“When reason of law ceases, the law itself also ceases”
The Supreme Court of India in its judgment dated 27 September, 2018 struck down the pre-constitutional provision of adultery (Section 497) from the Indian Penal Code (hereinafter referred to as IPC).
What is Adultery?
In simple terms, Adultery refers to voluntary sexual intercourse by a married man or woman outside the marriage, i.e., with someone other than his or her own spouse. In India, Section 497 of IPC which has now been struck down provided:
497. 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.
Also Section 198(2) of Criminal Procedure Code(hereinafter referred to s Cr.P.C) 1973 provides:
198. Prosecution for offences against marriage.
(2) No person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.
From the above provisions, it can be understood that:-
- Section 497 IPC only laid down punishment for the male paramour. The married women who commit adultery with him are not punishable, not even as an abettor.
- If a man has sexual intercourse with a married woman with the consent or connivance of her husband no adultery is committed.
- Only the husband of married woman is considered as an aggrieved person and has been given the right to prosecute.
- Women whose husband indulge in sexual intercourse outside marriage were given no right whatsoever to prosecute their adulterer husbands or his paramour.
- There is no adultery if a married man engages in sexual intercourse with an unmarried or divorced woman.
The Indo-Brahminic traditions prevalent in India mandated the chastity of woman to be regarded as her prime virtue, to be closely guarded to ensure the purity of male bloodline. The Hammurabi Code prescribed death by drowning as punishment for adultery for a married woman and her lover. The Manusmriti and other Hindu texts also provided punishment for adultery.
The Indian legal system is by and large based on English jurisprudence. However, it is interesting to note that adultery has never been a crime in England except for 10 years during the reign of Oliver Cromwell. Later, in England, adultery was conceived more as an ecclesiastical offence than a crime against state. Adultery was known as tort of ‘criminal conversation’ under English law entitling the husband to get damages for adultery committed with his wife on the basis that he has a proprietary interest in his wife. The position changed after enactment of Matrimonial Clauses Act 1857 and Law Reforms (Miscellaneous Provisions) Act of 1970. Presently, adultery is a ground for divorce for both spouses in England.
The History of Section 497, IPC
IPC was enacted in 1860. It was a time when polygamy was practiced in India and marriage was considered as a sacrament. Lord Macaulay who was the Chairman of first Law Commission of India was against the inclusion of adultery as a crime in the IPC and advocated for treating adultery as a civil injury. But his arguments were not accepted by the other law commissioners. They deliberated on the issue and concluded that given the condition of women in India where they have to compete for attention of their husbands or are married while they are still children the penal law on adultery will worsen their condition. Hence it was decided to hold the male offender alone as liable for punishment and thus Section 497 was added to the code. Section 199 of the CrPC of 1898 was retained in CrPC 1973 as Section 198(2).
In the year 2003 Justice Malimath Committee suggested that section 497 should be made gender neutral but the suggestion was not accepted.
Judicial Approach to Section 497
Section 497 of IPC came to be challenged before Supreme Court in the following cases:
- Yusuf Abdul Aziz v. State of Bombay – In this case, the Supreme Court held that Section 497 is a special provision made for women and is saved by Article 15(3) and was not violative of Article 14 and 15.
- Sowmithri Vishnu v. Union of India – The Supreme Court ruled that Section 497 was enacted to protect the sanctity of matrimonial home and also accepted the position that it is usually the man who is this seducer and woman is not the author but victim of adultery. Thus the court upheld the constitutionality of Section 497 stating that it is for the legislature to consider the question of amending Section 497 with regard to transformation in society.
- V. Revathi v. Union of India and Ors. – In this case, the court held that section 497 provides even-handed justice as it does not allow the husband to prosecute the adulterous wife or the wife to prosecute the adulterer husband.
Joseph Shine v. Union of India
Mr. Joseph Shine, a citizen of India residing in Italy filed a PIL in the Supreme Court under Article 32 of the Constitution of India challenging the constitutional validity of Section 497 of IPC and Section 198(2) of CrPC on the grounds that they violate Article 14, 15 and 21 of the constitution.
- Whether Section 497 of IPC and Section 198(2) of CrPC are unconstitutional on the ground that they violate Article 14, 15 and 21 of the Constitution
- Whether Section 497 suffers from manifest arbitrariness
- Whether adultery should be treated as a criminal offence
- Whether section 497 invades dignity of women and violates the right to sexual autonomy of an individual
The case was presided by a bench of five eminent judges:
- Former Chief Justice of India Dipak Misra
- A.M. Khanwilkar, J.
- R.F. Nariman, J.
- Dr. Dhananjay Chandrachud, J.
- Indu Malhotra, J.
The Honorable Supreme Court struck down Section 497 of IPC and Section 198(2) CrPC as unconstitutional and also held that –
1. Husband is not the master
The Chief Justice of India held that Husband is not the master and women cannot be asked to think as he or the society desires. The provision of adultery reduces the identity of women to a mere ‘chattel’ of the husband. What is therefore punishable as “adultery” is not ‘adultery’ per se but the proprietary interest of a married man in his wife. The court reiterated that a man and woman are equal partners in marriage.
2. Section 497 IPC – reflective of social dominance, patriarchy and perpetuates gender stereotypes
Under Section 497, women are treated as subordinate to men as there is no adultery if the wife has sexual intercourse outside marriage with consent or connivance of husband. This itself is a flagrant instance of the assumption of control over women by men. She is treated as a victim of adultery even though she indulges in adultery out of her free will. The provision also does not give right to wife to prosecute the adulterous husband.
In Navtej Singh Johar v. Union of India it was held that “A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by grounds prohibited in Article 15(1) of the constitution“
The special provisions provided to women by virtue of Article 15(3) is to integrate them into the society and to relieve them of patriarchal torture. The court rejected the contention that the Section 497 is saved by Article 15(3) and held that section 497 violates the non-discrimination principal under Article 15.
3. Manifestly arbitrary and violative of Article 14
Article 14 and 15 of the Constitution form the pillar against the vice of arbitrariness. Equality is antithetic to arbitrariness. The court held that Section 497 is manifestly arbitrary. The judgment in Shayara Bano v. Union of India provided for the test of ‘manifest arbitrariness’ to be applied to invalidate any law. Manifest arbitrariness means something that is done by the legislature in a capricious or irrational manner without adequate determining principal or something which is excessive or disproportionate. Section 497 also fails the test of reasonable classification as propounded in the case of State of West Bengal v. Anwar Ali Sarkar. Section 497 IPC makes two classifications-who has right to prosecute and who can be prosecuted. The court held that such classification is based on historical context when IPC was enacted and women had no rights independent of their husbands. Section 497 denies substantive equality to women and is violative of Article 14.
4. Invasion of dignity and violative of right to sexual autonomy and privacy
Section 497 invades dignity of woman by neglecting her independent identity. It was held in Charu Khurana v. Union of India and others that Dignity is the quintessential quality of a person. The sexual autonomy of an individual to choose his or her sexual partner is an important pillar and inseparable facet of individual liberty. The right the sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity.Thus, Adultery is a choice and not a crime.
The court also observed that treating adultery is a crime for tantamount to state entering into a real private realm. Section 497 does not protect the institution of marriage as adultery may not be the cause but the result of an unhappy marriage. It was held that Section 497 denies constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21.
The decisions in case of Yusuf Abdul Aziz,Sowmithri Vishnu and V. Revathi were overruled by the court.
Non-criminalization of the adultery in India is undoubtedly a progressive step for the individual, society and the nation as well. The judgement is in line with contemporary jurisprudence and various international conventions. The legal position in India is that adultery is now recognized only as a grounds for divorce. However, there is another aspect that needs to be addressed. Adulterous conduct of the father or mother may have any effect on the children and their upbringing. Also, the position regarding the children born out of these adulterous relationships is also not clear. If Section 497 was not abolished but only modified to include both spouses then it would have led to prosecution of a spouse for having sex outside marriage when they are living separately under judicial separation or when their divorce is pending.
Sydney Smith has said : “when I hear any man talk of an unalterable law, I am convinced that he is unalterable fool”. Thus to assume that law is certain at all times and in all circumstances is an illogical notion. Law and Society are connected. Law must take account of changes happening in society and the practices which are antithetical to constitutional morality must be abolished.
 Joseph Shine v. Union Of India 2018 SCC Online SC 1676
 A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 ( G.H. Huttmann, The Bengal Military Orphan Press,1837).
 1954 SCR 930 : AIR 1354 SC 321
 (1958) Supp. SCC 137 : AIR 1958 SC 1618
 (1988)2 SCC 72
 R.F. Nariman, J. in Joseph Shine v. Union of India
 Writ Petition (Criminal) No. 76 of 2016
 E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555
 (2017)9 SCC 1
 AIR 1952 SC 75
 (2015)1 SCC 192
 Navtej Singh Johar v. Union of India ,Writ Petition (Criminal) No. 76 of 2016