Recently, the Supreme Court of India has become very enthusiastic to declare the archaic Victorian value influenced laws unconstitutional. In the beginning of this month, the Supreme Court of India decriminalised consensual same sex intimacy between two adults. Following that on 27th of September, the Indian Supreme Court ruled that adultery is not a crime, scrapping an “archaic” law saying that the “husband is not the master of the wife”. The entire judgment relies on the themes of 'constitutional morality', 'individual dignity', 'sexual agency', 'gender parity' and 'transformative vision of constitution'.
While scrapping the archaic provision of law, the Supreme Court said that adultery can no longer be regarded as a crime but it can be, "without a shadow of doubt", a ground of divorce. The Chief Justice said, “adultery might not be the cause of an unhappy marriage; rather it could be the result of an unhappy marriage. Mere adultery can't be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the Indian Penal Code 1860. Thinking of adultery as a criminal offence is a retrograde step. Making adultery a crime is retrograde and would mean punishing unhappy people”.
Previously women who committed adultery got indemnity from law as the law only made the offence punishable for men. It was noted in the judgment that Section 497 treated men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. Additionally, if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. Section 497 is also premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. This section reflected the Victorian value of patriarchal society by objectifying women as the property of men.
Another interesting fact of this judgment is that in 1985, a judgment authored by Justice Yeshwant Chandrachud, father of Justice Chandrachud, in Sowmithri Vishnu v Union of India had upheld the constitutional validity of the section. His own son after 33 years has overruled the judgment in Joseph Shine v Union of India in 2018. It portrays how the social value and constitutional perception changes over time. While overruling his father's judgment, Justice Chandrachud empathetically observed that the realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law.
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