Facts of the Case
Joseph Shine, an Indian living in London, filed a writ petition in Supreme Court as to the constitutionality of Section 497. Section 497 of the Indian Penal Code, 1860 (IPC) provides for the offence of adultery only for men. A person is entitled to be punished with punishment for five years or fine or with both fine and imprisonment. When a man commits an offence of having sexual intercourse with the woman who is the wife of another man, then he commits the offence of adultery. The offence will not come under the purview of adultery if the man against whose wife this intercourse takes place has given his consent or it was done with the connivance of that man. That means if the husband agrees to the sexual intercourse of his wife with another man then it will not amount to adultery treating women as a mere commodity of men. The women who did the intercourse will not be considered as the adulterer or the abetter and will not be given criminal punishment, though it may amount to divorce or ground for the dissolution of marriage. Under the Criminal Procedure Code, 1973 (CrPC), Section 198(2) deals with the process of husband filing the case for the offence committed against him by the wife which is the mechanism for dealing with the cases of adultery under IPC.
The question about the stance of adultery in law as to its applicability and criminal nature has been in question for over some time. The case of Yusuf Aziz V. State of Bombay 1954 AIR 321, was among the first cases before Supreme Court of India that challenged the constitutionality of the provision of adultery given in Indian Penal Code, 1860 and also said that it was unequal where only men were given punishment. The court said that the women were the victim in instances of adultery and the court can make special provision for women. Thus, it was completely valid. In another instance of Sowmithri Vishnu V. Union of India and anr.1985 AIR 1618, the court said that women are protected from being prosecuted for the offence of adultery and only the man against whom this offence is committed is allowed to file the case for the infringement of his right in marriage by the intercourse of his wife with another man. In this case, YV Chanderchud, J. also gave judgement. The third case before Supreme Court where rejected the invalidity of adultery is of V. Revathi V. Union of India and ors., 1988 AIR 835. In this case, it was held that the adultery was in favour of women in society and thus, doesn’t go against any provisions of the Constitution of India.
- Dipak Misra, CJI and A. M. Khanwilkar, J.
The then chief justice of India, Sh. Dipak Misra presided and gave the judgement for himself and Justice A. M. Khanwilkar. He talked about the dignity of the women and the individuality enshrined in the Constitution. It is this individuality of women that gives her the right to be treated equally and at par with men. CJI said that the due to the jurisprudence of law and the growth of it has led to the fact that women are entitled to same right as men and the statute that takes away that right or draws a prejudice on the basis of gender is bad law. He cited various previous judgements and said that looking and referring to these judgements in a detailed manner provides that these laws are not in fact in favour of women but in actuality treats them like a commodity having no originality of their own. Women are not given prerogative to hold their husband liable who committed the offence of adultery.
He also said that Section 497 violated both Article 14 and 21 of the Constitution where men and women were not given similar treatment and the dignity and individuality was women was being interfered with. He wrote that adultery is a civil wrong and putting under criminal nature will be repressive treatment of all. He, thus, concluded that Section 497 in fact infringes the provisions of Constitution.
- F. Nariman, J.
Justice Nariman gave a concurring judgement highlighting that bigamy and adultery are different. Adultery is the one where the complete sanctity of the marriage is broken when a man have sexual relations with the wife of the other. Under bigamy, a man himself engages in marriage with a woman with the wife present. It is graver in nature as in bigamy there is the involvement of husband and wife while in adultery it also involves the third party. Thus, it can be treated as a civil nature crime where only divorce can be sort out but the third party cannot be given severe punishment of five years for having intercourse with the wife of other. He also looked at the procedural parameter of this section under the Code of Criminal Procedure to hold it outdated law.
Where laws are becoming more gender neutral with giving equal opportunity and treatment to women, the laws of adultery under Section 497 of IPC, 1860 is highly deeming and unfitting. It gives women the status of goods to be possessed by men, their husbands and withdrawing and removing completely of their own say. Thus, Section 497 indeed violates women’s right and is constitutionally invalid because it is against the Article 14 (Right to Equality), Article 15 (Right against bias) and Article 21 (Right to life and liberty).
- Y. Chanderchud, J.
Justice D. Y. Chanderchud gave the judgement hold the adultery provision unconstitutional and said that this provision puts women in the enslavement of men and highlights and brings forth only the patriarchy or male dominated behaviour in the society which needs to be rescinded for the betterment of the society. He further quoted the recent judgement of Navtej Singh Johar & ors. V. Union of India, and said that the privacy of the sexual intercourse with a person is the fundamental and paramount freedom granted under Article 21 of the Constitution for which no one can put a question over. Thus, the punishment under the IPC provides for the authoritarian male view of the society and put the women on the stance of inequality. He further said that it typecasts the role of women and is thus, violative of Article 15 of the Constitution.
- Indu Malhotra, J.
Justice Indu Malhotra gave the judgement that adultery can no doubt be said to be of morally incorrect but it is not sufficient to say that it goes on to be become criminally incorrect. She said that women cannot be compartmentalized into certain labels as they have their position and their value in themselves which requires them to be treated with same respect as men and if that is not ensured, then it goes completely against the provisions of the Constitution of India that guarantees the fundamental and principles rights in favour of women. Thus, keeping that in view, it can definitely be said that Section 497 is completely unjustified along with Section 198’s provision of CrPC, which has to be removed as it involves only civil nature of characteristics and not of criminality.
The five-judge bench has held that in the concurring judgement that Section 497 goes against the provisions of the constitution and is to be struck down. It is an archaic principle that violates the equality of men and women, and shows biasness or discrimination against women. This provision is arbitrary in nature and as a consequence it needs to be not given criminal importance. Adultery can be considered as of civil nature where it can lead to as a measure for the dissolution of marriage but punishment cannot be given for the commission of adultery as it is an offence that deals with marriage and its sanctity having the privacy of marriage involved between husband and wife and therefore, it can only lead to divorce. The infliction of punishment under IPC is unnecessary and is unconstitutional.
Apart from Section 497 of IPC, under Criminal Procedure Code, 1973 (CrPC), the provision of Section 198(2) is also to be taken down as it provides for the procedure in case of the commission of adultery and it is established that where the offence is taken down, its procedure has to be struck down as well. Thus, both Section 497 of IPC and Section 198(2) of CrPC are taken down by this judgement as being unconstitutional and arbitrary in nature and not involving criminal liability. This change in the provision will have retrospective effect. It cannot be said that the cases filed before this judgement and still pending will not come under the purview of this change in the provision as that would be giving it prospective effect.
This landmark judgement which came after so many years has definitely proven that the laws that go against the equality of women in the society will be scraped down and will no longer be valid. But it is to be seen that this law was followed for a long time and a lot of parties on either side of the dispute suffered because of the faulty and bad law. The question that comes to mind is why this provision was still in existence, even after so long, and given criminal importance. It goes against the fundamental principle of Constitution itself. The laws that treat women in subjugation to men and are completely unjustified should not be allowed to prevail and should be taken down. This will ensure maximum equality with complete freedom to all men and women. Women should be treated with dignity and not given the status of goods or in the possession or ownership of men. Thus, this judgement comes at a revolutionary stage where women are given societal importance and their significance.
In the end, it can definitely be said that this provision should have been amended a long time ago. It was highly discriminatory against women and men both. It did not give women the right to hold her husband liable if he committed adultery with the wife of another. In other instance, it held that if the husband gave the consent or connivance to her wife having intercourse with another man, then it will not amount to adultery. It treated women as the property of men, having no dignity or authority over their body and merely a servant of her husband. Section 497 was against the internationally acceptable principle of gender equality and had no place in the Indian law. It is taken down along with its procedural regulation, it being arbitrary and unconstitutional in nature.
 Writ Petition (Criminal) No. 76 of 2016
Author: Arushi Anand,
Vivekananda Institute of Professional Studies, 4th Year