Adultery no longer a crime as Supreme Court strikes down Section 497
SC says adultery law that only punished a married man for consensual relations is unconstitutional
New Delhi: The Supreme Court on Thursday ruled for equality with a Constitution bench unanimously striking down as unconstitutional the adultery law that only punished a married man for having consensual relations while exempting the woman from punishment.
The court found section 497 of the Indian Penal Code, 1860, which governs adultery to be “arbitrary and violative of Article 14 (right to equality) of the Constitution”. The provision imposes culpability on the person who has sexual intercourse with a woman who is, and whom he knows or has reason to believe to be, the wife of another man, without the consent or connivance of the husband.
Chief Justice of India (CJI) Dipak Misra, who led the five-judge Constitution bench that also included Justices D.Y. Chandrachud, Indu Malhotra, A.M. Khanwilkar and R.F. Nariman, upheld the tenets of privacy in the marital sphere. Criminalizing adultery would amount to “immense intrusion into the extreme privacy of the matrimonial sphere” and is “unlikely to establish commitment”, the chief justice said.
“Mere adultery cannot be a crime. But if any aggrieved spouse committed suicide because of a life partner’s adulterous relation and evidence is produced, it could be treated as abetment to suicide,” said CJI Misra.
The 158-year-old provision was also quashed upon examination of its underlying patriarchal notion that conceives of women as property and thus the need to realign the law.
Justice Chandrachud, in his concurring judgement, held that the law was also based on sexual stereotypes that view women as being passive and devoid of sexual agency.
Justice Chandrachud held that there was “manifest arbitrariness” in section 497, which deprived a woman of her agency, autonomy and dignity. “Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary,” he said. Justice Chandrachud also questioned how the law failed to recognize the agency of a woman whose spouse was engaged in a sexual relationship outside of marriage.
“Parameters of fundamental rights should include rights of women. Individual dignity is important in a sanctified society. The system cannot treat women unequally. Women can’t be asked to think what a society desires,” Justice Misra said.
The verdict also goes to show how jurisprudence around the subject of criminalizing adultery, constitutional morality and sexual agency has evolved through the years. “Decriminalizing adultery is a welcome step on so many levels. It reflects the journey the law has taken over the years. There was a time when a bench comprising Justice D.Y. Chandrachud’s father had upheld its criminality. So it has been a beautiful journey of interpretation of constitutional morality and guarantees to have found a new meaning in today’s times,” said lawyer Aishwarya Bhati.
The court was hearing a batch of petitions challenging the constitutional validity of the legal provisions governing adultery, in so far as it discriminated against men.
The counsels for the petitioners had asserted section 497 to be in violation of Article 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, caste or sex) and 21 (right to life) of the Constitution of India, as it was heavily gender biased.
“Criminal law is supposed to be neutral. Section 497 is prejudiced against males and imposes an excessive penalty,” it was submitted.
The petitioners also sought that section 497 be looked at from a fresh perspective in light of the judgement of the Supreme Court on the right to privacy.
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First Published:27 Sep 2018, 11:47 PM IST
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