On September 27, 2018, history has been re-written, as the Supreme Court judgement on the Adultery Law in India, overturned the centuries-old law that prescribed a maximum imprisonment of five years to men for adultery. However, the offence still remains a valid ground for divorce. The top court, calling adultery a relic of the past, said Section 497 "denudes women from making choices".
The five-judge bench of the court which comprised of Chief Justice of India Dipak Misra, Justice A.M. Khanwilkar, Justice R.F. Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra pronounced the verdict, stating that Section 497 of the Indian Penal Code fell foul of Article 21 (Right to Life and Personal Liberty) and Article 14 (Right to Equality).
By declaring adultery and Section 497 as unconstitutional and that that it violates the women’s right to equality treating them like the property of their husbands, CJI Dipak Misra, read out from the judgment, “It’s time to say that (a) husband is not the master of (his) wife.” Stating that a wife was not a chattel of the husband, Misra added, “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. Legal sovereignty of one sex over other sex is wrong.”
"However, if any aggrieved spouse ended her life because of her partner’s adulterous relation, it could be treated as an abetment to suicide if evidence was produced", the CJI said. The CJI further said that Section 497 was manifestly arbitrary and offends the dignity of women. Stating that the beauty of our Constitution was that it includes ” I, me and you”, Misra said equality was the governing principle of a system. Justice Chandrachud said, "Section 497 destroyed and deprived women of dignity. Section 497 is based on gender stereotypes of the role of women. The provision is unconstitutional,” Chandrachud said.
Saying that Section 497 also deprived a woman of her privacy, he said, “Society has two sets of standards for judging the morality of men and women. The law is gender biased, gives unequal voice to partners.”
The judgement of CJI Misra claimed Section 497 violated a woman’s right to dignity, resulting in infringement of Article 21 of the Constitution of India. It borrows from the findings of Justice Nariman’s judgment in Triple Talaq case. The judgement also struck down Section 198(2) of the Code of Criminal Procedure, as a consequence of striking down of Section 497 IPC, as the Apex Court also declared Section 198(1) and 198(2) of the CrPC unconstitutional, as it allowed the husband to bring charges against the man with whom his wife committed adultery.
In 1985, the supreme court said, “It is commonly accepted that it is the man who is the seducer and not the woman,” and that making the law gender-neutral would allow for “a crusade by a woman against a woman.”
Unlike the country’s sexual assault laws in India which depends on the consent of the woman, the adultery law in India never considered the woman’s will. Though women couldn’t be punished under the provision, however, a husband could prosecute the man who had sexual relations with his wife, even if the wife was a voluntary participant in the act. A wife, on the other hand, could prosecute neither her husband nor those with whom he had engaged in extramarital affairs.
The adultery law in India had come under sharp criticism after an Italy-based Indian businessman Joseph Shine filed a Public Interest Litigation (PIL) last year challenging IPC Section 497, for treating women as possession of men. He claimed that the law is discriminatory. “When the sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability,” the PIL said.
The judgment stated that law must reflect the status of husband and wife as equals in a marriage, entitled to the constitutional guarantees of privacy and dignity. Respect for sexual autonomy is founded on the equality between spouses and partners and the recognition by each of them of the dignity of the other. “Marriage – whether it be a sacrament or contract – does not result in ceding of the autonomy of one spouse to another”, he observed. Justice Chandrachud sounded realistic and empathetic when he said: “The realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law”.
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