Adultery is no longer a crime, but it will continue to be grounds for divorce.
A petition had come before the Supreme Court seeking a ban on the legal practise by sitting Members of Parliament and other legislators.
Adultery was punishable by a maximum five years in jail or fine or both.
People belonging to the lesbian, gay, bisexual and transgender community celebrate after the Supreme Court's verdict decriminalizing gay sex, at an NGO in Mumbai on September 6. "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. "We welcome the judgement by the SC striking down the 158yr old law based on Victorian values, in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery".
The judgment was delivered by a Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. Adultery is not a crime if the cuckolded husband connives or consents to his wife's extra-marital affair.
It also said that adultery, while valid grounds for divorce, was a private matter.
"Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage", Misra said, according to Bar & Bench.
Justice Chandrachud said autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of past. Section 497 under the IPC implied that a woman's body is not her own and, on a whole, it denied women: 1. the right to her body in the form of agency, autonomy and independence; and 2. the object of desire and sexual autonomy. "The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife", the affidavit said.
In a concurring but separate judgement, the CJI and Justice Khanwilkar said that "a husband is not the master" and any system treating a woman with indignity, inequity and inequality or discrimination "invites the wrath of the Constitution". Needless to add, the heteronormative nature of the Section 497 was a gaping loophole willfully exploited by married and unfaithful men to the detriment of their wives. "Thus analysed, we think it appropriate that the earlier judgments require to be reconsidered with regard to social progress, shift in perception, gender equality and gender sensitivity", CJI Misra had said.
In Indonesia's ultraconservative Islamic Aceh province, men and women found guilty of adultery can be whipped 100 times with a cane in public. "The Supreme Court didn't say Triple Talaaq is Unconstitutional but "set it aside "but Apex Court has said 377 & 497 is Unconstitutional will Modi Government learn from these judgments and take back their Unconstitutional Ordinance on Triple Talaaq", he tweeted".
"...where is the "collective good" in Section 497 of IPC?" the court had asked. "Thinking of adultery as a criminal offence is a retrograde step".
Should women be treated as abettors and not victims for the crime of adultery?
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