All India Majlis-E-Ittehadul Muslimeen (AIMIM) president Asaduddin Owaisi raked up the issue of triple talaq, saying the Supreme Court decriminalised sections 377 and 497, but it had just "set aside" the practice of instant divorce among Muslims, and the government made it a penal offence through an ordinance. A five-judge bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said that unequal treatment of women invites the wrath of the Constitution.
Until now, the 158-year-old law instigated under British rule made it an offence for a man to have sex with a married woman without her husband's consent. The Section 497 exempted the wife from punishment and stated that the wife should not be even treated as an abettor.
Adultery as an offence treats a woman as "chattel" and "dents" her individual dignity as it emphasises that the husband's connivance or consent to her extramarital relationship does not result in a crime, wrote Chief Justice of India Dipak Misra on Thursday. The chief justice also said that mere adultery could not amount to a crime, unless it attracted the scope of Section 306 (abetment to suicide) of the IPC. The partners of adulterous married men, meanwhile, did not face equal consequences under the law.
Referring to the inconsistencies in the penal provision, the bench posed that the burden of maintaining the sanctity of marriage rested only with the woman and not the husband. The Allahabad High Court had said that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty.
Adultery can be treated as civil wrong for dissolution of marriage.
The subtext here, of course, is preserving the "unique structure" of patriarchy and the Indian culture of hypocrisy over women's rights, love, sex and morality.
The Apex Court in December a year ago had issued a notice to the Centre asking why a married woman who is equally liable for the offence of adultery with a married man, who is not her husband, be not punished along with the man.
The arguments given in favour of criminalising adultery revolve around the "sanctity" of marriage. Justice Khanwilkar said Section 497 is violative of right to equality and right to equal opportunity to women.
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An unmarried woman, on the other hand, can't be prosecuted for adultery.
The Supreme Court struck down the law Thursday, ruling it retrograde and discriminatory towards women.
The Supreme Court declared Section 497 as unconstitutional.
The petition was brought by Kerala native Joseph Shine, who had urged the top court to re-examine the validity of section 497 owing to its implied gender bias.
Couples can not use adultery as a ground for divorce if they lived together as a couple for six months after the infidelity was known about.
Married women in India face huge pressure to limit contact with men other than their husbands.
The Supreme Court delivered judgments interpreting laws to expand the ambit of fundamental rights.