A five-judge bench of Chief Justice Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra said unequal treatment of women invites the wrath of the Constitution.
Under the 158-year-old adultery law, known as section 479, a man could be imprisoned for up to five years for engaging in sexual relations with a married woman without the consent of her husband.
Over the last 10 years, he lost custody of his child, was sacked from two jobs and suffered huge mental trauma after his wife registered a case against him on charges of adultery.
CJI Dipak Misra said adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage.
By exonerating wives of adultery if done with the consent of their husbands, it discriminates against women, and amounts to "institutionalized discrimination", the petition said.
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During the hearing, the SC had observed, "Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim".
However, India is largely a conservative country where Hindu identity is considered by majority as necessary to national identity. The Section created an arbitrary classification between an aggrieved husband vis-à-vis an aggrieved wife.
"Totally disagree with the Supreme Court judgement on adultery".
Dixit and Ramesh welcomed it, but some "wronged husbands" said the verdict has washed away many years of their work.
In his 45-page petition, Shine liberally quotes from American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary General Kofi Annan on gender equality and the rights of women.
Like Chaitanya Gowda, who claimed his wife was having an affair and he had been collecting evidence against her and her lover for the last eight years.
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If "traditions", "cultural morality", "religion", etc., say otherwise, they should be disregarded.
If adultery is not a crime, how is this woman even going to file a case against the husband who might desert or abandon her.
Justice Chandrachud, who has been in the news for being the lone voice of dissent in September 26's Aadhaar verdict, struck all the right notes when he said: "Section 497 deprives a woman of agency and autonomy and dignity..."
The CJI and Justice Khanwilkar said: "We declare Section 497 IPC and Section 198 of CrPC dealing with the prosecution of offences against marriage as unconstitutional".
However, doubting the object of Section 497 to safeguard the sanctity of marriage, Chandrachud had said: "Fidelity does not apply to a married man if he engages in extra-marital sex with a single woman?"
The son had done it in August previous year too when he had over-ruled another of his father's judgment while delivering the verdict on the issue of privacy.
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