A Constitution bench of the Supreme Court on Thursday unanimously declared that Section 497 of the Indian Penal Code, according to which adultery is a criminal offence, is unconstitutional. The court also struck down part of Section 198 of the Criminal Procedure Code dealing with adultery, LiveLaw reported.
The five-judge Constitution bench comprising Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra had reserved the verdict in August on a petition seeking to make men and women equally liable for adultery.
Section 497 is a Victorian provision of the Indian Penal Code, which says: “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery and shall be punished.”
“It is time to say husband is not the master,” said Dipak Misra, who read the judgement on behalf of himself and AM Khanwilkar. “Legal sovereignty of one sex over another is wrong.”
The chief justice said Section 497 was absolutely manifestly arbitrary, Live Law reported. “Any system or law which affects individual dignity of women in a civilised society invites the wrath of the Constitution,” he added. “Adultery can be a ground for divorce but not a criminal offence.” He said Section 497 affects the right to life of a woman under Article 21 of the Constitution.
“Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage,” Misra said, according to Bar & Bench.
Adultery is not a criminal offence in China, Japan and in many western countries, Misra pointed out. “Women cannot be asked to think and do according to the will of society,” he added. The chief justice said mere adultery cannot be a crime “unless it attracts the scope of Section 306”, which deals with abatement to suicide. “Thinking of adultery as a criminal offence is a retrograde step.”
“Ancient notions of man being perpetrator and woman being victim no longer hold good,” said RF Nariman. “A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down.”
DY Chandrachud also concurred with the other judges, saying the law destroys women’s dignity and deprives them of agency, autonomy and dignity. “The law on adultery is but a codified rule of patriarchy,” he added. “Autonomy is intrinsic in dignified human existence, Section 497 denuded the woman from making choices. Section 497 based on women as chattel, seeks to control sexuality of woman.”
Chandrachud went on to say that sexuality cannot be disassociated from human personality. “For, to be human involves the ability to fulfil sexual desires in the pursuit of happiness,” he added. “Autonomy in matters of sexuality is thus intrinsic to a dignified human existence.”
Indu Malhotra, who was the last to read out her judgement, said the law institutionalises discrimination. “Adultery could be a moral wrong towards spouse and family but question is whether it should be a criminal offence?” she asked.
On August 8, the court asked the Centre “what public good” the law on adultery serves as adultery is not an offence if a woman’s husband approves of such a relationship.
The Centre had argued that adultery is designated as an offence keeping in mind the sanctity of marriage as an institution. Additional Solicitor General Pinky Anand, appearing for the Centre, had said the judgement of foreign jurisdictions that have set aside adultery as a criminal offence should not be taken into account. The matter should be decided on the basis of social conditions in India, she argued.
The top court previously said allowing sexual intercourse with only the consent of a woman’s husband “is an indication of treating wife as husband’s chattel”. Justice Indu Malhotra had called it absurd while Justice RF Nariman had said the provision “fails the test of arbitrariness”.
The petitioner, Joseph Shine, had argued that Section 497 discriminates against men. “When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability,” Shine said.