The court also questioned the Centre's stand of defending the law of adultery, asking the latter "what public good" the penal law served as it provided that no offence would be made if the husband of a woman approves an adulterous relationship. "Any provision treating women with inequality is not constitutional", said the SC. In a previous court hearing, Misra had observed that "adultery can be a ground for divorce".
It was the second legal decision this month reflecting a more liberal outlook in Indian society with the Supreme Court having on September 6 scrapped a ban on gay sex dating back to 1861. The penalty for adultery was up to five years in prison, or a fine, or both. "That is the reason we call it archaic", the Supreme Court said. The Section created an arbitrary classification between an aggrieved husband vis-à-vis an aggrieved wife.
Finally, Justice Malhotra sealed the fate of the provision, questioning the need to make Adultery a criminal offence.
The CJI said adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia. There can't be any social licence which destroys a home, Chief Justice Dipak Misra said.
However, doubting the object of Section 497 to safeguard the sanctity of marriage, Chandrachud had said: "Fidelity does not apply to a married man if he engages in extra-marital sex with a single woman?"
He said his wife slapped a case of adultery against him when he found out about her affair. Adultery can still be grounds for divorce in India, the verdict said, but a criminal penalty violated women's protection to equal rights under the law.
BJP spokesperson Nalin Kohli said, "We have to look at judgments of the Supreme Court with regards to fundamental rights, whether it is equality of either men or women or everyone before the law or it is about right to privacy or it is about freedom of speech and expression".
Section 497 was a patriarchal, regressive piece of legislation that considered a married woman her husband's "property".
Last August, Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law, according to BBC. Legislature has imposed a condition on sexuality of women by making adultery as offence, he said, adding that section 497 is denial of substance of equality. "However, that does not save the provision as being manifestly arbitrary", it said and added that "the rationale of the provision suffers from the absence of logicality of approach". The Supreme Court held that Section 377 of IPC was a weapon to harass members of LGBTQ-plus community resulting in discrimination against them.
Adultery should not be a criminal offence: CJI.
The arguments given in favour of criminalising adultery revolve around the "sanctity" of marriage.
Kirk intensifies back into a Tropical Storm
The fickle storm is forecast to expire yet again after it crosses the islands and heads into the eastern Caribbean. The storm was moving west-northwest at 14 miles per hour and had maximum sustained winds of 50 miles per hour .
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