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26 Feb 2024, Edition - 3149, Monday

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SC striking down adultery clause renders women freedom, say law experts

Archana Rohit


The recent ruling of Supreme Court not to treat adultery a crime puts the country in league with some of the Asian countries like China, South Korea and Japan.

The Chief Justice of the country before retirement had presided over a string of historic rulings recently granting more rights to women, gay couples and religious minorities. All these did challenge the section of conservatives in society.

Chief Justice Dipak Misra led a team of Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra to unanimously strike down the 158-year-old law that treated adultery in certain cases a criminal offence punishable by up to five years in prison.

But that does not mean legitimising professing or promoting the idea to cheat on your spouse, point out law experts.

Advocate A Mohan says: “Adultery happens when the delicate relationship between a husband and wife is lost or does not exist. Then it is seemingly implausible to allow a criminal offence against a third party and make it culpable. Just because it is struck down it will not encourage spouse cheating since the section itself is a pure ‘Romantic paternalism’ and a wife involved in an extramarital sexual relationship with another man is a victim and not an author of a crime. The Section punishes only the erring man and not an erring women so the Section is in favour of the adulterous women and not against her.”

According to Indian Penal Code Section 497- Adultery: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

In simple words, if the wife would cheat on her husband with some other married man, the husband could put a case against that man and he could be imprisoned for 3-4 years. This states that the man is deemed the offender and not the woman. In effect, giving the power to the man/husband and making her consent immaterial, experts say.
The major flaw was that the law could be invoked against the adulterer only by the husband of the adulteress. It did not provide for the wife of the adulterer to seek prosecution.

The law makes it clear that it is not considered a crime if the husband of the woman consents or connives to sexual intercourse with another man and his wife. Interestingly, sexual intercourse with married woman is adultery. However, sexual intercourse with an unmarried woman, widow, divorcee or sex worker is not adultery.

Chief Justice Dipak Misra had said adultery might not be the cause of an unhappy marriage but the result of it. In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy, they say.

All India Democratic Women’s Association district secretary A Radhika said, “It’s patriarchal notion of the right of the husband over the women’s sexuality and bodily integrity. Woman does not lose her identity and legal rights with her marriage.

“If any aggrieved spouse commits suicide because of the life partner’s adulterous relations and evidence is produced, it could be treated as an abetment to suicide.”

“It would be treated as an abetment to suicide under Section 306 of IPC. However, one should file for divorce instead of taking a drastic step ending her valuable life,” says advocate G Balachandran

Considering the changes society has witnessed in recent times, the Indian Penal Code revised and upgraded these laws keeping in mind the equality of men and women and enabling women to have more freedom and liberty in making their choices, it is pointed out.

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