Three days before the Centre scrapped the special status granted to Jammu and Kashmir under Article 370 of the Constitution, thereby making the Indian Penal Code (IPC) applicable in the state, the Supreme Court on August 2 struck down Section 497 of the Ranbir Penal Code (RPC) that dealt with adultery, holding it “unconstitutional”.
A bench of Justices R F Nariman and Surya Kant drew on the top court’s September 27, 2018 verdict in the Joseph Shine vs Union of India matter in which it held as unconstitutional Section 497 of the IPC, which dealt with adultery provisions, to invalidate the similar clause in the RPC, the penal law applicable in J&K. With the special status scrapped on August 5, IPC will now apply in Jammu and Kashmir.
Section 497 of the RPC said that “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 be punishable as an abettor”.
Section 497 of the IPC was similarly worded but for the fact that it said that the wife shall not be punishable as an abettor. The provision was challenged by Italy-based NRI Joseph Shine, who termed it unjust, illegal, arbitrary, violative of citizens’ fundamental rights and gender-biased.
A Constitution Bench of the court, comprising then Chief Justice of India Dipak Misra and Justices Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, struck down the colonial-era provision, saying it 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). Adultery, it added, would continue to be a ground for any civil wrong, including a ground for divorce.
The judgment, however, did not affect J&K’s penal code RPC whose adultery provision remained intact.
Thereafter, an Army officer from J&K approached the apex court and urged it to apply a similar yardstick to strike down Section 497 of RPC.
The officer claimed that he had been charged under the section and transferred. He was also charged under the Army Act.
The officer claimed he was the victim of a matrimonial dispute and had suffered divorce. He had approached the Armed Forces Tribunal which refused to grant him relief. On appeal, the Supreme Court set aside the tribunal order. The court noted that he had already been acquitted under section Section 63 of the Army Act, 1950, subject to confirmation.