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The court found section 497 of the Indian Penal Code, 1860, which governs adultery to be “arbitrary and violative of Article 14 (right to equality) of the Constitution". The provision imposes culpability on the person who has sexual intercourse with a woman who is, and whom he knows or has reason to believe to be, the wife of another man, without the consent or connivance of the husband. Chief Justice of India (CJI) Dipak Misra, who led the five-judge Constitution bench that also included Justices D.Y. Chandrachud, Indu Malhotra, A.M. Khanwilkar and R.F. Nariman, upheld the tenets of privacy in the marital sphere. Criminalizing adultery would amount to “immense intrusion into the extreme privacy of the matrimonial sphere" and is “unlikely to establish commitment", the chief justice said. Though the criminal law proceeded on "gender neutrality", the concept was absent in Section 497. It was an antiquated colonial-era law that treated women as properties of their husbands and the law was also based on sexual stereotypes that view women as being passive and devoid of the sexual agency also manifest arbitrariness in the law which degraded the morality of a woman. The verdict also goes to show how jurisprudence around the subject of criminalizing adultery, constitutional morality, and sexual agency has evolved through the years.
Section 497 of the Indian Penal Code gives a husband the exclusive right to prosecute his wife's lover. A similar right is not conferred on a wife to prosecute the woman with whom her husband has committed adultery. Further, the law does not take into account cases where the husband has sexual relations with an unmarried woman. Section 198 (2) the Criminal Procedure Code allows a husband to bring charges against the man with whom his wife has committed adultery. 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 based on an 'intelligible differentia' which distinguishes persons or things that are grouped 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.
It is noteworthy that it was an Italy based NRI named Joseph Shine who hails from Kerala, filed a Public Interest Litigation challenging IPC Section 497 in 2017 and contended that the law is discriminatory. 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. The court said the offense, which carried a prison sentence of up to five years, was arbitrary and needed to go. “It is time to say the husband is not the master,” said the chief justice, Dipak Misra. He quoted John Stuart Mill: “Legal subordination of one sex over another is wrong in itself.” While adultery should not be a criminal offense, the bench held that adultery should continue to be treated as a civil wrong, and can be grounds for dissolution of marriage or divorce. There cannot be any social license that destroys a home. Lawyers for the central government had opposed scrapping the adultery law, arguing that diluting sanctions against infidelity would “result in laxity of the marital bonds”
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