Section 497 of Indian Penal Code (IPC) which penalises adultery has been struck down by a constitutional bench of the Supreme Court on Thursday.
The bench comprising of Chief Justice Dipak Misra , Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra delivered the decision.
On a four separate but concurring judgments CJI Misra wrote on behalf of himself and Justice Khanwilkar , Justices Nariman, Chandrachud and Malhotra wrote a judgment each.
“Any provision treating woman with inequality is not Constitutional”, said CJI Dipak Misra
He went on to strike down Section 497 on grounds of being manifestly arbitrary and therefore violate of Article 4 of the Constitution of India which says says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
He added that adultery cannot be a criminal offence although it can be ground for civil issues including divorce.
Justice Nariman concurred with CJI Misra and Justice Khanwilkar J, holding Section 497 violative of Articles 14 and 15 of the Constitution.
“Ancient notions of man being perpetrator and woman being victim no longer holds good”, he held.
Earlier a 41-year-old Indian businessman Joseph Shine living in Italy petitioned the Supreme Court to strike down the law on August.
“Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,” his petition said.
Kaleeswaram Raj, a lawyer for the petitioner, said the adultery law was “often misused” by husbands during matrimonial disputes such as divorce, or civil cases relating to wives receiving maintenance. Although there is no information on actual convictions under the adultry law.
“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”, he said
The 158-year-old colonial-era law said any man who had sex with a married woman, without the permission of her husband, was guilty of the criminal act of adultery.