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DECRIMINALISING ADULTERY VIS-A-VIS THE JUDGMENT DELIVERED IN 2018

By- Parvani Marwah


"Woman not a chattel of man”- Apex Court decriminalizes Adultery.

Section 497 Indian Penal Code- 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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Adultery was read as a severe and punishable offence under the Indian Penal Code (IPC), before this judgment. It was seen as a shameful act under which the wife of a man maintains sexual relationship(s) outside of her marriage, i.e. other than her husband. But this was just half of the interpretation of what Section 497 of IPC read. It also included a controversial stand, by allowing or legalizing wife’s extra marital relationships only if “permitted” by her husband. This brought in the whole debate about whether adultery was a more terrible sin or was it treating wife as husband’s property.


The Hon’ble Apex Court of the country, through a unanimous decision[1] of a five judge bench declared the act of adultery, not to be a crime anymore. It decriminalized Section 497 of the Indian Penal Code, 1860, on 27th September, 2018.


The strong stand taken by the bench was to support gender justice in India and to uphold the dignity of the females in our society. The multi fold reasoning of this old law, being arbitrary links to, firstly woman being compared to be the “property” of the man. Secondly that only the third party (perpetrator man) is prosecuted for the same offence which also includes the woman as the other party. This makes this colonial-era law unconstitutional, i.e. arbitrary to Article 14 (Right to Equality), Article 15(1) (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and Article 21(Right to Life and personal liberty) of the Constitution of India. The decision also highlighted the view that this law deprived the woman per se, of her sexual autonomy and dignity. The judges have strongly voiced their opinion about the aspect and importance of “consent” in a marriage.


Plain reading of Section 497 of IPC stated that a woman, by marriage “consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity”- such a notion has no place in the constitutional order (this means according to or in respect with the values and rights guaranteed by virtue of the Constitution of India. Since Constitution is the supreme law of the country, there can be no law above it and more over all the laws made shall be in accordance with the Constitution of India). The bench in relation to Section 497 of IPC also held unconstitutional Section 198 of the Code of Criminal Procedure (CrPC), which provides for prosecution of offences against marriage.


Such decision was also upheld, to strengthen the pillars of gender justice specially with reference to women because as per another interpretation of this Section, extra marital relationship with an unmarried woman or a widow, doesn’t come within the purview of law on adultery, since the subject matter is a married woman. Also it does not give any right or power to the wife if her husband committed adultery because as per the definition, there are only two parties involved in this act and husband is none of them. So when the adulterous act of husband was a subject matter of divorce, i.e. Civil law, then the Court felt that law shall be same for the wife and even the third party man who establishes relation with the married woman shall be excused from punishment, since he became the only sufferer in the entire scenario. This in a whole was discriminatory and more over sounded illogical.


Highlights from the judgment:

The entire bench that heard the matter had the same notion on the issue. They expressed in different words but with the same thought process. The important quotes from the judgment were as follows:


  1. Former Chief Justice of India, Deepak Misra and Justice Khanwilkar said that, “it is demonstrable that women are treated as subordinate to men in as much as it lays down that when there is connivance or consent of the man, there is no offence. This treats the women as a chattel, property of man and totally subservient to the will of the master”.

  2. Justice R F Nariman wrote, “Under the provision of adultery, what was punished was not the adultery as the offence per se but the proprietary interest of a married man in his wife”. Therefore such thought process needs to be curtailed at the right moment.

  3. Justice D Y Chandrachud wrote “The previous decision on this Section 497 IPC fails to guarantee equality as a real thing, to guarantee life and personal liberty as an essential recognition of dignity, autonomy and privacy and above all gender equality as a cornerstone of a truly equal society”.

  4. Justice Indu Malhotra said “the history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. This historical background, in which Section 497 was framed, is no longer relevant in contemporary society. Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals. This situation is not true 155 years after the provision was framed”.

Conclusion:

To establish justice, equality and fairness in the society, Supreme Court delivered such a judgment. In my opinion, the Court beautifully analyzed Section 497 of IPC by breaking it down and understood that treating any person as a property of someone is the biggest sin and entirely against the fundamental right of life and personal liberty which our Constitution guarantees, which clearly ensures human dignity in all aspects. So if that practice needed to be stopped with immediate effect and by virtue of this judgment, one step was already taken in that direction.


On the other hand reading the definition of adultery, Court felt that no doubt it is cheating in a matrimonial relationship but that cannot make it a crime rather just a ground for divorce because implementing the freedom of choice along with a matrimonial union, any act happening in married life of a couple, becomes entirely their “personal matter” and they are to decide upon that.


A lot of disparities, be it gender specific or moral, revolving around this Section, were put to rest by simply reading down the provision from the Penal Law of India.


Therefore, by way of this judgment all the matters of debate were resolved and put to rest, that too in accordance with the requirements and advancements of today’s society.


Reference- [1] Joseph Shine v. Union of India, 2018


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