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SC strikes down adultery law as unconstitutional, arbitrary

Saima Siddiqui

Saima SiddiquiBy Saima Siddiqui

Published on 27 Sep 2018 5:51 AM GMT

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New Delhi: The Supreme Court on Thursday struck down Section 497 of the Indian Penal Code, an adultery law dating to the British era, terming it unconstitutional, archaic and manifestly arbitrary, with one judge saying women can't be treated as "cattle".

"Mere adultery can't be a criminal offence. It is a matter of privacy. Husband is not the master of wife. Women should be treated with equality along with men," Chief Justice Dipak Misra also added,"Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage.". "In case of adultery, criminal law expects people to be loyal which is a command which gets into the realm of privacy," says CJI Dipak Misra.

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Most countries have abolished adultery as a crime. "It shouldn't be a criminal offence, other people are also involved in it," Misra said, reading out the judgement, also on behalf of Justice A.M. Khanwilkar.

The top court asked "what is the sanctity of marriage here. If the consent of husband is taken, then there is no adultery? ... "What is this consent? There will be no offence if the husband consents to this relationship? What is this? What is the collective public good in Section 497 to hold that this (adultery) is an offence".

Any discrimination shall invite the wrath of the Constitution, the Chief Justice said, adding that a woman cannot be asked to think about the way society desires her to do.

Justice Rohinton F. Nariman, reading out his judgement, said: "Women can't be treated as cattle".

"Adultery can still be a civil wrong and nobody has the right to enter into an adulterous relationship. But it does not mean that they would be prosecuted," the Supreme Court bench had earlier said, adding "when it is consensual, how can there be prosecution".

Justice D.Y. Chandrachud in a concurring but separate judgment said society has two sets of morality in sexual behaviour, one for women and another for men.

Earlier this month the apex court had decriminalised same sex offence under Section 377 of the IPC, which was another British era law.

Any discrimination shall invite the wrath of the Constitution, the Chief Justice said, adding that a woman cannot be asked to think about the way society desires her to do.

Society treating women as 'embodiment of virtue' leads to things like honour killings, he said, adding that the archaic law is against dignity, liberty and sexual autonomy guaranteed under the Constitution.

With IANS Inputs

Saima Siddiqui

Saima Siddiqui

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