Citation: 2018 SC 1676

Bench : CJI Deepak Mishra, Justice A.M khanwilkar, Justice Indu Malhotra, Justice D.Y Chandrachud, Justice R.F Nariman.

In India, there are certain laws which have become so archaic that they have lost their relevance over a period of time. The law related to Adultery was one of such laws. It had been defined in IPC under Section 497. The law was quite discriminatory and was set according to the options of the British era when there was no freedom, independence and the rights given to the people and also the patriarchal society was in prevalence. Hence the law had gone obsolete. Right one after another this law has been challenged multiple times in this long span of time and finally after 158 years of its inception, it has been struck down by the Supreme Court of India on 27th September 2018. 

Now let’s discuss it  in some more detail

Background 

Indian Penal Code was written at the time of Britishers and since then there have been very few amendments in the laws mentioned in it. So there was a need to inspect all the sections of the IPC as with the changing times, there is a need to add some crimes and remove some which used to exist in that time but now are irrelevant. Also, the laws and their punishments are highly influenced by the British point of view, and now the need of the hour is to change it and design it according to Indian standpoint. Thus, in February 2016, the President of India has called for a thorough revision of IPC in order to deal with the above-mentioned concerns.

In October 2017, Joseph Shine, a non resident Keralite, filed a petition in the Supreme Court of India challenging the constitutionality of Section 497 read with Section 198(2)²²of the CrPC. Section 497 used to criminalise the offence of adultery. It provided for the punishment to a man who engaged in sexual intercourse with another person’s wife without his consent. On the other hand the consenting women had been exempted from any punishment under this provision. Also this provision did not allow a woman to file a complaint against when she finds out that her husband has engaged in sexual intercourse with some other woman. Thus, this provision was considered discriminatory and in this case Supreme Court adopting a progressive approach struck down 158 years old adultery law.

Historical  Background

It was not the first time in the history that the constitutionality of this law has been challenged. In the case of Yusuf Abdul Aziz vs. State of Bombay³³ , a petition was filed in the High Court to determine the constitutional validity of this provision but the case was decided against the appellant.

In the case of Sowmithri Vishnu vs. Union of India⁴⁴, it was held that the task of making any law neutral is of legislation not court and court also held that “it is the man who is the seducer not the woman, the position may have undergone some change over the years but it is for the legislature to consider whether section 497 should be amended appropriately so as to make note of the transformation which society has undergone”. 

In an another case, Revathi v. Union of India⁵⁵, stated that it does not discriminate on the basis of sex, as neither it allows the wife of the offending person’s to prosecute him, nor does it allow the husband of the offending wife to prosecute her, hence non discriminatory. 

Now let’s first read and interpret what these two sections wants two say :

Section 497 of IPC defines adultery and stated that: 

“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 a case the wife shall not be punishable as an abettor”.

And Section 198(2) of CrPC stated that:   

“For the purposes of sub- section (1), 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 committed may, with the leave of the Court, make a complaint on his behalf.” 

Issues Raised

1. Does Section 497 of Indian Penal Code is unjust, arbitrary, unconstitutional and violative of Fundamental Rights?

2. Does Section 198(2) of the Code of Criminal Procedure, 1973 is unconstitutional and violative of Fundamental Rights?

Petitioner’s Argument

• The petitioner’s argued on the historical background on which this law has been set in british era and it is not relevant in contemporary times.
• Section 497 of IPC and Section 198(2) of CrPC violates Article 14 of the Constitution. The discrimination on the basis of sex has no rational nexus with the objective that the law actually wants to achieve. Women had no right to file a complaint if she finds out about her husband being engaged in sexual intercourse with some other women. Also, in order to showcase that women are being protected in this law as she is not even considered as an abettor, shows the male chauvinistic behaviour of society, that women do not generally know what they are doing and do not have a clear understanding of it.
• The petitioner also argued that the crime is only committed under this law if the husband has a problem with the women having sexual intercourse with other men, if husband has consented to it, no crime is done. This implies that women are some sort of chattel and do not even have complete control on their body.
• Also, petitioner’s stated that this law is also violative of Article 21 of the constitution in which two adults having sexual intercourse with each other come under Right to Privacy.
• Such legislation cannot be described as a beneficiary legislation under Article 15(3) of the constitution, as it takes away a woman’s right to prosecute also.

Respondent’s Argument

• Right to Privacy is not an absolute right and it is subject to certain reasonable restrictions. And Article 21 does not warrant protection of privacy to a person who is having sexual intercourse with a married person outside the marriage. 
• This provision is justified under Article 15(3) of the constitution as it is specially designed for the benefit of women. 
• Adultery as a crime is something which is morally outrageous to the society. Its perpetrators are liable to be punished. This crime violates the sanctity of the institution of marriage and family.
• Section 497 is hence, acting as a protector for the society from this immoral conduct which outrages the institution of marriage. Hence, it should not be struck down.

Judgement

The court in its judgement to this case struck down Section 497 of the IPC and held that this Section is violative of Articles 14, 15 and 21 and declared it unconstitutional. Court also held that Section 198(2) of the CrPC is also unconstitutional to the extent it is applicable to Section 497 of IPC. Thus court here overruled all the previous judgements passed in this matter.

• The court in explanation said that every individual has full autonomy to make decisions regarding their sexual life. 
• If any wrong has criminal sanctions it should be a public wrong, but in adultery cases the wrongs are considered as private wrong. The right to dignity provides that punishments should be granted only when absolutely necessary and a proper analysis should be done before deciding it.
• Also no one can treat a woman as a chattel or some property.
• This law is almost ancient and has been created in a period when there was no constitution and thus, in those times the constitutionality not even a question nut now in present times such patriarchal laws do not hold any significance.
• Though the act of sexual infidelity is morally wrong but it does not give sufficient conditions to criminalize the same. The harm principle contains 3 elements. 1) harm 2) a wrongdoing 3) public element. All of these elements are needed to be proved to classify a wrongful act as a criminal offence. 

Thus on above lines the Apex Court in its judgement declared that the law is quite discriminatory and is not consonant with the contemporary times and hence declared void. Thus, adultery as an offence has ceased to exist and now it can only n=be used as an excuse for divorce but its committers can’t be penalised.

Conclusion 

The court while declaring this law unconstitutional took a landmark step in the Indian legal history. The Supreme Court rightly recognised the principles of equality and women’s dignity. And once again by this judgement it has tried to improve the situation of women in a male dominated society. It clearly shows a positive sign and it is a way ahead towards women empowerment. This judgement preaches the idea of transformative justice.

Though the judgement is a progressive one but it totally rules out the crime of adultery from our laws and hence making the protection of the rights of a spouse in a marriage quite vulnerable. It somehow weakens the institution of marriage by giving absolute liberty by striking down adultery. Thus, this law is criticized on the notes of its socio- cultural impact. Thus this case gives a vague ending to the concept of Adultery. 

So we can see that this story does not end here with this case, in the future when certain advert circumstances will emerge and people will come to Apex court for justice and proper explanation, then it would be interesting to know what stands our judiciary will take. For now we have to keep content with what we have got from this case and have to leave the rest for the future. 

Endnotes

1.  https://indiankanoon.org/doc/1833006/

2.  https://indiankanoon.org/doc/854390/

3.  1954 AIR 321

4.  1985 AIR 1618

5.  1988 AIR 835

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