Written by: Sushmi Verma, Student, St. Wilfred's College of Law, Panvel, Mumbai
In September 2018, a five-judge Constitution bench comprising of Chief Justice Dipak Misra and Justices R F Nariman, D Y Chandrachud, A M Khanwilkar and Indu Malhotra declared Section 497 as unconstitutional and struck it off the Indian Penal Code. Adultery was now no longer a crime. The section had been challenged by Joseph Shine, an Indian businessman based out of Italy, with roots in Kerala, in the form of Public Interest Litigation (PIL). This decision was welcomed by lawyers, activists and the general public. However, adultery can still be a ground for divorce and is a civil wrong.
Section: 497 was termed as an archaic law not relevant to the current times. It violated the fundamental principle of equality, ingrained in our Constitution. The dictionary meaning of adultery is a “voluntary sexual intercourse between a married person and a person who is not their spouse”. Section 497 however narrowed down its scope, making it an offense which can be committed only by a man when he had sexual intercourse with the wife of another man without the latter’s consent .Under Section 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 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.”
Issues: Adultery is a term that is gender neutral, however the law itself was gender biased. It had many ambiguities. It was discriminatory to both men and women. While it takes two (man and woman) to commit the act of adultery, the punishment of it was supposed to be solely borne by the man involved. The man was perceived as the predator and seducer, while the woman could be not held accountable even as an abettor. In the current times, such theories do not hold good. The law also violated the rights of equality of a woman by creating a perception that man was the sole master of a woman. The act of adultery was criminal only if it was done without the consent of the husband of the woman, thus reducing the status of the woman to a mere property of her husband. The implication that it is not an offence if the husband gives the consent deprived the woman of any agency. The aggrieved wife, whose husband was found to be in the adulterous relationship, could not take any action against her husband. This law was against the dignity and the concept of individuality of woman. It also created an arbitrary distinction between married woman and an unmarried woman, widow and divorced woman. A man who had sexual relations with an unmarried woman or widow or a divorced woman was not penalized by the law.
The law was also intrusive to a marriage. The state has no right to interfere in the matters of husband and wife. While infidelity can be said to be immoral, to make it a criminal offence was taking it too far. Some married couples might seek divorce when they encounter infidelity in their marriage, while others might choose to forgive and move on. And for a few, circumstances might prevent them to opt out of the marriage. But, however they choose to react to the act of adultery; it is completely a matter pertaining to the relationship between the couple. Hence, an act which is perceived to be immoral by the society is not necessarily punishable by the law.
The maximum punishment for the act of adultery was imprisonment of five years with fine, or both. It was extremely difficult to get direct proof to prove the act .The case had to rely mostly on circumstantial evidence. Past instances of cases related to adultery in courts show that the law was misused in dowry cases and in divorce cases, to avoid giving maintenance to wives.
History: The constitutionally validity of Section 497 has been challenged time and again. The first case was of Abdul Yusuf Aziz in the year 1954.He when charged with adultery contented that Section 497 was in conflict with Article 14 and 15 of the Constitution.. The same question came up again in the cases of Sowmithri Vishnu (1985), a Madras school teacher who challenged the law in the Supreme when her husband charged her with adultery as part of divorce proceedings. V Revathi (1988) had filed a petition on similar grounds. On all the above occasions, the Court had reiterated the validity of the Section 497 on the very same grounds which were used later in striking it down in Joseph Shine.
International Perspective: The Judges noted that most of progressive countries around the world have done away with laws that adultery. It was no longer a crime in countries like Australia, China and Japan. In 2015, South Korea struck down a similar law where a man could be imprisoned for two years or less for the act of adultery .However, Islamic Countries like Saudi Arabia, Afghanistan, Pakistan and Bangladesh and Iran, continue to treat adultery as a crime. It is also illegal in 21 states in US, including New York.
Implications: This judgement will have far reaching implications on the society. It is an important step ahead for women’s freedom and liberty. It gave women the right of choice. However, legal experts sounded a note of caution. A few of them were apprehensive that it would lead to a rise in extra marital relationships and subsequently divorce cases. They feared that decriminalization of adultery might destroy the very foundation of marriage.
REFERENCES:
1. Alok Prasanna Kumar, Decriminalizing Adultery is not enough, available at https://www.thehindubusinessline.com/news/sc-declares-penal-provision-on-adultery-unconstitutional/article25055821.ece#
2. Tejaswi Pandit, Adultery [S. 497 IPC and S. 198(2) CrPC,SCC Online,21 February 2019
3. Sudhir Mishra, Should Adultery be a Crime, Dec 2017 available at https://www.thehindu.com/opinion/op-ed/should-adultery-be-a-crime/article22180770.ece
4. Abha Singh, Decriminalization Of Adultery – A Setback To The Institution Of Marriage In India, September 2018 available at https://www.outlookindia.com/website/story/decriminalisation-of-adultery-a-setback-to-the-institution-of-marriage-in-india/317282
5. Disha Chaudhry, Decriminalization of Adultery, Supreme Court Observer,December 2018 available at https://www.scobserver.in/beyond-the-court/cases-that-shaped-india-in-2018-5-decriminalisation-of-adultery
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