Libertatem Magazine

Adultery No Longer A Crime Rules Supreme Court Of India

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Supreme Court of India delivered a landmark judgment on Thursday striking down section 497 of Indian Penal Code, 1860.

Facts Of The Case

A writ petition was filed under article 32 of the Indian Constitution challenging the validity of section 497 of the Indian Penal Code. Section 497 of Indian Penal Code defines adultery as a crime in which a man has sexual relations with another man’s wife without taking his consent. Law of adultery allows only the husband to file a case against the accused who allegedly slept with such man’s wife. Women in cases of adultery can neither be charged nor make a complaint.

Interestingly, this was not the first time Supreme Court of India was called to decide on the constitutionality of adultery. It was challenged for the first time in 1954 in the case of Yusuf Abdul Aziz v. State of Bombay, Sowmithri Vishnu v. Union of India and another, V.Revathi v. Union of India and Ors. and W Kalyani v. State through Inspector of Police and another. In all the above cases validity of section 497 was upheld. Similar, arguments were raised in earlier cases which could be listed out in brief as

1. It confers upon the husband the right to prosecute the adulterer but, not on the wife to complaint against the woman with whom her husband committed adultery.

2. It does not allow the wife to prosecute husband who committed adultery.

 3. It does not include cases where the husband has illicit relations with an unmarried woman. This gives a free license to husband to have an extra-marital affair

4. The section is a kind of Romantic Paternalism which makes it look like as if women are men’s property.

Reason for upholding the validity given by Supreme Court was that arguments raised then had strong emotive appeal but not any legal basis and a penal provision cannot be held unconstitutional just because it only punishes man. Court also said that “It is commonly accepted that it is the man who is the seducer and not the woman”

The second argument was rejected because court observed that offense of adultery as defined can only be committed by a man, not by a woman, echoing the prejudice that woman is always a victim in adultery as she lacks agency to be a willing participant in it.

The third argument was rejected as the section cannot be struck down just because it does not include everyone and Fourth arguments also met the same fate and Court said that law will change keeping in mind feminine attitude when reform of penal law is undertaken.

Respondent, in this case, argued that section 497 preserves the sanctity of marriage. Supreme Court this time gave a different opinion.

Decision Of The Case

Five-judge Bench of Justice Dipak Misra, Justice A.M Khanwilkar, Justice Indu Malhotra, Justice D.Y Chadrachud and Justice R.F Nariman unanimously held section 497 as unconstitutional. Section 198(2) of the Criminal Procedure Code was also struck down.

C.J. Deepak Misra and A.M Khanwilkar declaring section 497 arbitrary wrote in his judgment:

“Any provision of law affecting individual dignity and equality of women invites the 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”

Justice Nariman says

Justice Nariman in his separate but concurring judgment declared the section is arbitrary as there was no intelligible differentia in saying that sanctity of marriage is maintained if the husband had sexual relations with an unmarried woman or a married woman.

Justice Chandrachud indicated the irregularity in the section by saying that section exempts a man who had sexual relations with somebody else’s wife from criminal prosecution if he seeks permission from the husband of the said woman before doing so. He raised an interesting question which was

“can the section be saved if we strike down this part…because this is one ground for the unconstitutionality of the provision…or would we, by applying the doctrine of severability, in fact, make the offense even more severe than the legislature intend?”

He continued and stated

“Besides consent, If the husband of a woman connives with another man for the latter to participate in sexual intercourse with the former’s wife, then there would be no adultery! This ‘connivance’ attaches a certain deviousness to the Act.”

Justice Indu Malhotra

Justice Indu Malhotra agreed with the bench and held that section 497 is gender biased and treats the wife as chattel of consenting husband.

Moreover, it was clarified that adultery will continue to be a ground for divorce and if adultery leads to suicide accused spouse can be tried for abetment of suicide under section 306 of Indian Penal Coded as well.

Answering the question about the sanctity of marriage as an institution

Chief Justice said

“only rationale behind the provision seems to be that marriage is an institution which has to be saved…marriage has been called an institution in all scriptures, it is built by two pillars and there has to be equal responsibility of both say that women are protected from the criminal ramifications of Adultery under Article 15(3) is not justified. An Ancient provision is not protected under Article 15(3)”

Author’s Opinion

Keeping in mind this decision of  Supreme Court and other landmark judgements such as judgement on section 377, Aadhar, it can be concluded that Supreme Court is not going to be bound by the shackles and chains of ancient laws made keeping in mind the ancient mentality. Supreme Court will decide cases according to the logic and mindset of present society. Sanctity of marriage in today’s time can only be prevented if both the parties are given equal powers and responsibilities equally.

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