HIGHLIGHTS: Adultery not a criminal offence, says Supreme Court

April FrancisSep 28, 2018

It is not clear how many men have been prosecuted under the law since its inception - there is no data available.

Noting that the law is singular in the penal code for treating men and women differently, Chief Justice Dipak Misra said "The adultery law is arbitrary and it offends the dignity of a woman".

The apex court's five-judge bench headed by Chief Justice Dipak Misra said the beauty of the Constitution is that it includes "the I, me and you".

Any discrimination shall invite the wrath of the Constitution, the Chief Justice said, adding that a woman can not be asked to think about the way society desires her to do. According to media reports, the bench further said that making adultery a crime is retrograde and would mean "punishing unhappy people".

"Our society is not ready for this, we do not have to blindly follow western norms", said Ajay Gautam, founder of a right-wing group called Hum Hindu (We are Hindus). India's Supreme Court on Thursday struck down a law that makes adultery a crime.

Couples can not use adultery as a ground for divorce if they lived together as a couple for six months after the infidelity was known about.

The court also questioned the Centre's stand of defending the law of adultery, asking the latter "what public good" the penal law served as it provided that no offence would be made if the husband of a woman approves an adulterous relationship.

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However, his son Thursday said the decision in Sowmithri Vishnu case dealt with "constitutional challenge by approaching the discourse on the denial of equality in formal, and rather narrow terms".

In Somalia, Islamist Shabaab militants often carry out stonings of women for adultery. We argued that Section 198 of the Cr.P.C violated Article 14 of the Constitution of India because they fail the test of reasonable classification as they carve out arbitrary classifications in favor of the husband. However Section 2 (viii) of the Muslim Marriages Act says that if a man associates himself with a woman of evil repute or leads an infamous life, it amounts to cruelty to the wife. The petitioners want the adultery law to be gender-neutral, which now punishes only the man, and not the woman.

The law, Shine said, also "indirectly discriminates against women by holding an erroneous presumption that women are the property of men".

Prior to the verdict, the offence entailed a maximum punishment of five years, or fine, or both.

Kumar Jahagirdar, another activist fighting for the rights of the men, said domestic violence should be made gender neutral and there should be counselling before marriages to check compatibility between couples.

Dixit and Ramesh welcomed it, but some "wronged husbands" said the verdict has washed away many years of their work.

The law - known as Section 377 - held that intercourse between members of the same sex was against the order of nature. In the United States, adultery is still considered a crime in some states. "Stability of marriages is not an ideal to be scorned". "Women can't be asked to think what a society desires".

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