The apex court of the land recently ruled that adultery is no longer a crime by striking down a 158-year old colonial-era law. This decision had been widely held as a progressive and empowering judgement. It has acted as a landmark victory in the cause of promoting and safe guarding women’s rights.
This law is provided under s. 497 of the 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 offense 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”.
This section was challenged for the first time in the case of Yusuf Abdul Aziz v. The state of Bombay where the law was contented to be violative of gender equality enshrined under Art.14 &Art.15 of the constitution. However, the Supreme Court ruled that the contended section was valid. Later on this section was challenged again in the case of Smt. Sowmithri Vishnu v. Union of India and V. Revathi v. Union of India, but owing to the sanctity of marriages the Supreme Court upheld this legislation.
In the case of Joseph Shine vs. Union of India, a writ petition was filed under Article 32 challenging the constitutionality of Section 497 of IPC read with section 198(2) of CrPC which criminalizes Adultery. Section 497 essentially states that a man who has consensual intercourse with the wife of another man without his consent could be held liable for the offense of adultery and punished. However, the adulterous woman cannot be held liable. The law does not apply where an unmarried woman has sexual intercourse with a married man. However, the ‘criminality’ of the act is absolved when the husband of the married woman gives consent to her sexual intercourse with the other man.
- Section 497 infringes Article 21 ‘Right to Privacy’.
- The impugned section violates Article 14 and 15 on the grounds that it discriminates on the basis of gender by holding only men criminally liable for theoffense of adultery.
- The section should be made gender neutral by including women as offenders.
The 5-judge bench, after hearing all the arguments, agreed that the law was archaic in nature. They believed it to bederogatory to the dignity of women and also violative of the equal rights guaranteed to them under the constitution. Hence, they considered it unconstitutional.
The court observed that any provision treating women as unequal is not constitutional. The adultery law propagates the subordinate and objectified status of women in society. It furthers gender stereotypes and denies them dignity and autonomy and hence is violative of Art.14 and Art.21. In other words, it seeks to control the sexual autonomy of women.
Further, the court stated that the ancient notions of ‘man being the perpetrator and woman being the victim’ no longer hold good. Refuting the argument stating that the impugned section was necessary to protect the sanctity of marriage, the court stated that the sanctity of marriage cannot be more important than the individuals who a part of it. Additionally, the court held that the offence of adultery may not lead to an unhappy marriage, but it may surely be the result of one. It may form the ground for divorce but cannot constitute a criminal offense in itself.
Overruling Previous Judgements
The judgement negates all the previous decisions made by the Supreme Court with regard to the same issues. The first case that was filed regarding the unconstitutionality of section 497 was the Yusuf Abdul Aziz case. The contention in this case was that the section was violative of Art.14 and Art.15 of the constitution. It was argued that it was overtly discriminatory against men and gave women a license to commit the crime. In this case, it was held by the court that the section was valid in accordance to Art.15(3) of the constitution and that women could not be the perpetrator of adultery, only a victim, and that it was “commonly accepted for men to be the seducers”. In the case of Smt. Sowmithri Vishnu, the court established two points – (i) on the question of fair and equal application of the adultery law, women need not be considered as or included within the ambit of an aggrieved party. (ii) if a married man has sexual relations with an unmarried or married woman, the woman would not be considered as one of the accused in the crime of adultery as this would mean pitting one woman against another. Both the points were considered as justified by and essential to the premise of protecting the sanctity of marriage. The last case that held adultery as lawful was the one of V. Revathi. In this case, section 497 was upheld as constitutional by claiming it to be “a shield rather than a sword”. It considered limiting the scope of the law to men as constitutional and an important measure to ensure the sanctity of marriage to be intact. The decision in Joseph Shine vs Union of India has overruled all the previous judgements and opinions of the aforementioned cases.
Analysis of the Judgement
- The violation of Art.14 of the constitution was demonstrated by the manifest arbitrariness of the impugned section. It denies women their basic status as that of being equal to men and likens them to the mere chattel of men.It considered adultery to be a crime of man against man and denied women their inherent rights as per the constitution which include agency, sexual autonomy and dignity. The section did not allow women to seek redressal against the ‘crime’ of adultery and thus did not equally protect the rights of both the parties of the marriage. It created disproportionate distinctions between gender stereotypes, violated the fundamental rights of women and degraded their status in general.
- 15 which envisions for non-discrimination of all citizens of India on the basis of religion, race, caste, sex, place of birth was violated by this section due to its blatant discrimination against women on the grounds of their sex. According to Justice Chandrachud, the section finds its roots in the stereotyping of the genders and its existence perpetuates the same. The section is highly flawed in that it discriminates against women. It is oppressive to them and does not stand as a measure of protective discrimination as was earlier claimed by the court under Art.15(3).
- The judgement further states that women were denied their privacy and dignity under this section which is a violation of their fundamental rights as envisaged in Art.21. An invasion of privacy of an individual by the state must meet the three-fold requirement as laid down in Puttaswamy v Union of India . It consists of –
A) the existence of a law which ensures the legality of the issue at hand
B) a legitimate aim, goal or need by the state to invade the privacy of an individual
C) an extent of invasion thatis proportional to the importance of the object to be achieved.
As is apparent on the face of it, section 497 did not meet the aforementioned three-fold requirement. As held in NavtejJohar v. Union of India , sexual privacy is a natural right, fundamental to liberty, and a soulmate of dignity.Further, the law is based on an archaic and patriarchal notion of a marital relationship wherein the sexual autonomy and dignity of a woman is said to be based on the decisions made solely by her husband.
- Finally, it was held by the apex court that adultery may be a conventionally immoral act, however, that was not sufficient to consider it a crime. The Indian Penal Code, 1860 requires its provisions to be sound and for them to have a rational need in society.The mere deterrent effect of adultery did not hold legitimate interest or consideration for the state to criminalize it.
On the whole the judgement is considered as a stepping stone to a more progressive and liberal Indian society with emphasis given to the principles of individual liberty, equality and democracy over traditionalism and conventionally moral standards. It recognizes that the benchmark for any sexual relationship should be consent by the individual’s party to it and that the violation of anything apart from that should not be considered a crime. The stance taken by the government in their argument calling for the preservation of section 497 of protecting the sanctity of marriage and adhering to the Indian ethos, inherently aimed at setting moral reference points for the society. This argument would have set a dangerous precedent for the democracy of our nation and it was rightly considered flawed and wrought with fallacies. Additionally, adultery along with being the cause of an unhappy marriage is also a symptom of it and thus blindly putting a blanket punishment on it in both cases would be inherently incorrect. The section was essentially based on the twisted and absurd premise that on entering marriage, women sign over their sexual autonomy to their husband. If the man had knowledge of and consented to the extramarital relations of his wife then it wasn’t to hold criminal merit. It was thus codified patriarchy and suggested marital subordination of women. Adultery is constitutionally moral, as opposed to common morality, and the striking down of section 497 was truly a historic win in the fight for the empowerment of women and the protection of their rights.
On the whole, the judgement was one that reinforced the faith of the people in the Indian democracy and the constitutional provisions of equality and liberty. It shows that our country is dedicated towards ensuring the protection of the rights and liberties of all of its citizens as well as the its state of affairs as envisaged by the makers of the constitution. It is apparent that the Indian judiciary values progressiveness and open mindedness by ushering in an era of modernism and transformative constitutionalism via this judgement.
– By Shaivi Shah & Palash Moolchandani