DESCRIBING THE law criminalising adultery as arbitrary, which treats the wife as chattel and deprives women of her sexual autonomy and dignity, the Supreme Court Thursday struck down as “unconstitutional” Indian Penal Code Section 497, which makes adultery a punishable offence only for men. Adultery will, however, continue to be a ground for any civil wrong, including a ground for divorce.
In four separate but concurring judgments, a five-judge Constitution Bench of Chief Justice of India Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said the colonial-era provision violated Articles 14 (right to equality); 15(1) (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth); and, 21 (protection of life and personal liberty).
The bench also held as unconstitutional Section 198 of the Code of Criminal Procedure (CrPC) which provides for prosecution for offences against marriage.
The bench was deciding a petition filed by Joseph Shine, a businessman from Kerala who lives in Italy. He was represented by Kochi-based advocates Kaleeswaram Raj and his daughter Thulasi K Raj and Delhi-based advocate Suvidutt Sundaram.
According to IPC section 497, “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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”
Writing for self and Justice Khanwilkar, CJI Misra said, “… (It) is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master.”
The bench pointed out that Section 497 does not bring within its purview an extramarital relationship with an unmarried woman or a widow, nor does it confer any right on the wife of an adulterous husband to proceed against him.
By treating only the man as the aggrieved person, “it confers a licence on the husband to deal with the wife as he likes, which is extremely excessive and disproportionate,” the CJI said.
Section 497, he wrote, curtails the dignity of women “by creating invidious distinctions based on gender stereotypes.” and “the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women”. To attach criminality to it, he said, “would tantamount to the State entering into a real private realm”.
Rejecting arguments that the IPC section was intended to protect marriages, the CJI said adultery may not always be the cause but may also be the result of unhappy marriages — and making it punishable was unlikely to bring commitment back between partners.
Justice Chandrachud, in his concurring judgment, overruled a previous decision of a three-judge bench headed by his late father, former Chief Justice Y V Chandrachud in the 1985 case Sowmithri Vishnu vs Union of India & Another in which Section 497 was challenged as violative of Article 14 by denying women the rights available to men.
On his father’s judgment, Justice Chandrachud wrote, “the decision in Sowmithri Vishnu dealt with the Constitutional challenge by approaching the discourse on the denial of equality in formal, and rather narrow terms. Chandrachud, CJ speaking for the three judge Bench observed that by definition, the offence of adultery can be committed by a man and not by a woman.The court responded by observing that this was a matter of legislative policy and that the court could invalidate the provision only if a Constitutional violation is established”.
“The error in Sowmithri Vishnu lies in holding that there was no Constitutional infringement,” he said, adding it left unanswered the fundamental challenge whether Section 497 treats a woman purely as the property of her husband. The decision in Sowmithri Vishnu, he said, “fails to deal with the substantive aspects of constitutional jurisprudence which have a bearing on the validity of Section 497: the guarantee of equality as a real protection against arbitrariness, the guarantee of life and personal liberty as an essential recognition of dignity, autonomy and privacy and above all gender equality as a cornerstone of a truly equal society”.
“The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife… It was aimed at preventing the woman from exercising her sexual agency… In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage,” he wrote.
He said “a woman’s ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognised as being so today… It is not the ‘common morality’ of the State at any time in history, but rather constitutional morality, which must guide the law,” he wrote.
“Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having sexual intercourse with another… (It) disregards the sexual autonomy which every woman possesses as a necessary condition of her existence,” he wrote.
Justice Nariman, in his judgment, said there was no offence of adultery if a man has sexual intercourse with a married woman with the consent or connivance of her husband. “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,” he said.
What was punished, he wrote, “is not adultery per se but the proprietary interest of a married man in his wife”.
Justice Indu Malhotra said “the historical background in which Section 497 was framed, is no longer relevant in contemporary society”.
“Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals… 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…,” she wrote.