The Supreme Court on September 27, 2018, abolished a 158-year-old law that deemed adultery as a punishable offence committed by one man against another. The law was scrapped on the grounds that it treated women as possessions rather than human beings. On this historic judgment, SC puts the remark that adultery is no longer a crime, but it will continue to be the ground for divorce. However, if an aggrieved spouse commits suicide because of his or her partner’s adulterous relationship, then — if it is proven — it could be treated as abetment to suicide.
In its 4-1 majority judgment, a five-judge constitutional bench declared Section 497 of the IPC unconstitutional as it violated Articles 14 (right to equality); 15(1) (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth); and, 21 (protection of life and personal liberty). The bench comprising Chief Justice of India Dipak Misra, and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, was deciding a petition filed by Joseph Shine, a businessman from Kerala who lives in Italy. The petitioner was represented by Kochi-based advocates Kaleeswaram Raj and his daughter Thulasi K Raj and Delhi-based advocate Suvidutt Sundaram. The court also struck down the part of Section 198 of the Criminal Procedure Code that allowed only a man to file an adultery case and not a woman against her husband.
Section 497 of IPC is 158 years old a Victorian-era anti-adultery law introduced during the British regime. According to the law, “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 the offence of rape, is guilty of the offence of adultery and shall be punished.”
In court, Additional Solitary General Pinky Anand submitted that adultery is a public crime. By backing the Union government side, she argued that adultery is designated as an offence keeping in mind the sanctity of marriage as an institution. She added that Law must be evolved as per societal developments in India, and not in western societies and other countries. The Government openly supported retention of Section 497 IPC, saying its necessary to protect the institution of marriage.
The SC abolished the section 497 from IPC by making some progressive comments. “Any provision of law affecting individual dignity and equality of women invites the wrath of the constitution. It’s time to say that the husband is not the master of a wife. Legal sovereignty of one sex over other sex is wrong,” read out Chief Justice Misra from the judgment written for himself and Justice A M Khanwilkar. The judgment held Section 497 to be “manifestly arbitrary”.
The judgment of CJI Misra held that Section 497 violated a woman’s right to dignity, resulting in infringement of Article 21 of the constitution. The judgment borrows from the findings of Justice Nariman’s judgment in Triple Talaq case. The Court, however, clarified that adultery would be a ground for divorce. It was also stated that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the IPC.
The judgment also struck down Section 198(2) of the Code of Criminal Procedure, as a consequence of striking down of Section 497 IPC.
Justice R F Nariman wrote a separate judgment to concur with the judgments of CJI Mira and Justice Khanwilkar and stated that Section 497 was an archaic provision which had lost its rationale. “Ancient notion of man being the perpetrator and woman being a victim of adultery no longer holds good,” observed Justice Nariman. It treats women as chattel and has chauvinistic undertones.
Justice Chandrachud in his separate but concurring opinion said that Section 497 was destructive to woman’s dignity. “Autonomy is intrinsic in dignified human existence.497 denuded the woman from making choices. The law in adultery is a codified rule of patriarchy. Society attributes impossible attributes to a woman, Raising woman to a pedestal is one part of such attribution,” he said.
“Respect for sexual autonomy must be emphasised. Marriage does not preserve ceiling of autonomy 497 perpetrates subordinate nature of woman in a marriage,” these were his concluding remarks.
Few people have backed the existence of adultery law and argue that criminalization of adultery is important as it safeguards the institution of marriage. Further, some people believe that adultery as more of a moral offence than a criminal one, and that it should be seen as the moral decay of our society. India is still a highly conservative country, and most people here regard having sex with another man’s wife as horrifying, highly immoral, and deeply offensive.
Dipesh Nepal, A student from Tripura University, says that abolishment of section 497 may destroy families and now it’s all about set as on the ground of ethics & morality only, not a crime. As we know that morality and ethics are decreasing in the society day by day, therefore a strict law should be here to restrict people from breaking families, and safeguards institution of marriage. Abolishing section 497 can only raise a host of insuperable problems in the future.
By responding on the issue, Parag Sarmah, ex-student of Sikkim University, stated that it’s a 50-50 call. “Because in one side SC provides some freedom and equality to women, but on the other hand it may affect the culture and rituals of marriage in India. The increasing influence of the concept of westernisation and modernisation increasing may be misused to do extramarital affairs,” he added.
“For me, no law can lower any crime unless the mentality is changed. Therefore, adultery law also has nothing to do with the crime. Abolishing the Section 497 of IPC is just to promote equality and stay far from the gender stereotypes,” asserted Kiran Devi, ex-student of Assam University.
Rishab Sarmah and Sumit Acharya, both the student of Darrang College of Tezpur, have expressed their views regarding the verdict. In Rishab opinion, the verdict doesn’t do anything towards gender equality. He is of the view that instead of focusing on adultery law, the attention should be given to practices like dowry and domestic violence.
However, Sumit hailed the verdict and believes that it fosters gender equality within the marriage. “Extramarital affairs takes place when one is unsatisfied with another. It may be emotionally, physically or psychologically. In some cases, financial problems are also the factor. While Woman rather than choosing this life make other option, commit suicide, men were free to some extent. This scrapping of the law will bring a change. A woman can take a divorce if she feels that she is unsatisfied or unhappy with the partner to stay further,” he said.
“With paying respect to the honourable supreme court’s decision, in my view, the abolishing adultery as a criminal offence brings more complicated situations rather than solving out the problems of a family. It may lead to an increased number of broken families,” said Jeenen Narzary, an ex-student of the Bodoland University of Kokrajhar.
Some critics put that equality is the core of our constitution. Can the women’s right to freedom be ignored under the pretext of ‘protecting them’? Does marrying a woman allow the man to rule her? Is it fair to let the man decide the fate of woman ignoring the very core of Indian constitution? Yes, a law should be equal, but it should not violate the fundamental rights of the constitution. Today’s world is much more advanced, and women are doing very well in making it so. They can take their decisions. Anyone in this world needs someone to ensure one’s guidance. But guidance should not lead to confinement. In short, Section 497 IPC affects the right to life of a woman under Article 21 of the Constitution of India.
To conclude, just because adultery is no longer a crime doesn’t mean there will be an orgasmic eruption of adultery in the country. The verdict is not promoting the adultery; it just says that adultery is not a criminal offence. Adultery is legal now but not ethical. Confidence on each other is a concrete pillar in marital life and ethics builds a healthy society. Therefore, this becomes the private matter of the individuals. Hence, the court has set adultery a concern for only civil cases that deal with the dissolution of a marriage.
( The writer along with all the respondents respects Supreme Court’s verdict)