What the lone woman judge on the SC Bench said about adultery

by Garry Watts September 28, 2018, 0:32
What the lone woman judge on the SC Bench said about adultery

Section 198 of the Criminal Procedure Code which laid down who would be an aggrieved person in a case of adultery.

However, adultery is the only provision of IPC in which men and women are treated differently, for one thing.

"A law that perpetuates such patriarchy has no place in the constitution", she said, adding that adultery is a valid ground for divorce, but can not be made a criminal offence.

However, in its ruling, the Supreme Court dismissed concerns that the abolition of the law would result in higher rates of infidelity.

In Somalia, Islamist Shabaab militants often carry out stonings of women for adultery.

Gay sex is considered taboo by many in socially conservative India, and was reinstated as a criminal offence in 2013 after four years of decriminalisation.

And although there is no information on actual convictions under the law, Kaleeswaram Raj, a lawyer for the petitioner, said the adultery law was "often misused" by husbands during matrimonial disputes such as divorce, or civil cases relating to wives receiving maintenance. Earlier the centre had defended the law by stating that- by making adultery not a crime, the sanctity ofmarriage will not be protected. "In a way, you have given an open general license to the people of this country to be in marriages but at the same time have illegitimate relationships", she said.

In Pakistan, it is punishable by up to 25 years in prison while in Bangladesh - both formerly part of British India - men, but not women, can be jailed for five years.

Section 497 was seen as contradictory to Article 14 and 21 of the Indian Constitution.

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Hearing the petition filed by businessman Joseph Shine, the top court, in its August 2 hearing, had said that the adultery law "seems to be pro-women but it is anti-women in a grave ostensible way".

On January 5, the apex court had referred to a five-judge constitution bench the plea challenging the validity of the penal law on adultery.

Prime Minister Narendra Modi's right-wing government told a court past year that it believes criminalising marital rape could destabilise marriages and make men vulnerable to harassment by their wives.

The petitions before the court assert that the exemption of women from punishment for adultery is a patriarchal baggage which treats women as "chattel" having no agency.

"The institution of marriage must be protected". It should be also noted that many countries around the world also do not hold adultery as a crime.

Stability of marriages is not an ideal to be scorned.

Two different panels on law reforms in 1971 and 2003 recommended that women should also be prosecuted for the offence.

Justice Chandrachud said under 497, a married woman is treated as the property of the husband and added that it denudes a woman of making fundamental choice of sexuality.

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