On September 27, 2018, a five-judge bench of the Supreme Court unanimously struck down another colonial-era law, Section 497 of the Indian Penal Code (IPC) that made adultery punishable with a jail term and a fine, as unconstitutional. In four separate but concurring opinions, the bench, headed by the (then) Chief Justice of India, Dipak Misra, and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, decriminalised adultery by removing provisions related to adultery in the IPC and the Code of Criminal Procedure (CrPC). Adultery will now no longer be a criminal affair (it remains a ‘civil offence’ though that can be a ground for divorce).
The court ruling was in response to a public interest litigation (PIL) that demanded that adultery should be made gender neutral. The PIL had been filed by an Italy-based Indian businessman, Joseph Shine, in 2017. The petition had challenged IPC Section 497 on the grounds that the law discriminated against men and that there must be equal punishment for men and women found involved in adultery.
The Supreme Court, however, decriminalised adultery altogether, calling adultery a relic of the past and as causing dent to individual dignity and equity of women in a civilised society.
What was wrong with Section 497
Section 497 of the IPC—part of the British-enacted penal code of 1860—defined adultery as an offence committed by a man against a married man if the former engaged in sexual intercourse with the latter’s wife. It read: ‘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.’ It also stated that a man found guilty of adultery ‘shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.’ Section 497 used to be read with Section 198(2) of the CrPc in the matters of prosecution for offences against marriage.
In simpler words, the offence of adultery was, according to Section 497, committed by a man against a married man. Voluntary sexual intercourse between a married man and a woman who is not his spouse without her husband’s consent was a crime in which only the married man was punishable.
The 158-year law reflected a severely archaic Victorian morality and was being questioned on many grounds. One prevailing view was that the law was not gender-neutral. In the adulterous relationship, only the man was punishable. The wife could not be punished as an abettor. A husband could only divorce a wife on grounds of adultery. There was no penal provision against her. Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC. Similarly, an unmarried woman could not be prosecuted for adultery.
The other view was that the law seemed to be pro-women but, in reality, was anti-women in a grave ostensible way. The woman had no standing of her own and was treated as ‘property’ of her husband. The message was that it was the husband’s ‘consent’ that was of paramount importance, not her own wish or desire. This was a comment on the lack of sexual freedom of women and her abject commodification as her affair with another would not amount to adultery if it had the consent of her husband. Also, though adultery is considered to be an offence relating to marriage, the wife of an adulterer could not object or complain to any agency. If the woman involved in the extra-marital affair happened to be single and had no husband who was wronged, her situation was treated by law with total unconcern.
Section 497 was also not compatible with the Marriage Laws (Amendment) Act of 1976. The amendment made an act of adultery a valid ground for divorce. Either spouse could seek divorce on the ground of adultery. It stated that even a single act of voluntary sexual act by either party to the marriage with any person other than his or her spouse constituted a ground for divorce for the other spouse. But, Section 497 of the IPC did not recognise a woman as an aggrieved party in the case of adultery.
The most loaded rationale against Section 497 was that it intruded into the realm of privacy. How couples deal with infidelity is their private matter and the state cannot impose any arbitrary laws in the name of morality. The problem lay not only in the oppressive social values themselves, but with the state using the force of law to entrench gender inequalities and oppression.
Many countries have abolished adultery laws. These include Britain which abolished the law way back in 1857. Romania became the last European country to abolish adultery in 2016.
Governments’ stand on the issue
The Centre was not in favour of altering Section 497 of the Indian Penal Code (IPC) that punishes adultery. It said Section 497 IPC was enacted so as to safeguard the sanctity of marriage and diluting it would be detrimental to matrimonial bond.
Chronology of the case
October 2017: An NRI from Kerala files PIL in the Supreme Court challenging the constitutional validity of Section 497 of the IPC. The petition says that law discriminates against men and violates Articles 14, 15 and 21 of the Constitution.
January 2018: The Supreme Court refers the plea to a five-judge constitutional bench.
July 2018: The Centre tells the court that is against altering Section 497 as the move will destroy the fundamentals of the institution of marriage
August 2018: The court says penal provision of adultery law violates the right to equality under the Constitution.
September 2018: The Supreme Court holds Section 497 as unconstitutional and strikes down the provision.
What the court ruled
The four concurring opinions—authored by the Chief Justice, R.F. Nariman, D.Y. Chandrachud, and Indu Malhotra—all agreed that Section 497 was based on gender stereotypes, and therefore violated Article 14 of the Constitution (equal protection of laws), and also Article 15(1) (non-discrimination on grounds of sex). The exemption of women from criminal liability was not a benefit, but rather, part of a broader set of presumptions that effectively caged and limited them. The court held that adultery could not be criminalised at all. The court held that subjecting interpersonal relationships (where there was no violence) to the rigours of criminal law would amount to an unwarranted intrusion into the right to privacy. Loss of moral commitment in a marriage creates a dent in the relationship, but it is left to each individual to deal with the problem—some may forgive while others may seek divorce. Punishing each other or the wife’s lover is unlikely to re-kindle commitment, the judgement said.
The judges said the legislature could not respond to the judgement by passing a fresh, gender-neutral adultery offence: that, too, would be unconstitutional, this time under Article 21 of the Constitution.
The key observations of the court are as follows:
- Adultery law is an archaic law, manifestly arbitrary, and offends the dignity of women.
- Adultery can be ground for civil issues, including dissolution of marriage (divorce), but it cannot be a criminal offence. Though adultery per se is no longer a crime, if any aggrieved spouse commits suicide because of the partner’s adultery, it could be treated as an abetment to suicide—a crime.
- Any provision treating women with inequality is not constitutional. Section 497 gives a license to the husband to use the woman as a chattel. A woman cannot be asked to follow what a man or society desires. The husband is not the master. Equality is the governing parameter.
- Adultery might not be the cause of an unhappy marriage; it could be the result of an unhappy marriage.
- In case of adultery, criminal law expects people to be loyal—a command which gets into the realm of privacy.
- Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.
Earlier judgements on adultery
The September 2018 judgement overturned three previous rulings on the matter.
Yusuf Aziz vs State of Bombay case, 1954: In the case filed in 1951, the petition contended that Section 497, governing adultery law, violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution. It discriminated against men by not making women equally culpable in an adulterous relationship. It was also argued that adultery law gave a license to women to commit the crime.
The Supreme Court ruled in 1954 that Section 497 was valid; that the adultery law was not discriminatory against men; that it did not give a license to women to commit adultery; that a special provision for women to escape culpability was constitutionally valid under Article 15(3). The court observed that it is commonly accepted that it is the man who is the seducer, and not the woman, and so a woman could only be a victim of adultery and not a perpetrator of the crime under Section 497. However, despite declaring women as ‘victim only’ in the occurrence of the crime of adultery, the court did not allow them to file a complaint.
Sowmithri Vishnu vs Union of India case, 1985: In this case, the Supreme Court held as valid the offence of adultery as a crime committed by a man against another man. It said that men could not be allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law.
V Revathy vs Union of India case, 1988: The Supreme Court ruled that not including women in prosecution of adultery cases amounted to ‘social good’ as it gave the couple a chance to ‘make up’ and keep the sanctity of marriage intact. It was observed that adultery law was a ‘shield rather than a sword’. The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men.
Comments
The judgement is welcome on two counts. It does away with a law that was grievously patriarchal and treated married women as property of their husbands. All the judges were clear that a woman has the right to bodily integrity, individual choice, and personal autonomy not just against the State, but also within the context of the home and the family. Justice Chandrachud’s observed that denying sexual autonomy to women is unconstitutional and unacceptable.
Also equally important is that the court did not simply set out to equalise the right to file a criminal complaint, by allowing a woman to act against her husband’s lover. It rid the IPC and the CrPC of a Victorian-era morality that is now long dead. The court provided a progressive legal landscape tin which individual rights triumph. By decriminalising adultery, and homosexuality in another order, the court has put India on the course of rights-based social relations, instead of a state-imposed moral order.
It, however, remains a matter of concern that our legislature is not being proactive in amending repressive laws, and that the courts have to step in, time and again, to address such issues.
Two other prominent repressive laws that remain include the restitution of conjugal rights (which allows a court to “direct” one spouse who has left the company of the other spouse to return, even against her will), and the marital rape exception (which states that rape within a marriage does not count as rape for the purposes of criminal law). It is expected that the decriminalisation of adultery may have a ripple effect that goes beyond its immediate context, and serves as a launchpad for greater freedom, equality, and independence within what is commonly understood to be the private sphere.
Trivia
- With the judgement on adultery, Justice D.Y. Chandrachud became the only Supreme Court judge to have overruled his father, (former) Chief Justice of India Y.V. Chandrachud, twice in a year. Justice Chandrachud overruled the 1985 verdict in the Sowmithri Vishnu case. Earlier, Justice Chandrachud overruled his father’s ruling on Section 377.
- According to criminal lawyers, there has hardly been any case where a man was convicted for adultery under Section 497. The National Crime Records Bureau does not even maintain a database on such cases as instances of these are negligible. Adultery charges are sometimes filed in matrimonial cases where the husband may want to hit back against those helping the estranged wife by accusing them of adultery and prolonging criminal proceedings. Conviction under this section is negligible as proof of the sexual intercourse is needed to prove adultery charges. The September 2018 court ruling will, however, put an end to the misuse of the practice.