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SC Strikes Down 158 Year Old Adultery Law Under Section 497 IPC
It’s official now that the Supreme Court which is the highest court in India has now finally in the landmark case titled Joseph Shine v Union of India in Writ Petition (Criminal) No. 194 of 2017 delivered on September 27, 2018 struck down the 158 year old most discriminatory and most reprehensible law of adultery under Section 497 of the Indian Penal Code! The 5 Judges who delivered this landmark judgment include CJI Dipak Misra, Justices Rohinton F Nariman, Dr DY Chandrachud, AM Khanwilkar and Indu Malhotra. It declared that adultery can be a ground for civil issues including dissolution of marriages but it cannot be a criminal offence. It invalidated the Section 497 of IPC as a violation of Articles 14 and 15 and under Article 21 of the Constitution of India! Very rightly so!
Even though it is a bit too late but let us not forget the old adage which preaches that, “It is better to be late than never”! One can only shake one’s head in disbelief that how can such a discriminatory, degrading and disastrous law continue for so long? But it is a reality that it has happened in India since last 158 years and has been operating continuously for such a long time just like Section 377 of IPC which just recently in another landmark judgment titled Navtej Johar v Union of India has been decriminalized where sex is consensual between two consenting adults!
What is most heartening to note is that all the Five Judges of Apex Court who delivered this landmark judgment were united in striking down the 158 year old adultery law under Section 497 of IPC! CJI Dipak Misra authored the judgment for himself and Justice AM Khanwilkar. CJI Dipak Misra rightly said that, “Section 497 (adultery) of the Indian Penal Code ‘commands’ married couples to ‘remain loyal to each other’. Two individuals may part if one cheats, but to attach criminality to infidelity is going too far. Besides, there is no data to back claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce. How married couples deal with adultery is “absolutely a matter of privacy at its pinnacle”.” Justice RF Nariman wrote a separate judgment to concur with the judgments of CJI Dipak Misra and Justice AM Khanwilkar stating explicitly that Section 497 was an archaic provision which had lost its rationale. Justice Dr DY Chandrachud in his separate but concurring opinion said that Section 497 was destructive to woman’s dignity. Justice Indu Malhotra too in her judgment noted that the Section institutionalized discrimination! This can never be justified thus under any circumstances! Senior counsel Meenakshi Arora and Advocates Kaleeswaram Raj and Sunil Fernandes appeared on behalf of the petitioners, while the Centre was represented by Additional Solicitor General Pinky Anand. Centre opposed the petition while maintaining that adultery should remain a criminal offence and said that diluting adultery laws will adversely impact the sanctity of marriages but not a single Judge of the 5 Judges Bench of the Supreme Court who delivered this landmark judgment delivered a dissenting judgment and they were all unanimous that Section 497 IPC must be decriminalized! This is great!
Before moving on with what the judgment postulates, it would be imperative to first understand that what this Section suggests. It treats women as property of husband and husband alone has the unfettered right to initiate action against any person for adultery. Not just this, the Section also exempts any men from punishment if the women has relationship with him with the consent of her husband! What nonsense is this!
What is worse is that this Section just does not treat women as normal person and exempts her from any punishment as if she just does not understand anything what she is doing when she decides to have sex with some men other than her husband and punishes men alone for adultery thus placing men on superior position which is certainly not the case! Is women insane? Is women mad that she does not understand anything? Women is not inferior to men in anyway! This law could be justified in 18th century when the IPC was enacted but not in the 21st century when women are competing with men equally and even leaving them behind in many fields! When women can be punished for theft, cheating and other trivial offences then why not for adultery?
Does she not understand anything when she decides to enter into an adulterous relationship? Why she alone should be given a blank cheque to enter into an adulterous relationship and why should men alone go to jail even though it is the married women who entices him for having adulterous relationship? Either both men and women should be punished as we see in Jammu and Kashmir under the Ranbir Penal Code operating there or there should be no punishment at all! The Apex Court has very rightly opted for the latter and has justified it in its 243 page landmark judgment delivered here!
It would be relevant to mention here that Justice Dr DY Chandrachud in para 23 of his judgment in this landmark case rightly points out that, “In its 156th Report, the Law Commission made a proposal which it believed reflected the “transformation which the society has undergone,” by suggesting removing the exemption from liability for women under Section 497. (Law Commission of India, 156th Report: Indian Penal Code [1997] at page 172). In 2003, the Justice Malimath Committee recommended that Section 497 be made gender-neutral, by substituting the words of the provision with “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery. (Report of the Committee on Reforms of Criminal Justice System [2003], at page 190). The Committee supported earlier proposals to not repeal the offence, but to equal liability for the sexes:
The object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).
Neither the recommendations of the Law Commission nor those of the Malimath Committee have been accepted by the Legislature.” Fair to ask: Why? Only Legislature knows or God knows! Now what is the point in blaming judiciary for stepping in? The Legislature has miserably failed to act as per the recommendations of the Law Commission of India and the report of Justice Malimath Committee! So what option had the judiciary but to step in and act!
It is noteworthy that it was an Italy based NRI named Joseph Shine who first threw the gauntlet and challenged in 2017 the colonial and archaic provision that prescribes a jail term of up to five years or fine or both, terming it “unjust, illegal and arbitrary and violative of citizens fundamental right.” He very rightly questioned the gender bias in the provision drafted by Lord Macaulay in 1860. He also challenged Section 198(2) of the Code of Criminal Procedure which allows a husband only to bring charges against the man with whom his wife committed adultery! A recent nine-Judge Constitution Bench verdict in Justice KS Puttaswamy (retd) v Union of India (2018) was also invoked that declared right to privacy as a fundamental right under Article 21 of the Constitution and also held that, “Sexual privacy is an integral part of right to privacy”.
“Any provision of law affecting individual dignity and equality of women invites wrath of Constitution. It’s time to say that husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong”, read out Chief Justice of India Dipak Misra from the judgment written for himself and Justice AM Khanwilkar. The judgment very rightly held Section 497 to be “manifestly arbitrary”! Who can deny or dispute this?
At the very outset, this landmark judgment authored by CJI Dipak Misra for himself and Justice AM Khanwilkar begins on a happy and robust note exclaiming that, “The beauty of the Indian Constitution is that it includes ‘I’ ‘you’ and ‘we’. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written. It is advisable to remember what John Stuart Mill had observed:-
“The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other” [ On the Subjection of Women, Chapter 1 (John Stuart Mill 1869)].
We are commencing with the aforesaid prefatory note as we are adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).”
To be sure, it is rightly stated in para 41 that, “From the aforesaid analysis, it is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis is on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution.”
Going forward, it is rightly emphasized in para 42 that, “Another aspect needs to be addressed. The question we intend to pose is whether adultery should be treated as a criminal offence. Even assuming that the new definition of adultery encapsules within its scope sexual intercourse with an unmarried woman or a widow, adultery is basically associated with the institution of marriage. There is no denial of the fact that marriage is treated as a social institution and regard being had to various aspects that social history has witnessed in this country, the Parliament has always made efforts to maintain the rights of women. For instance, Section 498-A IPC deals with husband or relative of husband of a woman subjecting her to cruelty. The Parliament has also brought in the Protection of Women from Domestic Violence Act, 2005. This enactment protects women. It also enters into the matrimonial sphere. The offences under the provisions of the said enactment are different from the provision that has been conceived of under Section 497 IPC or, for that matter, concerning bringing of adultery within the net of a criminal offence. There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage. But the pivotal question is whether it should be treated as a criminal offence. When we say so, it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty. We are not commenting on any kind of ideal situation but, in fact, focusing on whether the act of adultery should be treated as a criminal offence. In this context, we are reminded of what Edmund Burke, a famous thinker, had said, “a good legislation should be fit and equitable so that it can have a right to command obedience”. Burke would like to put it in two compartments, namely, ‘equity’ and ‘utility’. If the principle of Burke is properly understood, it conveys that laws and legislations are necessary to serve and protect a good life.”
While craving for the exclusive indulgence of esteemed readers, it must be informed here that para 49 very rightly observes that, “We have referred to the aforesaid theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery as an offence, we are disposed to think, would 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. Presently, the provision is reflective of a tripartite labyrinth. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences. We are absolutely conscious that the Parliament has the law making power. We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. Let it be clearly stated, by no stretch of imagination, one can say, that Section 498-A or any other provision as mentioned hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide. The said activities deserve to be punished and the law has rightly provided so.”
For esteemed readers exclusive indulgence, it must also be informed here that it is underscored in para 53 that, “In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite.”
It would be apposite to mention here that in para 54, the Apex Court rightly points out that, “We may also usefully note here that adultery as a crime is no more prevalent in People’s Republic of China, Japan, Australia, Brazil and many western European countries. The diversity of culture in those countries can be judicially taken note of. Non-criminalisation of adultery, apart from what we have stated hereinabove, can be proved from certain other facets. When the parties to a marriage lose their moral commitment of the relationship, 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 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. The issue that requires to be determined is whether the said ‘act’ should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness.”
Taking this argument forward, para 55 while referring to England and also the international perspective points out that, “In this regard, another aspect deserves to be noted. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law.”
Now let us come to the last three concluding paras of this landmark judgment delivered by CJI Dipak Misra for himself and Justice AM Khanwilkar. In para 56, it says “As we have held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, 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 pave the same path.”
Going ahead, in para 57 it is then observed that, “In view of the foregoing analysis, the decisions in Sowmithri Vishnu (supra) and V Revathi (supra) stand overruled and any other judgment following precedents also stands overruled. Last but not the least, it is then held in para 58 that, “Consequently, the writ petition is allowed to the extent indicated hereinbefore.”
As it turned out, Justice RF Nariman in his concurring opinion points out notably in para 7 that, “In England, Section LIX of the Divorce and Matrimonial Causes Act, 1857 abolished the common law action for criminal conversation while retaining by Section XXXIII of the same Act, the power to award the husband damages for adultery committed by the wife. This position continued right till 1923, when the Matrimonial Causes Act, 1923 made adultery a ground for divorce available to both spouses instead of only the husband. The right of a husband to claim damages for adultery was abolished very recently by the Law Reforms (Miscellaneous Provisions) Act, 1970. [Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970.”
To say the least, in para 8, Justice Nariman further goes on to say that, “In the United States, however, Puritans who went to make a living in the American colonies, carried with them Cromwell’s criminal law, thereby making adultery a capital offence. Strangely enough, this still continues in some of the States in the United States. The American Law Institute, however, has dropped the crime of adultery from its Model Penal Code as adultery statutes are in general vague, archaic, and sexist. None of the old reasons in support of such statutes, namely, the controlling of disease, the preventing of illegitimacy, and preserving the traditional family continue to exist as of today. It was also found that criminal adultery statutes were rarely enforced in the United States and were, therefore, referred to as “dead letter statutes”. This, plus the potential abuses from such statutes continuing on the statute book, such as extortion, blackmail, coercion etc were stated to be reasons for removing adultery as a crime in the Model Penal Code. (Linda Filts Mischler, supra n. 12, 23-25)
Truth be told, it is rightly pointed by Justice Nariman in para 19 that, “International trends worldwide also indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws. Thus, adultery continues to be a criminal offence in Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, United Arab Emirates, some states of the United States of America, Algeria, Democratic Republic of Congo, Egypt, Morocco, and some parts of Nigeria. On the other hand, a number of jurisdictions have done away with adultery as a crime. The People’s Republic of China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, Seychelles etc. are some of the jurisdictions in which it has been done away with. In South Korea and Guatemala, provisions similar to Section 497 have been struck down by the constitutional courts of those nations.”
Needless to say, it is rightly explained by Justice Nariman in para 21 that, “Coming back to Section 497, it is clear that in order to constitute the offence of adultery, the following must be established:
(i) Sexual intercourse between a married woman and a man who is not her husband;
(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;
(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;
(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.”
It is also material to note what Justice Nariman says in para 22. He says “What is apparent on a cursory reading of these ingredients is that a married man, who has sexual intercourse with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery. The consent of the woman committing adultery is material only for showing that the offence, namely, rape.”
More importantly, while stating the background in which Section 497 was enacted, para 23 then states that, “The background in which this provision was enacted now needs to be stated. In 1860, when the Penal Code was enacted, the vast majority of the population of this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955. It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-56, with the advent of the “Hindu Code”, so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for divorce in Hindu Law.
Further, the real heart of this archaic law discloses itself when consent or connivance of the married woman’s husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the “licensor”, namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has ‘seduced’ her, she being his victim. What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary. That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1, as follows:
“101. ……..Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”
Now coming to para 25, it minces no words in saying that, “The aforesaid provision is also discriminatory and therefore, violative of Articles 14 and Article 15(1). As has been held by us hereinabove, in treating a woman as chattel for the purposes of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well. Section 198, CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence. Consequently, Section 198 has also to be held constitutionally infirm.”
Now coming to para 26, it dwells on the landmark ruling in Justice KS Puttaswamy (Retd) and Anr v Union of India and Ors (2017) 10 SCC 1 and pointed out that, “The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution. 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 on this ground also.”
To put it succinctly, Justice Nariman then laudably goes on to observe in para 27 that, “When we come to the decision of this Court in Yusuf Abdul Aziz (supra), it is clear that this judgment also does not in any manner, commend itself or keep in tune with the modern constitutional doctrine. In any case, as has been held above, its ratio is an extremely limited one as it upheld a wife not being punishable as an abettor which is contained in Section 497, IPC. The focus on whether the provision as a whole would be constitutionally infirm was not there in the aforesaid judgment.
At this stage, it is necessary to advert to Chief Justice Chagla’s foresight in the Bombay High Court judgment which landed up in appeal before this Court in Yusuf Abdul Aziz’s (supra) had stated that since the underlying idea of Section 497 is that wives are properties of their husbands, Section 497 should not find a place in any modern Code of law, and is an argument in favour of doing away with Section 497 altogether. The day has long since arrived when the Section does, in fact, need to be done away with altogether, and is being done away with altogether.”
Finally and most importantly, Justice RF Nariman then concludes his landmark judgment by saying in para 28 that, “In Sowmithri Vishnu (supra), this Court upheld Section 497 while repelling three arguments against its continuance, as has been noticed hereinabove. This judgment also must be said to be swept away by the tidal wave of recent judgments expanding the scope of the fundamental rights contained in Articles 14, 15 and 21. Ancient notions of the man being the seducer and the woman being the victim permeate the judgment, which is no longer the case today. The moving times have not left the law behind as we have just seen, and so far as engaging the attention of law makers when reform of penal law is undertaken, we may only hasten to add that even when the CrPC was fully replaced in 1973, Section 198 continued to be on the statute book. Even as of today, Section 497 IPC continues to be on the statute book. When these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law, cessante ratione legis, cessat ipsa lex, apply to interdict such law, but when such law falls foul of constitutional guarantees, it is this Court’s solemn duty not to wait for legislation but to strike down such law. As recently as in Shayara Bano (supra), it is only the minority view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to change legislatively by way of social reform. The majority view was the exact opposite, which is why Triple Talaq was found constitutionally infirm and struck down by the majority. Also, we are of the view that the statement in this judgment that stability of marriages is not an ideal to be scorned, can scarcely be applied to this provision, as we have seen that marital stability is not the object for which this provision was enacted. On all these counts, therefore, we overrule the judgment in Sowmithri Vishnu (supra). Equally, the judgment in V. Revathi (supra) which upheld the constitutional validity of Section 198 must, for similar reasons, be held to be no longer good law. We, therefore, declare that Section 497 of the Indian Penal Code 1860 and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1) and 21 of the Constitution of India and are, therefore, struck down as being invalid.”
As things stand, it is rightly pointed by Justice Dr DY Chandrachud in para 23 that, “Though women are exempted from prosecution under Section 497, the underlying notion upon which the provision rests, which conceives of women as property, is extremely harmful. The power to prosecute lies only with the husband (and not to the wife in cases where her husband commits adultery), and whether the crime itself has been committed depends on whether the husband provides “consent for the allegedly adulterous act”.”
Not stopping here, Justice Chandrachud also rightly says in para 32 that, “Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering up on marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision.” How can this be allowed? But it has been operating since last 158 years continuously! Most shameful!
Taking his landmark judgment forward, Justice Chandrachud then goes on to say in para 35 that, “The hypothesis which forms the basis of the law on adultery is the subsistence of a patriarchal order. Section 497 is based on a notion of morality which fails to accord with the values on which the Constitution is founded. The freedoms which the Constitution guarantees inhere in men and women alike. In enacting Section 497, the legislature makes an ostensible effort to protect the institution of marriage. ‘Ostensible’ it is, because the provision postulates a notion of marriage which subverts the equality off spouses. Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled to take decisions in accordance with his and her conscience and each must have the ability to pursue the human desire for fulfillment. Section 497 is based on the understanding that marriage submerges the identity of the woman, it is based on a notion of marital subordination. In recognising, accepting and enforcing these notions, Section 497 is inconsistent with the ethos of the Constitution. Section 497 treats a woman as but a possession of her spouse. The essential values on which the Constitution is founded – liberty, dignity and equality – cannot allow such a view of marriage. Section 497 suffers from manifest arbitrariness.”
Of course, Justice Chandrachud in para 46 rightly lashes out at Section 497 IPC saying that, “Section 497 rests on and perpetuates stereotypes about women and sexual fidelity. In curtailing the sexual agency of women, it exacts sexual fidelity from women as the norm. It perpetuates the notion that a woman is passive and incapable of exercising sexual freedom. In doing so, it offers her ‘protection’ from prosecution. Section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The provision is grounded in and has a deep social effect on how society perceives the sexual agency of women. In reinforcing the patriarchal structure which demands her controlled sexuality. Section 497 purports to serve as a provision envisaged for the protection of the sanctity of marriage. In the context of a constitutional vision characterized by the struggle to break through the shackles of gender stereotypes and guarantee an equal citizenship. Section 497 entrenches stereotypes and stereotypes and existing structures of discrimination and has no place in a constitutional order.”
Finally and most importantly, Justice Dr DY Chandrachud in the last para 67 of this landmark judgment sums up by saying that, “Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster.
We hold and declare that:
1) Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the Constitution;
2) Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution;
3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution; and
4) Section 497 is unconstitutional. The decisions in Sowmithri Vishnu and Revathi are overruled.
Simply put, Justice Indu Malhotra who was the only women Judge among all the five Judges who delivered this landmark judgment points out in para 3 that, “The word adultery derives its origin from the French word ‘avoutre’ which has evolved from the Latin verb ‘adulterium’ which means “to corrupt”. The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as adultery.
This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the ‘property’ of her husband; and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an ‘abettor’, even though the relationship was consensual.”
It is most remarkable to note what Justice Indu Malhotra notes in para 11 of her judgment. It says “Section 497 of the I.P.C. it is placed under Chapter XX of “Offences Relating to Marriage”.
The provision of Section 497 is replete withj anomalies and cincongruities, such as:
i. Under Section 497, it is only the male-paramour who is punishable for the offence of adultery. The woman who is pari-delicto with the adulterous male, is not punishable, even as an ‘abettor’.
The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery.
ii. The Section only gives the right to prosecute to the husband of the adulterous wife. On the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his paramour.
iii. Section 497 I.P.C. read with Section 198(2) of the Cr.P.C. only empowers the aggrieved husband, of a married wife who has entered into the adulterous relationship to initiate proceedings for the offence of adultery.
iv. The act of a married man engaging in sexual intercourse with an unmarried or divorced woman, does not constitute ‘adultery’ under Section 497.
v. If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery.
The anomalies and inconsistencies in Section 497 as stated above, would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory.
No less remarkable is para 12 in which Justice Indu points out elegantly and effectively that, “The constitutional validity of section 497 has to be tested on the anvil of Article 14 of the Constitution.
12.1 Any legislation which treats similarly situated persons unequally or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination.
12.2. Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is permissible if two conditions are satisfied:
i. The classification is made on the basis of an ‘intelligible differentia’ which distinguishes persons or things that are grouped together and separates them from the rest of the group; and
ii The said intelligible differentia must have a rational nexus with the object sought to be achieved by the legal provision.
The discriminatory provisions in Section 497 have to be considered with reference to the classification made. The classification must have some rational basis, or a nexus with the object sought to be achieved. [E.V. Chinnaiah v. State of A.P. (2005) 1 SCC 394 (A legislation may not be amenable to a challenge on the ground of violation of Article 14 of the Constitution if its intention is to give effect to Articles 15 and 16 or when the differentiation is not unreasonable or arbitrary)].
With respect to the offence of adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved.
Section 497 of the I.P.C. makes two classifications:
i. The first classification is based on who has the right to prosecute:
It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person given the right to prosecute for the offence of adultery.
Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour.
ii. The second classification is based on who can be prosecuted.
It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an “abettor” to the offence.
The aforesaid classification were based on the historical context in 1860 when the I.P.C. was enacted. At that point of time, women had no rights independent of their husbands, and were treated as chattel or ‘property’ of their husbands.
Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a ‘theft’ of his property, for which he could proceed to prosecute the offender.
The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone.
12.3. A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14.
Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.”
Interestingly enough, in para 13, it is then pointed out by Justice Indu that, “A law which could have been justified at the time of its enactment with the passage of time may become outdated and discriminatory with the evolution of society and changed circumstances. [Motor General Traders v. State of Andhra Pradesh (1984) 1 SCC 222; See also Ratan Arya v. State of Tamil Nadu, (1986) 3 SCC 385]. What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic.
A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality. [John Vallamattom v. Union of India (2003) 6 SCC 611].
Section 497 of the I.P.C. was framed in the historical context that the infidelity of the wife should not be punished because of the plight of women in this country during the 1860’s. Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals. [A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q]. This situation is not true 155 years after the provision was framed. With the passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change. The historical background in which Section 497 was framed, is no longer relevant in contemporary society.
It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a ‘victim’, and the male offender is the ‘seducer’.
Section 497 fails to consider both men and women as equally autonomous individuals in society.”
In the same vein, it is then further emphasized by Justice Indu Malhotra in the same para 13 that, “The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.
There is therefore, no justification for continuance of Section 497 of the I.P.C. as framed in 1860, to remain on the statute book.”
It cannot be lost on us that in para 14, it is then clearly and convincingly held by Justice Indu Malhotra that, “Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favour of women and children, to protect and uplift this class of citizens.
Section 497 is a penal provision for the offence of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.
The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as ‘beneficial legislation’.
This Court in Thota Sesharathamma and Anr. V. Thota Manikyamma (Dead) by Lrs. And Ors. (1991) 4 SCC 312 held that:
“Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special provision to accord to women socio-economic equality. As a fact Art. 15(3) as a fore runner to common code does animate to make law to accord socio-economic equality to every female citizen of India, irrespective of religion, race, caste or community.”
In W. Kalyani v State (2012) 1 SCC 358 this Court has recognised the gender bias in Section 497. The court in Kalyani (supra) observed that “The provision is currently under criticism from certain quarters for showing a string gender bias for it makes the position of a married woman almost as a property of her husband.”
The purpose of Article 15(3) is to further socio-economic equality of women. It permits special legislation for special legislation for special classes. However, Article 15(3) cannot operate as a cover for exemption from an offence having penal consequences.
A Section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination.”
Finally, Justice Indu Malhotra in the concluding para 18 held that, “In view of the aforesaid discussion and the anomalies in Seection 497, as enumerated in para 11 above, it is declared that:
(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.
(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.
(iii) The decisions in Sowmithri Vishnu (supra), V. Revathi (supra) and W. Kalyani (supra) hereby stand overruled.”
All said and done, it is an excellent and exemplary judgment which is bound to erase the subjugation of women by men. Now men can no longer be the boss of women! Section 497 which should have been erased right after independence has now been struck off after more than 71 years of independence and that too by the judiciary and not by the Legislature which just did not care to take any worthwhile initiative in this regard even though the 156th report of Law Commission of India and Justice Malimath Committee report had categorically called for making Section 497 gender neutral leave alone erasing it altogether! So now finally we see judiciary stepping in and doing what is truly landmark and laudable and what is most heartening to note is that not a single Judge out of the five who delivered this landmark judgment has dissented even slightly! This itself is the biggest testimony to the irrefutable and indisputable truth that Section 497 which institutionalizes discrimination as Justice Indu Malhotra rightly points out deserves no place in the penal laws! CJI Dipak Misra rightly saiad that, “The man shall be booked for the offence and his wife shall suffer but the husband of the woman who has committed the crime will have the benefit.” CJI also rightly advocated that the survival of a marriage should be left to the discretion of the husband and the wife, without any intrusion by the State! From now onwards, the provision of adultery can only be invoked as a valid ground for obtaining divorce and not for any other thing! Very rightly so! There can be no denying or disputing it!
