Will this impact and create more divorces: Supreme Court on declares Section 497 as unconstitutional

Adm Desk Sep 28, 2018

A five-judge Constitution bench unanimously held Section 497 of the Indian Penal Code as unconstitutional and struck down the provisions of the law. The bench consisting of Chief Justice Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra declared that Section 497 is unconstitutional. The Chief Justice of India and Justice Khanwilkar remarked that "We declare Section 497 IPC and Section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional.

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The court remarked that the law on adultery violates a woman’s individuality and was clearly arbitrary.

Section 497 of IPC states that- “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery”.

CJI Dipak Misra highlighted that adultery could be used as a ground for divorce by a husband or a wife in matrimonial cases but it is not a criminal offence.

CJI Misra and Justice Khanwilkar also added that adultery may not be a crime but the adulterous actions of a life partner leading to the suicide of a distressed spouse may be considered as an abetment to suicide if supporting evidence is produced. The bench further added that adultery can be considered as a civil wrong for termination of the marriage.

CJI also said that equality is the governing principle of the constitution and that a husband is not the master of the wife. It further added that the beauty of the constitution is that it includes the “I, Me and You,” and the unequal treatment of women in the law requires amendments.

Justice Chandrachud in his statement said that a women does not pledge her sexual autonomy to her husband, post marriage and depriving her of the choice to have consensual sex with anybody outside the marriage cannot be restrained.

Justice Indu Malhotra speaking against the stereotypes said that "The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereo-types in relationships, and institutionalizes discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution,"

However contradicting the statement of Justice Chandrachur, Justice Malhotra said that adultery is morally wrong.

The Centre demanded the Supreme Court to make adultery gender-neutral and keep it on the statute book, but the plea was rejected in order to protect sanctity of the bond of marriage.

This petition against Section 497 IPC was filed by an Italy based NRI Keralite — Joseph Shine — who said that the law was “unjust, illegal and arbitrary and a violation of the citizens’ fundamental rights”.

He challenged a number of aspects in the law. Firstly he questioned the gender bias in the provision drafted by Lord Macaulay in 1860. Secondly, he challenged Section 198(2) of the Criminal Procedure Code which gives provisions to a husband to file charges against the man with whom his wife committed adultery.

The progress of the case has led to a phenomenal result. Recently with the Section 377 of the IPC being struck down and now this phenomenal decision it seems that the judiciary is progressing with the new ideologies and understanding the reforms required in the several areas of the society. A special emphasis is also being given on the fundamental rights of the individuals and efforts are being made to provide the same to the citizens of the country without any loopholes.

Will this verdict lead to an increase in the divorce rates in India?

Legally, adultery may not be a crime anymore but in the social system it is indeed a huge morally condemning crime. In a country like ours where marriage is considered as a holy and divine bond, even if the act is repealed, the society is not very likely to accept it. It may not be a criminal offence but it may lead to divorces.

As per the Supreme Court the verdict will provide equal sexual independence rights to a woman and allow her to have consensual sex outside the marriage, this implies to the freedom of women and is completely based on the morals of an individual.

It is more a moral question than a legal one. Such acts have been prevalent in the society and leave unreported even to the family itself, leading straight to a divorce. Hence the act surely does not promise any fall in the divorce rate due to extramarital affairs but neither does it promote such acts.

So we must welcome a law that breaks the stereotypes and offers gender equality. Speaking of the divorces rates in the future, it will and has completely been dependent on the psychology of humans and how they value a relationship. No law abides them or frees them from their moral doings.

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