Adultery Is No Longer a Crime in India After Another Landmark Ruling

The court also struck down part of Section 198 of the Criminal Procedure Code dealing with adultery, LiveLaw reported.

However, adultery is the only provision of IPC in which men and women are treated differently, for one thing.

As the SC said: "In case of adultery, criminal law expects people to be loyal, which is a command which gets into the realm of privacy".

However, in its ruling, the Supreme Court dismissed concerns that the abolition of the law would result in higher rates of infidelity. Women can be punished for adultery in Somalia, where Islamist al-Shabab militants would usually stone them.

Finally, Justice Malhotra sealed the fate of the provision, questioning the need to make Adultery a criminal offence.

The top court, however, made it clear that "without a shadow of doubt", adultery can be grounds for divorce.

"...where is the "collective good" in Section 497 of IPC?" the court had asked.

Adultery is a crime in many parts of the world, particularly in countries with Islamic law, such as Iran and Saudi Arabia, but it is also technically illegal in 20 USA states, though rarely enforced.

National Commission for Women (NCW) chief Rekha Sharma, too, welcomed the judgement and said it should have been removed long time ago.

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. Further, it also created an arbitrary classification between married and unmarried women, thereby violating the fundamental right to equality under Article 14 of the Constitution of India. "Making adultery legal will hurt marriage bonds", a government counsel told the court, adding that "Indian ethos gives paramount importance to the institution and sanctity of marriage".

"For a man to be convicted for adultery is very rare because the crime has to be proved conclusively beyond doubt in the court". However, the Supreme Court said that Section 377 would continue to be in force in cases of unnatural sex with animals and children.

It further said that though "at first blush" the law on adultery may appear as a beneficial legislation which intends to serve the interests of women, on closer examination it would be found that the provision was a "kind of romantic paternalism which stems from the assumption that women, like chattels, are the property of men". It should be also noted that many countries around the world also do not hold adultery as a crime. The story is different in a country like Uganda, where adulterers could be jailed. Numerous rulings are based on testimony heard earlier this year, but only released now.

Since then, the top court has rejected similar pleas, including the constitutional validity of the law, at least twice - 1985 and 1988.

Stability of marriages is not an ideal to be scorned. However, the sexual act was exempted from punishment if it was performed with the consent or connivance of the husband of the woman. Long criticized as archaic and sexist, it made it illegal for a man to have sex with a married woman without the permission of her husband.

  • Joey Payne