SC judges refer to evolution of law penalising adultery in India

Evolution of an archaic law which criminalised adultery in India found mention in the Supreme Court during Thursday's historic verdict declaring the penal provision as unconstitutional and striking it down.

Justices R F Nariman and Indu Malhotra, who were part of the five-judge constitution bench, discussed in their separate concurring judgements the origin of the now struck-down law in India.

Both the judges have termed Section 497 of the India Penal Code, which was formulated in 1860, as "archaic", with Justice Nariman pointing out that the "real heart" of the provision is disclosed when it says that no offence is committed if adultery happens with the consent or connivance of the husband.

"In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament," Justice Nariman noted, adding that a Hindu man could marry any number of women until 1955.

Justice Malhotra, the lone woman judge in the bench, also pointed out that the Indo-Brahmanic traditions prevalent in India mandated that the chastity of a woman to be regarded as her "prime virtue" which is to be closely guarded to "ensure the purity of the male bloodline".

"The objective was not only to protect the bodily integrity of the woman, but to ensure that the husband retains control over her sexuality, confirming her 'purity' in order to ensure the purity of his own bloodline," Justice Malhotra said.

Justice Nariman said, "It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time."