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Supreme Court of India declares criminal offence of adultery to be unconstitutional

Ordinance criminalising triple talaq challenged in court

The Supreme Court of India has declared as unconstitutional legislation, more than 150 years old, that provided that adultery by a married man with a married woman, without the consent of her husband, was a criminal offence. Adultery will remain a ground for divorce.

The Chief Justice of India, Dipak Misra, said that Section 497 of the Indian Penal Code violated the right to equality as it punished only the married man while exonerating the married woman with whom he had been adulterous. The section treated the woman as a chattel of her husband because it was not an offence if her husband consented to the adulterous relationship.

The government had defended the status quo.

For a report in The Times of India, click here.

Meanwhile, a plea challenging the constitutional validity of a recent ordinance –The Muslim Women (Protection of Rights on Marriage) Ordinance – making the practice of instant triple talaq a criminal offence has been filed with the Supreme Court.

Last year the Supreme Court in Delhi declared by a 3:2 majority that triple talaq was "not integral to religious practice and violates constitutional morality".

Law Minister Ravi Shankar Prasad told a press briefing, "The instance of triple talaq has continued unabated," and that the government had recorded 201 such divorces after the Supreme Court struck down the law.

The Indian government issued an executive order on 19 September 2018 bringing an outright ban on "triple talaq" a step closer. It now needs only approval from the president to become law, subject to the proceedings in the Supreme Court.

For a report, in The Times of India, of the later development, click here.