The Supreme Court on Thursday unanimously struck down Section 497 of the Indian Penal Code that makes adultery a punishable offence for men. In four separate but concurring judgments, the five-judge bench of the Supreme Court said the 158-year-old law was unconstitutional and fell foul of Article 21 (Right to life and personal liberty) and Article 14 (Right to equality).
The apex court also declared Section 198(1) and 198(2) of the CrPC, which allows a husband to bring charges against the man with whom his wife committed adultery, unconstitutional. Chief Justice of India Dipak Misra, who pronounced the judgment in concurrence with Justice AM Khanwilkar, said while adultery could be a ground for civil issues, including dissolution of marriage, it could not be a criminal offence.
“Adultery can be ground for any civil wrong. There can’t be any social license that destroys the matrimonial home, but adultery should not be a criminal offence,” he said. Stating that a wife was not a chattel of the husband, Misra said, “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say that a husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong.”
However, if any aggrieved spouse ended her life because of her partner’s adulterous relation, it could be treated as an abetment to suicide if evidence was produced, the CJI said. The CJI further said Section 497 was manifestly arbitrary and offends the dignity of women. Stating that the beauty of our Constitution was that it includes ” I, me and you”, Misra said equality was the governing principle of a system.
Justice Nariman termed Section 497 archaic and concurred with the judgment of the CJI and Justice Khanwilkar, saying the penal provision was violative of the rights to equality and equal opportunity to women. Justice Chandrachud said Section 497 destroyed and deprived women of dignity. “Section 497 is based on gender stereotypes of the role women. The provision is unconstitutional,” Chandrachud said.
Saying that Section 497 also deprived a woman of her privacy, he said, “Society has two sets of standards for judging the morality of men and women. The law is gender biased, gives unequal voice to partners.”
Justice Indu Malhotra, the lone woman judge on the bench, said that Section 497 was a clear violation of fundamental rights granted in the Constitution and there was no justification for the continuation of the provision.
The five-judge bench of the Supreme Court had reserved judgment on August 8, saying that making adultery a penal offence would be irrational and violative of Article 14 of the Constitution.
The petition seeking the repeal of Section 497 IPC was filed by a non-resident Keralite — Joseph Shine — who termed the 158-year-old law enacted by the Britishers as “unjust, illegal and arbitrary and violative of citizens’ fundamental rights”. Questioning the gender bias in the provision drafted by Lord Macaulay in 1860, Shine has also challenged Section 198(2) of the CrPC.
“When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability,” the PIL said.
During the hearing, Justice Chandrachud had said the court was more concerned about the constitutionality of the provision than making it gender neutral. According to the provision, an adulterous relation will not be an offence if there was consent of the husband, the judge said.
In its affidavit, the Centre has contended that adultery should remain an offence, saying Section 497 was enacted so as to safeguard the sanctity of marriage. “Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds,” the Centre had said.
According to Section 497 of IPC, “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”. Adultery presently entails imprisonment for a term which may extend up to five years, or fine, or both.
On January 5, a three-judge bench of the Supreme Court, headed by Chief Justice Dipak Misra, referred the PIL to a larger constitutional bench. The bench had contended the provision seemed “quite archaic, especially when there is societal progress”. In three earlier judgments in 1954, 1985 and in 1988, the court had upheld the provision.