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Adultery grounds for divorce, not criminal offense

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India's Supreme Court ruled adultery is not a crime but is still valid grounds for divorce

As an intervener in this matter, I prayed for making section 497 of Indian Penal Code, 1860 and section 198 of Code of Criminal Procedure, 1973 as gender neutral and not unconstitutional.

The court's ruling was welcomed by women's rights activists and lawyers who argued that the law treated women as victims and denied them agency. But that case, which was to have been filed by the lover's wife, is no longer valid with the court decriminalising adultery.

Consensual sexual relationships between two adults, even if married to other people, will no longer be a crime.

Adultery is prohibited in Sharia or Islamic Law, so it is a criminal offence in Islamic countries such as Iran, Saudi Arabia, Afghanistan Pakistan, Bangladesh and Somalia. However, the court said that it can be a ground for divorce and a person will have civil remedies for it.

In July this year, opposing the petition, the Centre had submitted in the court that striking down Section 497 would "prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage. The husband is not the master of the wife", the verdict added. He, therefore, struck down the provisions criminalizing Adultery as violative of Articles 14 and 21 of the Constitution. She further added that Section 497 is based on the Doctrine of Coverture, which holds that a woman loses her identity and legal right with marriage.

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The judges deemed the law unconstitutional after Indian businessman Joseph Shine filed a petition past year challenging Section 497. Concluding the separate but concurring decision, the CJI said that thinking of adultery from the point of view of criminality "would be a retrograde step". But the top court observed: "Where is the sanctity of marriage when the husband can consent for his wife to indulge in sexual intercourse with another man?..."

"For a man to be convicted for adultery is very rare because the crime has to be proved conclusively beyond doubt in the court".

Adultery is not a criminal offence in China, Japan and in many western countries, Misra pointed out. "I wish the decision had come earlier", the 35-year-old doctor from Delhi said.

A wife can not be made a slave to her husband's sexual desires. A petition was also filed for the scrapping of the law as it treats men and woman unequally. Each religion is governed by its own matrimonial law. "When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability", the plea reads.

"A woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage can not be curbed", Justice DY Chandrachud observed.

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