SC refuses to review decriminalisation of adultery

2018 Constitution Bench judgment, which struck adultery out of the penal statute book, is upheld

June 28, 2020 04:52 pm | Updated 04:58 pm IST - NEW DELHI:

Photo for representational purpose.

Photo for representational purpose.

The Supreme Court has refused to review its 2018 judgment which decriminalised adultery .

A five-judge Review Bench led by Chief Justice of India Sharad A. Bobde upheld a September 2018 Constitution Bench which had struck adultery out of the penal statute book.

Editorial | Not a crime: on Supreme Court's adultery ruling

“We have carefully gone through the review petitions and the connected papers filed therewith. We do not find any ground, whatsoever, to entertain the same. The review petitions are, accordingly, dismissed,” review court said in a short order recently.

The original judgment was by a Constitution Bench led by then chief justice Dipak Misra who found that Section 497 (adultery) of the Indian Penal Code cannot “command” married couples to remain loyal to each other for the fear of penal punishment.

Two individuals may part if one cheats, but to attach criminality to infidelity is going too far, Justice Misra had observed in his separate opinion.

Justice Misra was replaced by Chief Justice Bobde on the Review Bench while the other four judges on the original Bench — R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra — continued on to the Review Bench.

The original judgment in 2018 was based on a writ petition filed a Kerala resident, Joseph Shine, represented by advocate Kaleeswaram Raj.

The court had reasoned that there was no data whatsoever to support claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce.

Section 497 treats a married woman as the commodity of her husband, the Bench had held.

Adultery is not a crime if the cuckolded husband connives or consents to his wife’s extra-marital affair. Section 497 treats a married woman as her husband’s “chattel”. The provision is a reflection of the social dominance of men prevalent 150 years ago.

“Husband is not the master... Obituaries should be written of these historic perceptions,” then chief justice Misra had observed.

The Bench had also held that Section 198 (2) of the CrPC, which gave the cuckolded husband the exclusive right to prosecute his wife’s lover, was manifestly arbitrary.

Adultery can however be a ground for civil remedy like dissolution of marriage, the 2018 verdict had said.

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