Libertatem Magazine

Supreme Court says adultery provision in Indian Penal Code a ‘peculiar law’ as it fails test of arbitrariness

Contents of this Page

Section 497 of the IPC 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 to the offence of rape, is guilty of the offence of adultery.

A petition has been filed to question the statutory immunity given to women under Article 15(3) of then constitution where a woman playing the role of an abettor can be absolved from any kind of punishment. The petition intends to make men and women equally liable for adultery intends to be struck down Section 497 of the IPC and section 198(2) of the Cr. P. C together. The government has argued that adultery strikes the institution of marriage and the concept of family.

The Petition

Advocate Kaleeswaram Raj referred the law in question as “archaic” stating various inconsistencies in the section. The advocate submitted before the bench judgement held in the Sowmithri Vishnu case [AIR 1985 SC 1618], where it was held that “We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman”, was not acceptable.

Mr.Raj claimed W. Kalyani v. State [(2012) 1 SCC 358 ] as most noteworthy, where it was held that the provisions of section 497 of IPC should be condemned as law it promotes gender prejudice since only a man be prosecuted for the offence of adultery and even an adult woman shall be exempted from the grave misconduct.

The petitioner’s counsel stated that Section 497 derives its legitimacy from the ruling held by SC bench in 1954 on the grounds of protection of women and children permitted under Article 15(3) of the constitution.

Opinion of the Justice

Justice Rohinton Nariman referred to the standard test of Article 14: intelligible differentia, questioning “where is the intelligible differentia in saying that the sanctity of marriage is not hurt if a married man has sexual intercourse with an unmarried woman? This is manifest arbitrariness”. Justice D Y Chandrachud observed that if a person indulges in an adulterous relationship with his consent then this itself was an indicator of a “broken marriage”, therefore is suffices as valid ground for divorce. “An ancient provision is not protected under Article 15(3). It is for the Parliament to make (laws under Article 15(3)”, agreed Justice Nariman. Moreover, Justice Indu Malhotra slammed the “absurdity” & “irregularities” of the section in question where wife is objectified and treated as chattel of her husband, amounting to grave gender biasedness.  “Both parties in adultery derive the benefit of the act. Despite that, one is treated as a victim and another punished. There is no rationality in it. The provision is a reflection of the times it was drafted,” Chief Justice Dipak Misra said, by Hindustan Times.

The Judgement

Taking into consideration the societal dynamic nature the constitutional makers had conferred special rights to women & children, but precedents must be inspected by a larger bench. The bench said that to allow sexual intercourse with the consent of a woman’s husband is “an indication of treating the wife as husband’s chattel”. Putting into layman terms, the court ruled that an adulterous relationship is forced upon the woman by the man.

The CJI-led bench said, “If adultery gets scrapped as a crime for violating Article 14, then no one, neither the man nor the woman, will be punished.” Supreme Court calls adultery provision in Indian Penal Code a ‘peculiar law’, as it fails test of arbitrariness. Taking into consideration the sanctity aspect the court stated, “Definitely the matrimonial sanctity aspect is there, but the way the provisions is enacted or made runs counter to Article 14 (Right to equality of the Constitution),” said the bench.

“As far as criminalization or decriminalization of adultery as an offense is concerned, it is in one compartment. Adultery cannot cease to be a ground for seeking divorce by an estranged couple in a court of law,” the bench held.

The CJI said that “if the offense of adultery is retained by making it as gender neutral by the government then it would add “another few lakhs more litigations”.

Author’s Perception:Petition challenged the constitutionality of criminalisation of adultery under Section 497 of the Indian Penal Code and gender prejudice. But decriminalising adultery will pave the road for moral decadence resulting into degradation to country’s traditional values further. It’s obvious that Section 497 of the 158-year-old IPC is “manifestly arbitrary” as it is doesn’t suffice the test of intelligible differentia and endorses “irrational classification”. But the appropriate course of action would be a proper legal framework set up by the government aimed to widen their scope of adultery laws in the country further making them gender-neutral.

About the Author