Justice R F Nariman while agreeing with the CJI and Justice A M Khanwilkar said that Section 497 is archaic provision, which is unconstitutional and hence is being struck down.
The Supreme Court overturned a 158-year-old law which said any man who had sex with a married woman, without the permission of her husband, was guilty of the criminal act of adultery. Justice Indu Malhotra pointed out that there may be cases in which the couple would have been staying separate for decades, waiting for a divorce decree, and the husband could foist a case of adultery on his estranged wife's paramour to trouble her.
"Sunlight is the best disinfectant", said the Supreme Court bench headed by Chief Justice Dipak Misra and ordered live-streaming and video recording of the court proceedings yesterday, September 26. "We are not questioning the legislature's competence to make laws but where is the "collective good" in Section 497 of IPC?"
"The husband is not the master of the wife", said a five-judge bench, unanimously sticking up for gender justice and calling out the Victorian adultery law - Section 497 of the Indian Penal Code - as arbitrary.
Reacting to the judgement, National Commission for Women (NCW) Chairperson, rekha Sharma said, "I welcome this judgement by Supreme Court".
"It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law".
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Women could not file a complaint under the archaic law nor be held liable for adultery themselves, making it exclusively the realm of men. "What is the sanctity of marriage?" she asked.
It was the second time that Justice D Y Chandrachud overruled the verdict of his father, Chief Justice of India Y V Chandrachud, as he gave his order on the issue of adultery on Thursday. So a man can't be prosecuted, by his wife, for having an affair with an unmarried woman.
Experts also say that Section 497 is in contravention to Article 21 of the Constitution, which guarantees a right to life and liberty for all individuals.
Elaborating on this, CJI Misra said, "Parameters of fundamental rights should include rights of women".
The verdict came on a plea filed by Joseph Shine, an Indian citizen working overseas, who challenged the constitutional validity of Section 497 that penalised only a husband for committing adultery.