In a historic ruling, a Constitution Bench of the Supreme Court headed by Chief Justice Dipak Misra has unanimously struck down a patently unjust and gender discriminatory provision of the Indian Penal Code Section 497 which criminalised adultery. The law making adultery an offence was archaic and amounted to a clear violation of the fundamental rights, they declared.
The bench, which included Chief Justice Dipak Misra and Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, held that Section 497 IPC is unconstitutional on the ground that this archaic provision violates the right to equality and destroys the dignity of women.
Unequal treatment of women invites the wrath of the Constitution, declared the Chief Justice of India for himself and Justice Khanwilkar. Batting for gender equality, they declared that adultery might not be the cause of an unhappy marriage, but its consequence.
Justice D.Y. Chandrachud held that autonomy is intrinsic to a dignified human existence. Section 497 denudes women from making choices and held that this provision is a relic of past.
Section 497, which is a part of the 158-year-old Indian Penal Code, essentially made it a crime for a man to have sexual intercourse with the wife of another man without the other man’s consent. The law gave no recourse to women a woman could not be the perpetrator or the victim of the crime of adultery.
The provision deemed her as a passive being, incapable of making choices about her body or her sexual desires, and presumed that her body belonged to her husband after marriage. Framed entirely within the framework of a man’s world of the Victorian era, it viewed the problem to be tackled between two men over the body of the woman. Though the law criminalised only men, in essence it was anti-women or it treated women as chattels, and gave legal validity to the proprietorial rights of the husband over the wife. Any man who had sexual intercourse with her, without his consent, was perceived to be violating this right of the husband. The Supreme Court has now endorsed this feminist analysis and struck down the provision.
The bench observed that the parameters of fundamental rights should include the rights of women, and that individual dignity was important in a sanctified society. The court felt that the law was against women who had no opportunity to defend themselves in a situation where they were falsely linked to a man on mere suspicion, since a woman could not be made party to the case under Section 497 and had no locus standi.
Chief Justice of India Dipak Misra, while reading out the judgment, said: “Equality is the governing principle of a system. A husband is not the master of his wife.” The CJI held that legal subordination of one sex by another is wrong and considered the views of Justice Rohinton Nariman on social progression of women in the triple talaq case while passing the judgment.
In Thursday’s case Justice Nariman observed that adultery violates Article 14 of the Constitution and cannot be treated as an offence.
Justice Chandrachud said sexuality cannot be constituted as a physical attribute and it cannot be disassociated with human psychology. He commented further that a woman loses her voice and autonomy after entering marriage and autonomy is intrinsic to a dignified human existence.
Justice Indu Malhotra held that Section 497 IPC is a clear violation of the fundamental rights granted in the Constitution, and there was no justification for the country continuing with this archaic provision.
The bench observed that adultery can only be retained as a civil fault within the matrimonial law and the parties to a marriage can invoke it as a ground for divorce. On the criminal side, mere adultery cannot be a crime unless it attracts the scope of Section 306 IPC (abetment of suicide), where the wife’s adultery becomes a cause for the husband to commit suicide. In such a case, both the wife and her partner are implicated and the partner can be charged with Section 306, read with Section 497, of the Indian Penal Code.
For Justice Chandrachud, this is one more landmark ruling, after the privacy ruling, where he had dissented from the judgment of his father, Chief Justice Y.V. Chandrachud, where he had held that privacy is a fundamental right. In this case, he dissented with the views of senior Justice Chandrachud’s views in Sowmitri Vishnu’s case in 1985, where the Supreme Court had upheld the constitutional validity of this provision.
In an extremely short-sighed manner, in 2003, the Justice V.S. Malimath Committee had recommended making the provision gender neutral. When marriage is constructed as a patriarchal institution, the woman does not have the corresponding control over her husband’s sexuality. Granting the husband additional powers to prosecute his wife for adultery would amount to adding salt to a festering wound.
In the present proceedings, the Centre had defended this provision using a deeply flawed argument that the section was essential to save the institution of marriage. “Diluting the adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds,” the Centre had declared in an affidavit filed before the court.
It failed to see that the provision does not ensure marital fidelity. It merely protected male privileges. When adultery with the consent or connivance of the husband is not an offence, the patriarchal notion of the dominion of the husband over the woman’s sexuality and bodily integrity gets reinforced all the more.
Finally, the Supreme Court has laid to rest this flawed logic, which had been used repeatedly by not just the Centre, but also the earlier rulings of the Supreme Court.
The writer is a feminist legal scholar and women’s rights lawyer based in Mumbai
