Adultery no more criminal offense in India

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.

The Supreme Court judgement will be a landmark judgement in providing  women equal footing in social contracts like marriage. The adultery law has for decades became a means to exploit a married woman and inflict many atrocities. It was a means to question and control the sexuality of the woman. It has played an important role in enhancing and consolidating the following notions of exploitations of women:

• Regressive Society:

Laws which were made more than 150 years ago under an alien rule if still prevalent, continue the legacy of colonial structure of the society.  Women in independent India have been protected by special provisions in constitution (article 15(3)); provided right to vote, right to participate in the economic development of the country. All that would be meaningless if she would be subject to the will of their male partners under the fear of laws like adultery.

• Consolidating patriarchy:

Section 497 of IPC emanated in such social structure and times in which patriarchy and control over women was rampant. It was a colonial law to control and subjugate women even in social contracts. All the communities in India at that time whether British, Hindu, Muslim etc. regarded sexuality of women as something to be controlled and owned by the male no matter whether inside or outside the marriage. Practices such as kanyadaan, virginity and sexual chastity are created to reinforce the belief that there is a lack of ownership of a woman’s own body as these are by-products of how patriarchy operates for all those who are concerned. It was part of an era in which women were deprived of her political and economic freedoms. She was at the lower ladder of the social hierarchy transcending the caste, class and other barriers.

• Means of Exploitation:

Although, the adultery law was intended to protect the sanctity of marriage and consolidate patriarchal notions of society, it also became the means of domestic violence. The question mark over the sexuality of women often led men to use acts of physical and mental violence whenever the women transgressed the so called male notions of obedient wife.

• Treated breach of civil contract as criminal offense:

The adultery law treated breach of civil contract as criminal offense. It reinforced the notion that the societal norms are far greater good than the personal or individual freedom. The act of adultery was seen not as the product of unhappy marriage but a cause of unhappy marriage. Persons under adultery law were convicted (male by the court) and married woman (by society) for their personal acts of freedom of choice. It was assumed that the choices, likes and dislikes of women after marriage were to be subsumed and subordinated to that of her husband.

• Deprives married women of her rights:

The cumulative effect of patriarchal notions of which adultery was an indispensible part impinges the rights of women in almost all her public and private spheres. Adultery law had given a full hand to the male partners to control not only the sexuality of women but also empowered him to determine the counters of social and economic sphere of women. It is not surprising that India is one of the worst performers in terms of women participation in labour force as per the International Labour Organisation. The economic and financial dependence as well as the vulnerabilities of dependence life all emanates and have their roots in the internalized patriarchal customs  and legal institutions of which adultery was one small bolt.

Contextualising the verdict as progressive realisation of rights:

The Supreme Court verdict on adultery law is in sync with its other recent judgements such as Right to Privacy for the progressive realisation of rights.

• In Puttaswamyvs Union of India, 2017 SC underlined that Right to Privacy is inherent in the right to life, equality and fundamental freedoms. Right to Privacy includes right to have intimate relations of one’s choice and right to sexual orientation and identity. The continuation of adultery law as it was would have been in contravention of what Sc has transpired in Right to Privacy judgement.

In NavtejJohar verdict of 2018 SC rendered the section 377 unconstitutional to the extent that it criminalises consensual relationship of any kind between the adults. The Supreme Court highlighted that the section 377 consigned a group of citizens to the margins and was destructive of their identities.  The Adultery law also discriminated women, one of the most marginalised and oppressed groups of the society. So the recent verdict is in tandem with the other judgements of the Supreme Court.

Contextualising the verdict as a means for social good:

• The verdict will provide a space for women to decide on her body if not completely but at least a beginning in that direction. There are apprehensions that the verdict may render the whole institution of marriage disabled. It may lead to social chaos. However such arguments cannot sustain the adultery law at the cost of individual rights of the half of the population of this country that are women. Moreover, marriage is a social institution based on consent and adultery is not the cause but the outcome of the unhappy marriage. The recourse to divorce should not be a norm but a principle and logical way for a woman to escape from the atrocities of men also a means for a male to relieve herself from stressful marriage life.

Practice Question

Patriarchy is not only a social construct based on customary laws but has subtle legal and institutional backing in India. Elaborate with respect to recent judgement by Supreme Court on Section 497 of Indian Penal Code (IPC).

Approach:

• Introduce briefly about patriarchy (40-50 words)
• Illustrate with examples how patriarchy is reinforced by legal and institutional mechanisms (60-70 words)
• Highlight the main arguments of the recent court judgements on section 497 OF IPC.(70-80 words
• Conclude briefly (40-50 words)