SC dismisses review petitions challenging 2018 verdict on adultery

In September 2018, the Supreme Court had scrapped the 19th century law on adultery calling it arbitrary and offensive to a woman’s dignity.

The Supreme Court said there is no need to revisit its ruling on adultery

The Supreme Court said there is no need to revisit its ruling on adultery.

The Supreme Court has held that its historic decision stubbing out the 158-year old archaic law on adultery from the criminal statute book does not require any reconsideration.null

The decision passed by the Court nearly 20 months ago was challenged in two review petitions. A five-judge Constitution bench heard the matter in chambers and dismissed the same last month. The order passed on May 28 was recently uploaded on the Supreme Court website.

An organization called All Religious Affinity Movement and an individual Ravi Kumar filed separate review pleas seeking recall of the Court’s verdict as it was against the concept of family.

A bench of Chief Justice of India SA Bobde, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra said, “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.”

It was on September 27, 2018 the apex court took a bold decision to scrap Section 497 of the Indian Penal Code that punished adultery. This provision was treated as a relic of the Victorian era as it allowed a husband to prosecute any man who engaged in a consensual sexual relationship with his wife.

The law was challenged by Joseph Shine, an Indian settled abroad, who found it to be archaic, discriminatory and arbitrary. He wondered that if the purpose of the law is to protect the sanctity of family and marriage, the choice should be given to both husband and wife to prosecute their cheating spouse. On the contrary, the provision allowed only the husband to lodge a case of adultery against the other man in his wife’s life. Further, Shine pointed out that provision worked on the concept of husband’s consent. If a husband consents to his wife having sex with a stranger, regardless of the woman’s consent, no case under this section will be made out.

Speaking to HT after the rejection of the review petitions, advocate Kaleeswaram Raj who had argued for Joseph Shine in the Supreme Court, said, “The dismissal of the review petitions is a big boost for the libertarian movement of individual rights across the world. This judgment fenced the State from interfering in individual behaviour that was not criminal in nature.

The then CJI Dipak Misra had said that adultery at best could be a civil or moral wrong that could be a ground to seek divorce. Treating it as an offence would tantamount to the State entering into a private realm, he had said.

Except for former CJI Dipak Misra who has since retired, the remaining four judges who delivered the landmark ruling were part of the bench that heard the review petitions.

Adultery has ceased to be a crime in China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, and Seychelles. It continues to be a crime in countries such as Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, United Arab Emirates, some states of the United States of America, Algeria, Democratic Republic of Congo, Egypt, Morocco, and some parts of Nigeria.null

The five-judge bench was unanimous in its view that the 158-year old law does not square with the Constitutional law of the present times. It was also seen to deprive a woman of her dignity, sexual autonomy as the law treated her to be a property of her husband.

Published by Sneha Vishwakarma

Advocate, Bombay High court.

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