Adultery
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This article is written by K Pallavi, a student of Law centre 2, Delhi University.

‘A landmark judgement which decriminalizes adultery in India’ 

 

Supreme Court Bench: CHIEF JUSTICE DIPAK MISHRA, JUSTICE A. KHANWILKAR, JUSTICE R. F. NARIMAN, JUSTICE D. Y. CHANDRACHUD, JUSTICE INDU MALHOTRA

Parties: Petitioner(s) – Joseph Shine, Respondent(s) – Union of India

Date of decision: 27th September 2018

Introduction

Adultery in India was based on the notion of patriarchy and male chauvinism. This offence makes a man criminally liable who has sexual relations with a woman, who is the wife of another man. And if the husband consents or connives to such an act it will no longer be adultery. There is no right to a woman in case her husband commits adultery. In ancient history, adultery was considered to be a sinful act either done by a married man or woman. Adultery in India does not treat a woman as a culprit but as a victim who has been seduced by a man to do such an act. This law is violative of our constitutional principles i.e. equality, non-discrimination, right to live with dignity and so on. Adultery has been struck down as an offence in as many as 60 countries including South Korea, South Africa, Uganda, Japan etc., on being gender discriminative and violating the right to privacy. Even Lord Macaulay, the creator of the penal code objected its presence in the penal code as an offence rather suggested that it should be better left as a civil wrong. The law evolves with the time and many recent judgements have increased the ambit of fundamental rights in conformity with changing societal values and increasing individual liberty. This judgement joins them in creating history by striking down 158-year-old law which has lost its relevance with changing social and moral conditions. 

Facts

A writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality of Section 497 of IPC read with Section 198 of Cr. P.C., being violative of Article 14, 15 and 21. This was at first a PIL filed against adultery. The petitioner claimed the provision for adultery to be arbitrary and discriminatory on the basis of gender. The petitioner claimed that such a law demolishes the dignity of a woman. The constitutional bench of 5 judges was set up to hear the petition.

Contentions

Petitioner

  • The counsel for the petitioner contended that the provision criminalizes adultery on classification based on sex alone which has no rational nexus to object to being achieved. The consent of the wife is immaterial. Hence violative of Article 14 of the constitution.
  • The petitioner contended that provision is based on the notion that a woman is property of the husband. The provision says if the husband gives consent or connive then adultery is not committed.
  • The provision for adultery is discriminative on the basis of gender as it provides only men with the right to prosecute against adultery which is violative of Article 15.
  • The petitioner contended that the provision is unconstitutional as it undermines the dignity of a woman by not respecting her sexual autonomy and self-determination. It is violative of Article 21.

 Section 497 of IPC read with Section 198 of CrPC must be struck down.

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Respondents

  • The respondents contended that adultery is an offence which breaks the family relations and deterrence should be there to protect the institution of marriage.
  • The respondents claim that adultery affects the spouse, children and society as a whole. It is an offence committed by an outsider with full knowledge to destroy the sanctity of marriage.
  • The discrimination by the provision is saved by Article 15(3), which provides state right to make special laws for women and children.

They request the court to delete the portion found unconstitutional but retain the provision.

Issues raised

  1. Whether the provision for adultery is arbitrary and discriminatory under Article 14?
  2. Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on gender basis under Article15?
  3. Whether the dignity of a woman is compromised by denial of her sexual autonomy and right to self-determination?
  4. Whether criminalizing adultery is intrusion by law in the private realm of an individual?

Previous Judgments

In this case, the constitutionality of Section 497 was challenged on the grounds that it violates Article 14 and Article 15, by saying a wife cannot be a culprit even as an abettor. The 3 judge bench upheld the validity of the said provision as it is a special provision created for women and is saved by Article 15(3). And Article 14 is a general provision and has to be read with other Articles and sex is just classification, so by combining both it is valid.

In this case, a petition was filed under Article 32 challenging the validity of Section 497 of IPC. The challenge was based on the fact that the said provision does not provide the right to a woman to prosecute the woman with whom her husband has committed adultery and hence is discriminatory. The 3 judge bench in this case also upheld the validity by stating that extending the ambit of offence should be done by the legislature and not by courts. The offence of breaking a family is no smaller than breaking a house, so the punishment is justified. The court accepted that only men can commit such an offence.

In this case, the court upheld the constitutional validity of Section 497 read with Section 198 by stating that this provision disables both wife and husband from punishing each other for adultery hence not discriminatory. It only punishes an outsider who tries to destroy the sanctity of marriage. And thus it is reverse discrimination in ‘favour’ of her rather than ‘against’ her.

The constitutionality of Section 497 did not arise in this case but it says that mere fact that appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.

Recommendations

  • In the 42nd Law Commission report, it was recommended to include adulterous women liable for prosecution and reduce punishment from 5 years to 2 years. It was not given effect.
  • In the 152nd Law Commission report, it was recommended introducing equality between sexes in the provision for adultery and reflecting the societal change with regards to the status of a woman. But it was not accepted.
  • In 2003, the Malimath Committee on Reforms of Criminal Justice System was formed which recommended amending the provision as ‘whosoever has sexual intercourse with a spouse of any other is guilty of adultery’. The same is pending for consideration.

Court observations

Issue 1

  • The test of manifest arbitrariness should be applied to invalidate the legislation or any sub-legislation. Any law found arbitrary will be struck down.

Judgments cited:

E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3

Shayara Bano v. Union of India (2017) 9 SCC 1

  • The classification is found to be arbitrary in the sense that it treats only the husband as an aggrieved person given the right to prosecute for the offence and no such right is provided to the wife. The provision is not based on equality.
  • The offence is based on the notion of women being a property of husband and adultery is considered to be a theft of his property because it says consent or connivance by the husband would not make it an offence. 
  • The provision does not treat the wife as an offender and punishes only the third party.

Such classification is arbitrary and discriminatory and has no relevance in present times where women have their own identity and stand equal to men in every aspect of life. This provision clearly violates Article 14.

Issue 2

  • This provision discriminates between a married man and a married woman to her detriment on the ground of sex.
  • This provision is based on the stereotype that a man has control over his wife’s sexuality and she is his property.  It perpetuates the notion that women are passive and incapable of exercising their sexual freedom.
  • Section 497 protects women from being punished as abettors. It is enunciated that this provision is beneficial for women, which is saved by Article 15(3). Article 15(3) was inserted to protect the women from patriarchy and pull them out of suppression. This article was aimed to bring them equal to men. But Section 497 is not protective discrimination but grounded in patriarchy and paternalism.

Judgments cited

Government of Andhra Pradesh v. P B Vijayakumar (1995) 4 SCC 520

Independent Thought vs. Union of India (2017) 10 SCC 800

Thus the said provision violates Article 15(1) of the constitution because it is discriminatory on the basis of gender and perpetuating the stereotype of controlling a wife’s sexual autonomy.

Issue 3

  • The dignity of an individual and sexual privacy is protected by the constitution under Article 21. A woman has an equal right to privacy as a man. The autonomy of an individual is the ability to make decisions on vital matters of life.

Judgments cited

S. Puttaswamy and Anr. vs Union of India and others (2017) 10 SCC 1

Common Cause v. Union of India and ors. (2018) 5 SCC 1

  • The provision allows adultery on the husband’s consent or connivance, which gives a man control over her sexual autonomy. This makes her a puppet of the husband and takes away all her individuality. 
  • When the penal code was drafted the societal thinking regarding women was backward and she was treated as a chattel but after 158 years the status of women is equal to that of men. Her dignity is of utmost importance which cannot be undermined by a provision which perpetuates such gender stereotypes.
  • Treating women as victims also demeans her individuality and questions her identity without her husband.

The enforcement of forced fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality provided under Article 21.

Issue 4

  • A crime is defined as an offence which affects society as a whole. Adultery, on the other hand, is an offence which tantamounts to entering into the private realm.
  • Adultery may be committed by two consenting adults making it a victimless crime.
  • This provision aims to protect the sanctity of marriage but we have to admit that because of a pre-existing disruption of marital tie adultery is committed.
  • The other offences related to matrimonial realms such as Section 306, 498-A, 304-B, 494 or any violation of Protection of women from Domestic Violence Act, 2005 or violation of Section 125 CrPC are related to the extinction of the life of a married woman and punishes her husband and relatives.
  • In adultery, a third party is punished for a criminal offence with a maximum 5 years imprisonment. This is not required in the opinion of the court. 
  • This provision makes a husband an aggrieved person and a woman a victim. Even if the law changes and provides equal rights to women against adultery, it is totally a private matter.
  • Adultery is better left as a ground for divorce and not a crime. 

Section 497 of IPC is struck down and adultery can be grounds for any civil wrong including dissolution of marriage.

Critical analysis

Infidelity is more common in larger cities where people are moving towards westernization. This decision has been widely criticized on the ground that it paved a way for people to commit adultery without any fear. There has been an increase in adultery since its decriminalization. Males have claimed that now there is no way to ensure the purity of bloodline. Many claims that recommendations from Law Commissions should have been accepted by the parliament in order to punish men and women both equally for adultery. The Supreme Court has also been criticized that they should have let parliament take decisions on adultery according to the changing social environment. 

Conclusion

This is the 21st century where equality and liberalism have taken over the world. There is a need for legislative reforms to eliminate laws that are discriminatory against women. In India, many laws have become redundant with the passage of time. Adultery being one of them, it was necessary to get rid of it. Adultery not only discriminated between men and women but also demeans the dignity of a woman. This was inserted as an offence when society was filled with patriarchy and paternalism. In that society, a stereotype was created that women belong at home and they didn’t have equal rights and opportunity as men did. And married women didn’t have an individual identity but were treated as the property of their husband which is reflected in the provision for adultery.

But the times have changed; women are no longer behind the shadow of men. Adultery as a criminal offence has no significance because it is a private matter in which courts should not interfere. There is sexual autonomy to every individual and hindering the same would violate the constitutional principles. This judgement decriminalizes the offence of adultery and makes it a ground for civil wrongs only. Criminalizing both men and women as suggested by Law Commission reports would not have served the purpose as adultery is an act which is an extremely private affair related to the matrimonial realm. The Legislature should have taken this step long ago but nevertheless our judiciary has been very efficient in filling the gaps and removing redundant laws with changing societal notions.


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