The “beauty” of the Constitution is that it includes “I, you and me”, Chief Justice of India Dipak Misra observed in a landmark judgment that decriminalised adultery. In a unanimous verdict through four concurring opinions on a five-judge Bench — CJI Misra and Justice A M Khanwilkar; Justice R F Nariman; Justice D Y Chandrachud; Justice Indu Malhotra — the Supreme Court struck down the archaic Section 497 of the Indian Penal Code (IPC) due to its “manifest arbitrariness” in punishing only men for adultery and for treating a woman as her husband’s property.
In his judgment, the CJI declared that the husband is neither master of his wife, nor does he have legal sovereignty over her. He observed that “any system treating a woman with indignity… invites the wrath of the Constitution”.
Justice Chandrachud overruled the judgment of his father. In 1985, former CJI Y V Chandrachud had upheld Section 497 (Sowmithri Vishnu vs Union Of India & Anr); on Thursday, Justice D Y Chandrachud called the provision a relic of Victorian morality and observed that it “proceeds on the notion that the woman is but a chattel; the property of her husband”. Justice Chandrachud emphasised the ability to make choices as a fundamental facet of human liberty and dignity, and observed: “Autonomy in matters of sexuality is intrinsic to a dignified human existence… Section 497 denudes the woman of the ability to make these fundamental choices.”
Justice Nariman termed Section 497 violative of Article 14 (equality) and Article 15 as it discriminated on grounds of sex and punishes just men. Referring to “ancient notions” of the man being the seducer and the woman being the victim, he said this is is no longer the case today.
Justice Malhotra observed that Section 497 institutionialised discrimination and was “replete with anomalies and incongruities”, such as an adulterous relationship not constituting an offence if a married woman had her husband’s consent.
‘Theft’ & ‘adultery’
The court noted striking similarities between the offences of ‘theft’ and ‘adultery’ under the IPC. Under Section 497, a wife could not prosecute her husband or his lover for violating the so-called sanctity of the matrimonial home, as the husband was not her exclusive property but a husband. Under Section 198(2) of Code of Criminal Procedure, 1973 — also struck down — only a husband could prosecute the man with whom his wife had a sexual relationship. Moreover, if the husband had an affair with an unmarried woman, divorcee or widow, no offence of adultery is made out against anybody.
Why did the British-era law exempt women? In fact, the First Law Commission of 1837, under Lord Macaulay, had not included adultery as a crime in the original IPC it had drafted, counting it only as a civil wrong. The Second Law Commission in 1860, headed by Sir John Romilly, made adultery a crime but spared women from punishment for adultery due to the conditions in which they lived — child marriage, age gap between spouses, and polygamy. The drafters of the IPC looked at this as being sympathetic to women, and also viewed men as the real perpetrators.
In 1954, the Supreme Court too treated Section 497 as a special provision made in favour of women in exercise of the state’s powers under Article 15(3) of the Constitution (Yusuf Abdul Aziz vs State of Bombay). In 1988, the court upheld Section 497 by saying only an “outsider” is liable and this exemption is basically a “reverse discrimination in favour of women” (Revathi vs Union of India). The Supreme Court held that breaking a matrimonial home is no less serious a crime than breaking open a house, and refused to strike down Section 497 as this was a question of policy, not constitutionality. These judgments now stand overruled.
Across countries, cultures
Not just the IPC, most legal systems used to treat adultery as a serious crime. The Encyclopedia of Diderot & d’Alembert, Vol. 1 (1751) too equated adultery with theft: “Adultery is, after homicide, the most punishable of all crimes, because it is the most cruel of all thefts.” In 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man’s wife was “the highest invasion of property”.
Hindu and Islamic laws prescribed punishment for both men and women, and also for relations with an unmarried woman.
Manu’s treatise gave adultery an extremely broad definition — “offering presents to a woman, roaming with her, touching her ornaments and dress and sitting with her on bed, all these acts are adulterous” — and prescribed death as punishment for adultery, provided the offender was not a Brahmin. For wives involved in marital fidelity, Yajnavalkya’s treatise declared: “An adulterous wife should be deprived of her authority over the servants, should be made to wear dirty clothes, should be given food just sufficient to enable her to live, should be treated with scorn and be made to lie on the ground: she becomes pure when she has her monthly period, but if she conceives during the adulterous intercourse, she should be abandoned.”
Islamic law, which prescribed 100 lashes for adultery, defined the offence in narrow terms — intercourse outside marriage — but made it almost impossible to prove, by insisting on the testimony of four witnesses to the actual sexual act. If four witnesses do not testify, then a punishment of 80 lashes was to be given to the person making the allegation, as well as to those witnesses who did testify — and their evidence would never be accepted in the future.
On Wednesday, the court took note of global decriminalisation of adultery. Today, it is no more a crime in most European countries. In the US, some 10 states retain various criminal statutes outlawing adultery. Some prohibit only “open and notorious” adultery, others prohibit “habitual” adultery, with penalties varying from fine (ranging from $10 to $1000) to imprisonment up to three years. Doubts have been expressed about the continued validity of these adultery laws since 2003, when the US Supreme Court (Lawrence vs Texas) struck down laws penalising sodomy.
In countries such as Saudi Arabia, Yemen and Pakistan, adultery continues to be treated as a capital offence. In India, the judgment is set to face criticism from diverse groups such as the RSS, the All India Muslim Personal Law Board and Christian fundamentalists. The BJP-led government too had opposed decriminalisation of adultery.
Adultery will continue as a ground of divorce and, therefore, remain in civil law. Thursday’s verdict will be welcomed by those who believe there should be less use of criminal law in matrimonial matters.