoever has sexual intercourse with a person who is...the wife of another man, without the consent or connivance of that man (except rape)...is guilty of the offence of adultery."

The man in this case can be punished with up to five years' imprisonment or fine.

"The wife shall not be punishable as an abettor," the section adds.


Women can't be punished, women can't file complaints either: Petition

NRI Joseph Shine challenged the laws in court, demanding a gender-neutral law, wherein adulterous women will also be punished.

Moreover, under CrPC Section 198(2), only a man can file such a complaint, leaving cheated wives helpless.

It doesn't uphold the sanctity of marriage either, as it doesn't apply to relations between a married man and an unmarried woman, widow or transgender, the petitioner argued.

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Section 497 protects the sanctity of marriage: Centre

Last month, the Centre filed an affidavit in the matter, saying Section 497 "supports, safeguards and protects the institution of marriage." The PIL "is liable to be dismissed at the very outset."

The Law Commission is meanwhile considering amendments to the law, the Centre said, after the Malimath Committee on Reforms of Criminal Justice System recommended some.

The Commission has "identified focus areas and formed sub-groups to deliberate."


Both husband and wife have equal responsibility: SC

The SC has now refused to make the laws gender-neutral. Rather, it would examine its constitutional validity, it said.

Making adultery a penal offense violates Article 14 of the Constitution, it said.

"The wife of a consenting husband is treated as chattel. This is absurd," observed Justice Indu Malhotra.

Both husband and wife have equal responsibility, CJI Dipak Misra noted.

Irrespective of decision, married people won't get 'license' for affairs

However, the court didn't accept the argument that Section 497 restricts sexual freedom. "Our concept of sanctity of marriage is very different from that in the US. Striking down Section 497 won't mean the SC gave a license to married men and women to...fall in love outside wedlock."

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