Adultery Decriminalized: Supreme Court

September 28, 2018 12:11 AM

In a historic verdict, the Supreme Court on Thursday declared unconstitutional Section 497 of the Indian Penal Code which punished only men for having sexual relationship with a married woman.

In a unanimous verdict, a five-judge Constitution Bench headed by Chief Justice Dipak Misra said the archaic Victorian era law violated a woman’s right to equality and right to non-discrimination guaranteed under Articles 14 and 15 of the Constitution as it treated women as chattels.

The court said the law on adultery violated a woman’s sexual autonomy and deprived her of dignity.


But the Bench, however, said adultery could be used as a ground for divorce by a husband or a wife in matrimonial proceedings.

While declaring the penal provision on adultery unconstitutional, CJI Misra cautioned that the verdict should not be taken as a licence to indulge in such acts.

The top court rejected the Centre’s demand to make adultery gender-neutral and keep it on the statute book in order to protect sanctity of the institution of marriage.

In all there were four concurring verdicts. The first one by the CJI for himself and Justice AM Khanwikkar and then one each--separate but concurring verdicts by Justice RF Nariman, Justice DY Chandrachud and Justice Indu Malhotra--who all declared Section 497 of the IPC unconstitutional.

According to Section 497, whosoever has sexual intercourse with the wife of another man is guilty of adultery, which is punishable with imprisonment of either description for a term which may extend to five years, or with fine, or with both. It says the woman in question can’t be punished as an abettor.

An Italy-based NRI--Joseph Shine–has challenged the provision which prescribes a jail term of up to five years or fine or both, terming it “unjust, illegal and arbitrary and violative of citizens’ fundamental rights”.

He questioned the gender bias in the provision drafted by Lord Macaulay in 1860. He also challenged Section 198(2) of the Criminal Procedure Code which allows a husband to bring charges against the man with whom his wife committed adultery.

While reserving its verdict, the top court had on August 8 rejected the Centre’s argument to make gender-neutral Section 497–which penalizes only men for adultery, saying it would amount to amending the criminal law which it could not do.

“Reading down means restricting a provision…If we make it gender-neutral we will be expanding the scope and ambit of the law to include women…It would amount to amending the law…We can’t do it,” the Constitution Bench headed by Chief Justice Dipak Misra had told Additional Solicitor General Pinky Anand.

The Centre had defended the British-era provision, saying it was needed to protect the sanctity of institution of marriage and the court should make it gender-neutral by replacing the husband with spouse. She cited a recent Supreme Court verdict in which it declared sex with minor wife as rape despite the law treating it as an exception to rape law.

But the Bench had said that was a case of interpretation and not re-writing the criminal law. It had refused to buy the Centre’s submission that the Law Commission of India was actively considering the issue since December 2014.

The Centre had maintained that striking down Section 497 of the IPC and Section 198(2) of the CrPC would prove to be detrimental to intrinsic Indian ethos which gave paramount importance to the institution and sanctity of marriage.

In an affidavit filed in the court, the NDA Government had earlier said, “Decriminalisation of adultery will result in weakening the sanctity of marital bond.” It said the provisions of law under challenge had been specifically created by the legislature in its wisdom to protect and safeguard the sanctity of marriage, “keeping in mind the unique structure and culture of Indian society”.

However, terming Section 497 of the IPC as “manifestly arbitrary”, the Bench said it went against principle sexual autonomy.

Interestingly, Justice DY Chandrachud’s father had earlier upheld the validity of Section 497 of the IPC.

Justice DY Chandrachud said a woman had sexual autonomy within marriage and marriage did not mean ceding this autonomy. He said ability to make sexual choices is essential to human liberty and even within private zones, an individual should be allowed to make her choice, said Justice Chandrachud.


(Published with thanks from The Tribune)

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