Author: Naman Saroha, Indian Institute of Management, Rohtak
Citations: (2019) 3 SCC 39, AIR 2018 SC 4898
Judges – Dipak Mishra, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra
Abstract
This case comment explores the evolution of adultery laws in India, culminating in the Supreme Court’s landmark judgment that struck down Section 497 of the Indian Penal Code as unconstitutional. Historically, adultery was considered a criminal offense rooted in patriarchal notions that treated women as the property of their husbands. The provision penalized men for engaging in extramarital relationships with married women, while exempting women from prosecution, reinforcing gender inequality. Over time, legal and societal perspectives shifted, recognizing individual autonomy and equality within marriage. In this judgment, the Supreme Court held that Section 497 violated Articles 14, 15, and 21 of the Constitution, as it was discriminatory, undermined women’s dignity, and failed to pass the test of constitutionality. The Court reaffirmed that while adultery remains a civil wrong and a valid ground for divorce, it does not constitute a public offense warranting criminal punishment. This decision marks a progressive transformation in India’s legal framework, ensuring that laws reflect contemporary constitutional values of liberty, dignity, and gender equality.
What is Section 497 of IPC?
Section 497 of the IPC criminalized adultery before 2018. It was defined as having sexual intercourse with another man’s wife without his consent. In the IPC before being amended in 2018, it was defined as “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 to the offence of rape, is guilty of the offence of adultery.” The punishment for such crime was imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife was not punishable.
Section 497 of the Indian Penal Code (IPC), which criminalized adultery, has roots in the colonial era, within a 150-year-old statute enacted by the British in 1860. This law reflected Victorian-era British moral standards and patriarchal values.
Initially, Section 497 exclusively penalized a man who engaged in sexual relations with a married woman without her husband’s consent, effectively treating the woman as a victim rather than a perpetrator. This gender disparity stemmed from the belief that women were the property of their husbands, echoing the social dominance prevalent when the provision was drafted. The law did not allow women to prosecute their adulterous husbands or the women with whom their husbands had sexual relations. Adultery was viewed as a crime against the husband, akin to stealing his property, thus granting him the right to file charges against the male perpetrator. If a husband permitted the affair, the adulterer could not be prosecuted.
The law was seen as controversial because it treated women as the property of men and placed the wife under their control. It was also viewed as reinforcing the patriarchal nature of society and traditional norms of marriage. Furthermore, the law only focused on the man involved in the adulterous act, even though women were active participants. This gender bias meant that women had no legal responsibility for the act of adultery, and there was no provision to punish a husband who committed adultery.
Connivance was also an essential element in determining the liability under the purview of adultery. It was stated in the act that the man would not be liable for the offense of adultery if the act were done with the consent or connivance of the husband. This implies that if a husband knowingly allowed or facilitated his wife’s affair, he could not then prosecute the other man for adultery. This element highlights the idea that the offense was viewed as a violation of the husband’s marital rights, which he could waive through his consent. According to Section 497, if a man engaged in sexual intercourse with the wife of another man, without the consent or connivance of that man, such conduct would constitute adultery. However, the element of “connivance” implies that if the husband had knowledge of the adulterous relationship and passively or actively facilitated it, he would forfeit his right to prosecute the other man for adultery. Without sufficient explanation, a prosecutorial delay may be construed as evidence of connivance, negating the adulterous charge under Section 497, though it may give rise to other charges.
Facts of the case
Joseph Shine, a hotelier of Indian origin and a non-resident of Kerala residing in Italy, filed the case in public interest in the Supreme Court of India. Shine was motivated to file the petition after a close friend in Kerala committed suicide after a female co-worker falsely accused him of rape. The petition argued that Section 497 and Section 198(2) were discriminatory on the basis of gender and violated the rights guaranteed to all Indian citizens under Articles 14, 15, and 21 of the Constitution. The case was directly brought before the Supreme Court of India as a Public Interest Litigation (PIL), without prior rulings from subordinate courts.
Earlier Judgments related to Adultery
There have been certain judgments in the past that discussed the constitutionality of the adultery law in India but only suggested amendments in the legislature instead of instituting any real change in the legal sphere. In Yusuf Abdul Aziz v. State of Bombay (1954), the Supreme Court addressed challenges to Section 497 IPC under Articles 14 and 15 of the Constitution. The appellant, charged with adultery, argued the law was discriminatory because it only penalized men. The Court upheld Section 497’s validity, invoking Article 15(3), which permits special provisions for women. The Court reasoned that Section 497 was a special provision aimed at protecting women and thus shielded from accusations of gender discrimination under Article 15(1). The court explained that Article 14 is general and must be read with other provisions that outline the scope of fundamental rights. In Sowmithri Vishnu v. Union of India (1985), the Supreme Court (SC) upheld the constitutionality of Section 497 but expressed concerns regarding its gender-specific nature. The court suggested that the legislature consider amending the provision to make it gender-neutral. In V. Revathi v. Union of India (1988), the Supreme Court upheld Section 497 IPC, stating it didn’t violate the Constitution by only penalizing men for adultery. The Court viewed the law as a “shield,” protecting marriages from outsiders, rather than a “sword” for spouses to use against each other. They emphasized that it disabled both the wife and husband from punishing each other for adultery, but it only punished an outsider trying to destroy the sanctity of marriage. The Court reasoned it was a special provision for women, promoting social good within marriage, and not discriminatory.
Issues related to the case
Whether Section 497 of IPC violated the fundamental right of equality under article 14 of Indian Constitution by being arbitrary and discriminatory?
Whether section 497 IPC infringed upon the right of the privacy as a fundamental right under article 21 of the Constitution by invading the private relationships of individuals?
Whether adultery laws should be made gender-neutral?
Whether Section 198(2) of the Code of Criminal Procedure (CrPC) was unconstitutional?
Whether Section 497 treated a woman as a property of a man?
Judgment
The Supreme Court unanimously struck down Section 497 of the IPC and Section 198(2) of the CrPC, declaring them unconstitutional as they violated fundamental rights. This decision has revoked a lot of prior judgments that criminalized adultery.
The Court held that Section 497 was discriminatory; CJI Dipak Misra stated that it treated women as the property of their husbands. It did not recognize women as independent individuals and deprived them of their agency. The provision also placed the blame solely on men while absolving women of any criminal liability, thereby failing the test of equality. The Court ruled that the law discriminated based on gender, reinforcing patriarchal notions that a married woman was under the authority of her husband. Such a provision was inconsistent with constitutional morality, guaranteeing equality between men and women.
The Court emphasized that the right to privacy, dignity, and sexual autonomy are integral to the right to life. Marriage does not strip an individual of these fundamental rights. Justice D.Y. Chandrachud highlighted that the state must not interfere in personal choices, including consensual relationships unless they cause public harm. Citing K.S. Puttaswamy v. Union of India (2017), the Court reiterated that personal choices, including intimate relationships, fall within the right to privacy. Criminalizing adultery was an unjustified intrusion into the private sphere of individuals.
The provision also treated women as passive actors in marital relationships and implied that they lacked independent decision-making power regarding their sexuality. The Court observed that such a provision reinforced outdated notions of patriarchy and denied women their right to autonomy.
Furthermore, the Court determined that Section 497 did not meet the test of constitutionality, as it conflicted with the constitutional guarantees of liberty and dignity. While adultery was no longer considered a criminal offense, it remained a valid ground for divorce. The Court’s historic verdict aimed to uphold individual dignity, acknowledging that civil remedies like divorce were sufficient for addressing grievances rather than imposing penal sanctions. Ultimately, the Supreme Court held that Section 497 was unconstitutional, striking it down as a penal provision that treated women as the property of their husbands.
After the judgment, Adultery can be grounds for divorce, but it is no longer a criminal offence attracting up to 5 years of jail. Though adultery per se is no longer a crime, if any aggrieved spouse commits suicide because of the partner’s adultery, it could be treated as abetment to suicide.
In Conclusion, the Supreme Court overruled previous judgments that upheld the criminalization of adultery. It held that marriage is a partnership between equals, and any law treating women as subservient to men is unconstitutional. The judgment marked a progressive shift in India’s legal landscape by affirming the principles of gender equality, privacy, and personal liberty. Adultery is no longer a criminal offense but remains a valid ground for divorce under matrimonial laws.
FAQS
1. What was Section 497 of the Indian Penal Code (IPC)?
Section 497 of the IPC criminalized adultery by punishing a man who engaged in sexual relations with a married woman without the consent of her husband. The woman, however, was not punishable under this provision, reinforcing a gender-biased perspective on marital relationships.
2. Why did the Supreme Court strike down Section 497?
The Supreme Court held that Section 497 violated Articles 14 (equality before the law), 15 (prohibition of discrimination), and 21 (protection of life and personal liberty) of the Indian Constitution. The Court ruled that the provision was unconstitutional because it treated women as the property of their husbands and restricted their autonomy, dignity, and privacy.
3. Does this judgment mean that adultery is now legal in India?
Adultery is no longer a criminal offense in India, meaning that individuals cannot be prosecuted or imprisoned for engaging in an extramarital affair. However, adultery remains a civil wrong and can be used as a valid ground for divorce.
4. What was the Court’s reasoning behind decriminalizing adultery?
The Supreme Court emphasized that criminal law should only be applied to offenses that harm society as a whole. Since adultery is a personal matter between individuals in a marriage, it does not warrant state intervention through criminal punishment. The Court also recognized that marriage is based on mutual consent and equality, and laws should not reinforce outdated patriarchal notions.
5. How does this judgment affect marital relationships in India?
While the judgment upholds personal liberty and gender equality, it does not encourage adultery. The ruling ensures that individuals are not punished criminally for personal choices, but at the same time, adultery continues to be a valid reason for seeking divorce in matrimonial disputes.
6. Was there any opposition to the judgment?
Yes, critics argued that decriminalizing adultery could lead to a rise in infidelity and weaken the institution of marriage. Some also contended that the decision should have been left to the legislature rather than the judiciary. However, the Supreme Court clarified that morality and criminality are separate, and personal choices should not be regulated through penal provisions.
7. What impact does this ruling have on gender equality?
The ruling is a significant step toward gender equality, as it removes a law that treated women as subordinate to men in a marriage. By striking down Section 497, the Supreme Court affirmed that both men and women have equal rights and autonomy in personal relationships.
8. What international legal principles influenced this decision?
The judgment referred to global legal perspectives on personal liberty and gender equality. The Court cited cases such as K.S. Puttaswamy v. Union of India (2017), which recognized the right to privacy, and Navtej Singh Johar v. Union of India (2018), which decriminalized homosexuality, to highlight the importance of individual autonomy in personal matters.
9. Can a person be punished for adultery in any circumstances after this ruling?
No criminal charges can be filed for adultery after this judgment. However, in military law, adultery can still be a punishable offense under the Army Act, Navy Act, and Air Force Act if it affects discipline and morale. Additionally, adultery can still have legal consequences in civil proceedings, such as divorce and child custody cases.
10. What does this ruling mean for future legal reforms in India?
The judgment reflects a progressive approach in Indian jurisprudence, emphasizing personal liberty and equality. It sets a precedent for revisiting outdated laws and ensuring that legal provisions align with constitutional principles of dignity, privacy, and gender justice.
References
https://www.drishtijudiciary.com/editorial/reformation-of-adultery-law
https://vaquill.com/laws/ipc-497-498/
https://blog.ipleaders.in/supreme-court-struck-adultery-law-section-497-ipc-justified/
https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-1982-crpc/
https://www.lawcian.com/post/section-497-of-ipc-decriminalisation-of-adultery
https://www.drishtijudiciary.com/blog/adultery-and-the-law-understanding-legal-perspectives
https://indiankanoon.org/doc/42184625/
https://insaaf99.com/blog/section-497-ipc/
https://thebetterindia.com/160490/adultery-crime-woman-supreme-court-india-news/
