Treating adultery as crime would be retrograde step: CJI Misra

Adultery was not being treated as a crime in several countries and it would be a "retrograde step" to retain it in the Indian Penal Code, Chief Justice of India Dipak Misra said on Thursday.

The CJI, who wrote a separate but concurring judgement for himself and Justice A M Khanwilkar, said treating adultery as an offence would lead to punishing people who are already unhappy in their married life.

The judge said that adultery stood on a different footing from other crimes connected to marital life, like dowry demand, domestic violence or non-grant of maintenance, as there was no third party involvement in these.

"It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences," said the judgement, penned by CJI and endorsed by the other four members of the five-judge Constitution bench.

"In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide. The said activities deserve to be punished and the law has rightly provided so," it said.

It also noted that adultery as a crime was "no more prevalent" in People's Republic of China, Japan, Australia, Brazil and many western European countries.

The bench said treating adultery as an offence would lead to punishing people who are unhappy in marital relationships.

It said any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not.

"A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness," the bench said.

Concluding its separate but concurring decision, the bench said that thinking of adultery from the point of view of criminality "would be a retrograde step".

"This court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law," it said.