In 1971, Justice Anna Chandy, India’s first woman High Court judge, as a member of the 42nd Law Commission, had voted for scrapping the Indian Penal Code provision on adultery with the words, “It is the right time to consider whether the offence of adultery, as envisaged in Section 497, is in tune with the present-day notions of a woman’s status within marriage.”
Five more decades were to pass before the Supreme Court breathed life into her prophetic words. Today, she stands vindicated as the Constitution Bench of the Supreme Court, headed by the Chief Justice of India, Justice Dipak Misra, on September 27 unanimously struck down this unjust and gender discriminatory provision of the Indian Penal Code.
By striking down the criminal offence of adultery, the Supreme Court has not rendered adultery legal. It remains a matrimonial fault that entitles the parties to dissolve the marriage on this ground. It has merely ensured that marital fidelity and sexual morality cannot be enforced by using a police whip.
The Constitutional Bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra held that Section 497 violates the right to equality and destroys the dignity of women.
The unequal treatment of women invites the wrath of the Constitution, declared the Chief Justice of India for himself and Justice Khanwilkar. Justice Chandrachud held that autonomy is intrinsic to a dignified human existence. Section 497 prevents women from making choices and held that this provision is a relic from the past.
The section made it a crime for a man to have sexual intercourse with the wife of another, without the other man’s consent. Any man who did so was deemed to be violating the right of the husband. With this offensive section, a woman could not be the perpetrator or the victim of the crime of adultery.
Though the law criminalised only men, in essence, it was anti-women because it treated women as chattel, and gave legal validity to the proprietorial rights of the husband over his wife. It presumed that the body of a woman belongs to her husband after marriage. The provision deemed the wife as a passive being, incapable of making choices about her body or her sexual desires. Framed within the then-prevailing ethos of the Victorian era, the law perceived adultery to be a problem to be tackled between two men, over the body of the woman.
The bench observed that parameters of Fundamental Rights should include the rights of women and that individual dignity is important in a sanctified society. The court felt that the law was against women who had no opportunity to defend themselves in a situation where they are falsely linked to a man on mere suspicion, since a woman could not be made party to the case under Section 497 and had no locus standi.
Equality is essential
Chief Justice Misra while reading out the judgement said: “Equality is the governing principle of a system. A husband is not the master of his wife.” He held that legal subordination of one sex by another is wrong and considered views of Justice Rohinton Nariman on social progression of women in the Triple Talaq case while passing the judgement. Justice Nariman observed that adultery violates Article 14 of the Constitution and cannot be treated as an offence.
Justice Chandrachud ruled that sexuality cannot be constituted as a mere physical attribute and it cannot be disassociated with human psychology. He added that the idea that woman loses her voice and autonomy after entering marriage and autonomy is contrary to a dignified human existence.
It is matter of pride for those of us fighting to defend women’s rights that the Bench had a woman judge on it, the recently appointed Justice Indu Malhotra who held that Section 497 is a clear violation of the fundamental rights granted by the Constitution and there is no justification for the continuation with this archaic provision.
The Bench observed that adultery can only be retained as a civil fault within the matrimonial law and the parties to a marriage can invoke it as a ground for divorce. On the criminal side, mere adultery cannot be a crime unless it attracts the scope of Section 306 of the Indian Penal Code relating to abetment of suicide, where the wife’s adultery becomes a cause for the husband to kill himself. In such a case, both the wife and her partner can be implicated and the partner can be charged with Section 306 read with Section 497 of IPC, the court held.
The realisation that Section 497 violates women’s dignity did not come easily to the Supreme Court. In several of the earlier rulings, the Supreme Court had upheld the validity of this provision, taking a paternalistic view that this section protects women from criminal prosecution.
In a2003, in an extremely short-sighted manner, the Justice V.S. Malimath Committee recommended making the provision gender neutral, suggesting that both men and women should be punished under this section. It failed to take into account the fact that the provision is extremely derogatory towards women.
When marriage is constructed as a patriarchal institution, the woman does not have corresponding control over her husband’s sexuality. Granting the husband additional power to prosecute his wife for adultery, by making the provision gender neutral, would be like rubbing salt to a festering wound.
Even in the present proceedings, the Centre had defended the provision using a deeply flawed argument that it was essential to save the institution of marriage. “Diluting adultery law will impact the sanctity of marriages,” the Centre had stated in an affidavit to the court. “Making adultery legal will hurt marriage bonds.”
It failed to see that the provision does not ensure marital fidelity. It merely protected male privilege. If adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman’s sexuality and bodily integrity gets reinforced.
Flavia Agnes is a women’s rights lawyer.