Five-judge Constitution bench of the Supreme Court, led by Chief Justice Dipak Misra and comprising of Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra on 27 September 2018, gave an unanimous judgement of striking down Section 497 of the Indian Penal Code dealing with the offence of adultery, holding it as manifestly arbitrary, archaic and violative of the rights to equality and equal opportunity to women and men.
Calling the law archaic and saying that it violates Articles 14 and 21 of the Indian Constitution the justices said that: “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.’
Section 497 in The Indian Penal Code
- Adultery.—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 not be punishable as an abettor.
According to the adultery law, a man could be punished for having a sexual relationship with a married woman without the consent of her husband. The petitioners wanted Section 497 of the IPC to be made gender neutral.
Basically, the section was punitive for men only as no woman could be punished for adultery and at the same time, a woman had no remedy for her husband having an adulterous relationship with another woman.
It is bizarre how a sexist provision that clearly created inequalities for not just one but both the sexes, was allowed to exist and practised since the colonial era.
The apex court, which held adultery as a relic of the past, said that the autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices.
The Chief Justice of India (CJI) Dipak Misra read out the judgment on behalf of himself and Justice AM Khanwilkar. “Thinking of adultery as a criminal offence is a retrograde step,” the CJI said in court. Mere adultery can’t be a crime unless it attracts the scope of Section 306 (abatement to suicide) of the IPC, the CJI held.
A FEW SNIPPETS FROM THE JUDGEMENT
- Law perpetuates a gender stereotype that men, possessing sexual agency are the seducers: Justice Chandrachud and Khanwilkar
- The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by: Justice Indu Malhotra
- “At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ‘romantic paternalism’ which stems from the assumption that women, like chattels, are the property of men,” said CJI Misra and Justice Khanwilkar
- Section 497 deprives a woman of agency and autonomy and dignity: Justice Chandrachud
- Ancient notions of man being perpetrator and woman being a victim no longer holds good, said Justice Nariman
In conclusion, the judgement has been long overdue and decriminalization of adultery is a welcome move. A look at the adultery laws in other countries of the world is a clear indicator of how ancient the Indian provisions were. Adultery, though still as incorrect and morally corrupt is not a criminal offence; it relates to a relationship and must be governed by family laws. The sanctity of marriage is in no way protected by jailing or fining the perpetrator, who was also always the man. There was a lot that was wrong with Sec. 497 including but not limited to- it being a sexist and discriminatory provision for both men and women, criminalising an act that doesn’t necessarily affect the State and is therefore not a crime. Post the judgement, adultery is now not a crime but only a civil offence.
Featured Image courtesy: The Hindu.
