The Supreme Court has reminded a woman that engaging in sexual relations outside of marriage constitutes an offense, even though adultery is no longer a criminal offense in India for the general public. This pronouncement comes in the wake of the decriminalization of adultery in 2018, a landmark decision that struck down Section 497 of the Indian Penal Code (IPC).
Section 497 of the IPC, which had been in place since 1860, criminalized adultery, but only allowed men to be prosecuted for having sexual intercourse with another man's wife without his consent. The law was viewed as discriminatory, treating women as property subordinate to their husbands. In September 2018, a five-judge Constitution bench of the Supreme Court unanimously ruled to repeal Section 497, thereby eliminating it as a criminal offense in India. Chief Justice Dipak Misra stated that adultery could not be a criminal offense but could be a ground for civil issues like divorce. The court clarified that the law violated the right to equality.
Even though adultery is not a crime, it continues to be a ground for divorce under various personal laws in India, including the Hindu Marriage Act, 1955, the Indian Divorce Act, 1869, and the Special Marriage Act, 1954. A spouse can seek a divorce if the other spouse engages in sexual relations outside the marriage. Further, adultery can influence alimony and financial settlements in divorce cases.
The Supreme Court has also addressed the applicability of the decriminalization ruling to military personnel. The Centre argued that the armed forces are a distinct class and should be governed by specific laws, such as the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950. These laws permit punishment for "unbecoming conduct" and violations of "good order and discipline," including adulterous acts. Therefore, while adultery has been decriminalized for the general public, it remains a punishable offense for members of the armed forces.
The ruling emphasizes gender equality and personal liberty, ensuring that women are not treated as victims without agency. The Supreme Court's stance underscores the importance of moral commitment in a marriage, while also recognizing the right to privacy and personal freedom in marital relationships.
