India's top court on Thursday decriminalized adultery in a landmark judgment aimed at upholding the right to equality and freedom, scrapping a law first brought in under British colonial rule in 1860.
The Chief Justice also said that any law that affects the idividual dignity of women will invite the wrath of the constitution.
CJI Misra clarified that adultery remained a ground for civil issues, including dissolution of marriage.
The court also emphasized that extramarital affairs, while still valid grounds for divorce, were a private matter between adults. To put the entire judgment in simplest of terms, the verdict specifically says that adultery is not a criminal offence.
With the Chief Justice observing that the survival of a marriage should be left to the discretion of the husband and the wife, without any intrusion by the State, the judgment was reserved on August 8.
Activists had cried foul, saying the law treated women as property with no agency of their own to speak of. "That apart, it is a discriminatory command and also a socio-moral one".
In the ADM Jabalpur case, the five-judge bench by a majority verdict of 4:1, had arrived at the conclusion that Article 21 is the sole repository of all rights to life and personal liberty and when suspended, takes away those rights altogether.
In simple words, adultery is defined as a person having sex with a man's wife without taking prior consent from the husband.
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"Married women are not a special case for the objective of prosecution for adultery".
The Impugned Provisions violate Article 15 of the Constitution of India and can not be accorded any protection under Article 15 (3).
The law was challenged in front of the court on the grounds that it was arbitrary and discriminated against women, as they could not file a complaint or be held liable under the archaic law. But, in a turn of events, the Supreme Court of India unanimously ruled to remove the 158-year old law from the Indian Penal Code (IPC).
There will be breakdown of marriage and the future of children born from such marriages will be affected. Defined under Section 497 of the IPC, adultery law came under sharp criticism for treating women as possessions rather than human beings.
With the supreme court striking the section 497 of the IPC, the announcement has been receiving a mixed reaction.
However, the court clarified that if an act of adultery leads the partner to commit suicide, the adulterous wife or husband could be prosecuted for abetment of suicide under Section 306 of the IPC. This would mean that suicide cases in marital disputes will increase now.
As the SC said: "In case of adultery, criminal law expects people to be loyal, which is a command which gets into the realm of privacy".
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.