New Delhi: The Supreme Court on Friday struck down the 158-year-old colonial-era Section 497 of the Indian Penal Code, which criminalised adultery, as unconstitutional, saying it violated a woman’s right to dignity, which resulted in infringement of Article 21 of the Constitution.
Since the provision was struck down by a five-judge Constitution Bench of Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Kanwilkar, D.Y. Chandrachud and Indu Malhotra, adultery is no longer a criminal offence in India, in which only the man and not the woman was punished. While the CJI delivered the main judgment, Justices Nariman, Chandrachud and Indu Malhotra gave concurring verdicts.
Section 497 IPC, a Victorian era provision, mandates that “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 to the offence of rape, is guilty of the offence of adultery and shall be punished”.
Adultery, according to the provision, is the consensual sexual intercourse between a married woman and an individual who is not her spouse, or between a married man and a woman who is not his wife. But it is not an offence if the sexual act is done with the consent or connivance of the husband.
The CJI, writing the main judgment for himself and Justice Kanwilkar, said: “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It is manifestly arbitrary and it is time to say that a husband is not the master of his wife. Legal sovereignty of one sex over the other sex is wrong.” Section 497, he concluded, is “manifestly arbitrary”.
He said what might be acceptable at one point of time may melt into total insignificance at another point of time. However, it should be noted that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts.
The CJI said treating adultery as an offence would be tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife.
The CJI said in either situation, the whole scenario is extremely private. Adultery does not fit into the concept of a crime. If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout, and also makes the adulterer the culprit.
When the parties to a marriage lose their moral commitment, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle.
The CJI said the theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. If the act is treated as an offence and punishment is given, it would tantamount to punishing people who are unhappy in marital relationships.
The CJI noted that adultery, as a crime, is no longer prevalent in the People’s Republic of China, Japan, Australia and several other countries. He held that Section 497 IPC was unconstitutional and adultery should not be treated as an offence. In view of this, he said, it is appropriate to declare Section 198 CrPC, which deals with the procedure for filing a complaint in relation to the offence of adultery, as unconstitutional. When the substantive provision goes, the procedural provision has to take the same path, he said, and overturned the 1985 verdict which had upheld that section.
Justice Rohinton Nariman, in his judgment, stated that Section 497 was an archaic provision, which had lost its rationale. “Ancient notions of man being the perpetrator and woman being the victim of adultery no longer holds good,” he observed. It treats women as chattel, and has chauvinistic undertones, he added.
Justice Chandrachud, in his separate but concurring opinion, said Section 497 was destructive to a woman’s dignity. “Autonomy is intrinsic in dignified human existence. Section 497 denuded the woman from making choices,” he said.
Justice Indu Malhotra said Section 497 was based on the Doctrine of Coverture, which holds that a woman loses her identity and legal rights with marriage, which was violative of her fundamental rights. “This doctrine is not recognised by the Constitution,” she added.
