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Adultery no more criminal offense in India

  • Category
    Polity & Governance
  • Published
    16th Oct, 2018

The Supreme Court in its recent verdict scrapped the pre-independence provision of adultery law under section 497 of Indian Penal Code (IPC).

Issue

CONTEXT:

  • The Supreme Court in its recent verdict scrapped the pre-independence provision of adultery law under section 497 of Indian Penal Code (IPC).
  • The apex court termed the law arbitrary and against the constitutional ideals of liberty, equality and freedom.
  • The judgment comes on a petition filed by a man from Kerala Joseph Shine, represented by advocates seeking declaration of Section 497 as unconstitutional.

BACKGROUND:

  • Adultery law (Section 497) read along with CrPC 198(2) had given the husband the right to get his wife's lover prosecuted. If found guilty, the adulterer faces up to five years behind bars. The married woman was barred from getting her husband prosecuted for adultery under the law. It was only the ‘outsider’ the lover of the married woman who was supposed to be prosecuted. Therefore, it had become a tool for controlling the sexuality of woman by levelling her to a commodity owned and controlled by husband.

Abdul Aziz vs. State of Bombay (1951):

  • Soon after independence in 1951, the adultery law under section 497 of IPC was challenged in Abdul Aziz vs. State of Bombay. The petitioner contended that the law violated the right of equality guaranteed under Article 14 and 15 of the constitution.

The dominant argument in the court was that the law discriminated the men by not making women equally culpable in an adulterous relationship. However SC upheld the validity of the section 497 by pointing out that neither a man nor a woman can prosecute their disloyal spouses. It is only the ‘outsider’ to the relationship who can be prosecuted and that too by the aggrieved husband alone.

A woman who indulges in extramarital relationship is exempted from the punishment and provided protection under article 15(3) of the constitution. The constitution bench negate the argument that the section 497 is violating the right to equality as enshrined in Article 14 and 15 of the constitution. The bench further said that constitution provides special provisions with regard to protection of women and children. Hence, Article 14 and Article 15 of the Indian Constitution read together validate section 497 of the IPC. The crux of the Abdul Aziz vs. The State of Bombay Supreme court judgement was that the married woman (prey) is the victim and the man (outsider) is “the author of the crime.

Sowmithri Vishnu vs. Union of India (1985):

  • The next important judgment regarding adultery law under Section 497 came in Sowmithri Vishnu versus Union of India case of 1985. The Centre has cited this judgment in its 2018-affidavit to back Section 497 of the IPC.In Sowmithri Vishnu case, the Supreme Court held that women need not be included as an aggrieved party in the name of making the law even handed. It also explained as to why women should not be involved in prosecution in the cases of adultery.
  • The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offence of adultery as a crime committed by a man against another man.The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law. It held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. The ambiguity related to adultery law remained unresolved.

Revathy vs. Union of India (1988):

  • The Supreme Court held that not including women in prosecution of adultery cases promoted "social good". It offered the couple a chance to "make up" and keep the sanctity of marriage intact.The Supreme Court observed that adultery law was a "shield rather than a sword". The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men.

Besides the three Supreme Court judgments, there were two more important legal views in connection with adultery law.

  • The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 recommended amendment to the adultery law. Both argued to make Section 497 of the IPC gender neutral.

ABOUT:

The 2018 Judgement:

The Supreme Court verdict has thrown light on the many issues related to women while scrapping the pre-independence provision of adultery law from the Indian Penal Code.

The crux of the judgement is as follows:

  • Criminalising adultery is “absolutely, manifestly arbitrary and unconstitutional”. It would tantamount to punishing the people, who lived in an unhappy marriage. Attaching criminality to adultery is a retrograde step. Adultery can be a ground for a civil remedy i.e., dissolution of marriage. Justice Rohinton F. Nariman said that Section 497 was based on a chauvinistic notion.The provision, which is over 150 years old, is a relic of the past, brought in much before the Constitution introduced the fundamental rights of equality, liberty and dignity. Women are treated as “chattel” of the husband.
  • He championed the sexual autonomy of women within marriage. Partners in marriage should have respect for each other's sexual autonomy.Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice. Society imposes impossible virtues on a woman. It raises her to a pedestal, confines her to spaces. Treats her as objects capable of being punished and says she should be pure, but has no qualms to rape her, assault her, commit female foeticide, discriminate against her within a home etc.
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