While reserving the verdict, a five-bench constitution bench comprising Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Indu Malhotra had on August 8 questioned Central government's stand.
The Supreme Court has decriminalised adultery, striking down a colonial-era law after declaring that it is time to say "husband is not the master" and pressing ahead with a drive for equality that crossed a milestone with the ruling on homosexual relations earlier this month.
Pronouncing his judgment, Chief Justice of India Dipak Misra said the 150-year-old adultery law was "arbitrary" adding that "there can not be a shadow of doubt" that it was a ground for divorce. On the criminal side, mere adultery can not be a crime unless it attracts the scope of Section 306 of the Indian Penal Code relating to abetment of suicide, where the wife's adultery becomes a cause for the husband to kill himself. "We are constrained to think so (strike down the law), as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband".
In January, the four most senior justices held a news conference against Misra, who as chief justice controls the court's roster and decides who will take which cases, listing a litany of problems that they said afflicted the court and risked undermining India's democracy.
The five-judge constitution bench made an important observation on privacy, saying that treating adultery as an offence would tantamount to the State entering into a real private realm.
Currently, the Delhi High Court is hearing a clutch of petitions seeking to criminalise marital rape. "Equality is the governing parameter", the court said. Pronouncing the judgement for himself and Justice Khanwilkar, CJI Misra said, "Section 497 is arbitrary and offends the dignity of women".
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"Diluting adultery laws will impact the sanctity of marriages". Justice Nariman observed that adultery violates Article 14 of the Constitution and can not be treated as an offence. "This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the?licensor, namely, the husband, no offence is committed", Justice Nariman said.
In 2015, South Korea's Constitutional Court struck down an adultery law, sending shares in condom maker Unidus soaring.
The court pointed out how women are being subordinated by the law.
It also did not allow women to file a complaint against an adulterous husband.
The law gave the husband the right to bring charges against his wife's lover but failed to grant a wife power to do the same. In South Korea and Guatemala provisions similar to Section 497 have been struck down by the Constitutional courts of those nations. Adultery is no longer a crime in India though it can be grounds for divorce.