A five-judge Constitution Bench, led by Chief Justice of India Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra on September 27 held that adultery is not a crime and struck down Section 497 of Indian Penal Code, a 150 year-old law.
Section 497 says “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 offense 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”.
The law does not apply in the case where a married man has intercourse with an unmarried woman or an act of intercourse between an unmarried man and unmarried woman. An act under the said Section amounts to an offence only when the act is done between a married man and a married woman who is the wife of another man. It is pertinent to note that if the married man has sexual intercourse with a woman with the consent of her husband, the act does not amount to adultery. If such an act is committed by her without her husband’s consent, then it amounts to adultery. In nutshell, the act is not regarded to be an offence or can be ‘cured’ of its criminality if the husband of the married woman consents to her having intercourse with another man. In addition to this, Section 198 of the Code of Criminal Procedure gives only the husband the right to file a case against the man involved in the act of adultery.
Hence Section 497 merely reinforces the archaic thinking and sexual stereotype that a woman “belongs’ to a man and cannot have her own thoughts or opinions even if she had voluntarily consented to the act of intercourse. Section 497 treats a married woman as the commodity of her husband. Adultery is not a crime if the husband connives or consents to his wife’s extra-marital affair. Section treats a married woman as her husband’s “chattel”. The provision is a reflection of the social dominance of men prevalent 150 years ago. It is a Victorian era provision.
The Supreme Court said, “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It is manifestly arbitrary and it is time to say that husband is not the master of his wife. Legal sovereignty of one sex over the other is wrong”. Therefore Section 497 is an extremely archaic patriarchal law. It treats wife as the property of the husband. This law deprives married women the agency of consent. It violates the woman’ s right to dignity and equal opportunity and results in infringement of Articles 14,15 and 21 of the Constitution. Parameters of fundamental rights should include rights of women. Individual dignity is important in a sanctified society. System can’t treat women unequally. Women can’t be asked to think what a society desires. Any provision treating women with inequality is illegal and unconstitutional. Equality is the governing principle of a system. Husband is not the master of the wife.
Saying so, the Supreme Court struck down Section 497 of Indian Penal Code, 150 years old colonial law.
We cannot forget Sowmithri Vishnu case. On May 27, 1985 in Sowmithri Vishnu versus Union of India, a three-judge bench headed by then CJI Y.V.Chandrachud dismissed a petition challenging the validity of section 497 of IPC, which dealt with the offence of adultery. Then the Court said, “It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned”. However now, the court in order to establish equality and to uphold women’s dignity has struck down Section 497 IPC
Another point done away with is: Section 497 punishes only man and not the wife/woman. By striking down the Court has established equality of gender.
Many including religious leaders may now think the judgment striking down Section 497 IPC shall give rise to adultery or illegal sex within married life. Law is different from morality. Here the Court observed that two individuals may part if one cheats, but to attach criminality to infidelity is going too far. Besides, there is no data to back claims that abolition of adultery as a crime would result in “chaos in sexual morality” or an increase of divorce. How married couple deal with adultery is “absolutely a matter of privacy. Loss of moral commitment in a marriage creates a dent in the relationship, but it is left to each individual to deal with the problem.
However though adultery now is not a crime, it is immoral. Hence the Court said adultery still will continue to be a ground for divorce. It can also attract the section 306 (abetment to suicide) of the Indian Penal Code.
However, I feel this judgement will affect the sanctity of marriage. Illegal relationship in married life will really hurt the spouse, the children and the family. Such intentional action will impinge on the sanctity of marriage and sexual fidelity encompassed in marriage. Women will be the sufferers more than men. Majority of women in our country are confined to four walls while men are out in public. Adultery can be a ground for divorce. Then, divorce is not the aim of marriage. Peaceful co-existence till the end as a family is the aim of marriage.
(Published on 01st October 2018, Volume XXX, Issue 40)