Indian Supreme Court Strikes Down Adultery As A Criminal Offence

The celebrations post the iconic judgment decriminalising homosexuality haven’t entirely died down (and for good reason), but the Supreme Court has already given us another reason to once again admire our judiciary. On September 27, 2018, the Supreme Court of India struck down Section 497 of the Indian Penal Code (IPC), which termed adultery as a criminal offence. After decriminalising homosexuality, this is the second colonial law that the Supreme Court has done away with, both in the span of one month.

“Husband is not the master of the wife, any law which affects individual dignity, equality of women in a civilised society invites the wrath of the Constitution,” said Chief Justice Dipak Misra post the Supreme Court’s judgement. Chief Justice Misra led the Supreme Court bench that presided over this case, the five-judged bench also comprised of Justices R. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

Terming adultery as a criminal offence was not the only problematic aspect of this archaic law. It was discriminatory to both men and women. As per the law, women could not be punished as abettors and the men involved would be charged for being seducers with the possibility of being imprisoned for a maximum of five years – the law was clearly biased and it also positioned woman as the property of men. Also, the law was only applicable to adultery committed by a woman, that is, the law did not allow women to file complaints against their adulterous husband. However, the most convoluted aspect of this law is the fact that if the husband of the woman involved were to give his consent with respect to her adulterous relationship, the act of adultery would no longer be viewed as an offence.

The petition challenging the law was filed in August 2017 by 41-year-old Joseph Shine, who is an Indian businessman based out of Italy. “Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,” stated his petition. It went on to say how the law “indirectly discriminates against women by holding an erroneous presumption that women are the property of men”.

The law not only completely stripped women of having any agency, but also posed a threat of being misused and abused by husbands during matrimonial disputes. “Men would often file criminal complaints against suspected or imagined men who they would allege were having affairs with their wives. These charges could never be proved, but ended up smearing the reputations of their estranged or divorced partners,” said Kaleeswaram Raj, who represented Shine when he filed the petition.