Adultery is no more a crime, Supreme Court of India (SCI)scraps 158-year-old law
The Supreme Court Of India (SCI)on Thursday Sep 27.09.2018 quashed adultery as a criminal offence in India.
A Constitution bench headed by Chief Justice of India Dipak Misra declared by unanimity Section 497 in the Indian Penal Code as unconstitutional and being violative of gender equality
The SCI underlined that Section 497 treats women as properties of their husbands and is hence manifestly discriminatory. It trashed the central government's defence of Section 497 that it protects sanctity of marriages.
The SCI noted that sanctity of marriage goes out of the window in various situations, including the one where a married man has sexual intercourse with an unmarried woman, but the legislature has criminalised only one instance.
The SCI also emphasised that each partner to a marriage is equally responsible to keep the sanctity of marriage intact. Adultery will henceforth only remain a civil wrong and a ground for divorce.
Section 497 makes adultery an offence only with respect to a man who has a relationship with somebody's wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years.
Another peculiar aspect of Section 497 is the fact that the fulcrum of the offence is gone if consent or connivance of the husband can be established. On a petition by Joseph Shine, the Constitution bench is examining the validity of Section 497.
Replying to the plea, the central government has filed its affidavit, saying that the provision punishing adultery "supports, safeguards and protects the institution of marriage".
The SCI on Thursday Sep 2,09.2018 unanimously struck down Section 497 of the Indian Penal Code that makes adultery a punishable offence for men. In four separate but concurring judgments, the five-judge bench of the Supreme Court said the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
The SCI also declared Section 198(1) and 198(2) of the CrPC, which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional. Chief Justice of India Dipak Misra, who pronounced the judgment in concurrence with Justice AM Khanwilkar, said while adultery could be a ground for civil issues, including dissolution of marriage, it could not be a criminal offence.
The five-judge bench of the Supreme Court had reserved judgment on August 8, saying that making adultery a penal offence would be irrational and violative of Article 14 of the Constitution.
The petition seeking the repeal of Section 497 IPC was filed by a non-resident Keralite — Joseph Shine — who termed the 158-year-old law enacted by the Britishers as “unjust, illegal and arbitrary and violative of citizens’ fundamental rights”. Questioning the gender bias in the provision drafted by Lord Macaulay in 1860, Shine has also challenged Section 198(2) of the CrPC.
India decriminalises adultery: A look at other countries where it is still a crime or not
Adultery is no longer a crime but could be a ground for divorce, the Supreme Court of India (SCI)on Thursday Sep 2.09.2018 said while scrapping an archaic law that punished a man but not the woman for adultery. Stating that the law offends the dignity of women, a five-judge bench headed by CJI Dipak Misra said “Husband is not the master of the wife. Any provision treating a woman with inequality is not constitutional.”“Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage. Mere adultery can’t be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the IPC. Thinking of adultery as a criminal offence is a retrograde step,” the bench said.
As India decriminalises adultery, here is a look at where other countries stand:
The Philippines is one among the Asian countries where the practice of adultery and concubinage is a crime. Both are deemed “crimes against chastity” under the Revised Penal Code of the Philippines and are treated as sexual infidelity in the Family Code. A wife and her partner can be sentenced for up to six years in jail if the husband proves that she had a sexual intercourse with a man outside the marriage. Husband, on the other hand, can only be charged if the wife proves that he had sexual intercourse under “scandalous circumstances” with his concubine or lived together with his mistress in any other place. The husband may be imprisoned for up to four years and 1 day, while his partner can be banished but faces no jail.
Countries governed by Islamic law, including Saudi Arabia, and Somalia, all strictly prohibit “zina”, or “fornication outside marriage”. Punishments include fines, arbitrary detention, imprisonment, flogging and in extreme cases, the death penalty.
In Pakistan, adultery is a crime under the Hudood Ordinance, promulgated in 1979. The controversial law mandates a woman making an accusation of rape to provide four adult male eyewitnesses of good standing (tazkiyah-al-shuhood) to “the act of penetration” as evidence to avoid being charged with adultery herself.
South Korea, in 2015, was the latest country that decriminalised adultery. By a 7-2 majority, the nine-member bench revoked the 1953 law under which cheating spouses could be jailed for up to three years. “Even if adultery should be condemned as immoral, state power should not intervene in individuals’ private lives,” Presiding judge Park Han-Chul said during the hearing
In Taiwan, adultery is a criminal offence that is punishable by up to one year in prison, with penalties applying to both sexes. “If Taiwanese men get caught, they usually apologise, then the wives tend to drop the charge because men are often the economic providers in most families, but if it is the other way round the women are dragged into court,” explains Chen Yi-chien, a gender equality activist
Adultery is still considered a crime in 20 states of the United States. Adultery is rarely prosecuted as a criminal offence. More common than criminal prosecutions for adultery are job terminations, sanctions, penalty or demotions, the LA Times reported.
Having an affair outside the marriage is not illegal in any European country and Australia.
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