158 years on, adultery is no longer a criminal affair
After Decriminalising Homosexuality, Another Verdict That Takes Law Out Of Bedrooms.
But It Can Be A Ground For Divorce: SC
New Delhi:The Supreme Court on Thursday struck down as unconstitutional the 158-year-old Section 497 of IPC that punished a married man for adultery if he had sexual relations with a married woman “without the consent or connivance of her husband”, but said adultery could continue to be a ground for divorce.
While saying that adultery could continue to be a ground aggrieved spouses to seek divorce, the court said if one of the spouses committed suicide because of the adulterous nature of her/his partner, then the culprit could be proceeded against for the criminal offence of abetting suicide.The SC tested Section 497 on the touchstone of constitutional provisions dealing with right to equality and guarantees against arbitrariness and discrimination, with Justices Chandrachud and Malhotra using privacy, individual’s autonomy and personal choice as yardsticks of legality.The decision rejected a conception of women as actors with no agency of their own—mere “chattel”. Thursday’s decision puts India on a par with many European countries, China, Japan, Australia and Brazil where adultery is not a criminal offence.CJI Misra, writing the judgment for himself and Justice Khanwilkar, said Section 497 violated right to equality as it punished only the married man while exonerating the ‘partner in crime’, the married woman, who could not be punished for being the abettor.The section also treated the woman, with whom the married man had sexual intercourse, as a chattel of her husband as it was not an offence of adultery if the latter consented or connived for his wife’s adulterous relationship, the CJI said. Refusing to buy the Centre’s argument to uphold validity of the provision on the ground that it was to protect the sanctity of marriage, the CJI said the section did not punish married men for adultery if they had sexual relationship outside the marriage with unmarried women, divorcees or widows.
Chandrachud overrules ex-CJI dad again
Justice D Y Chandrachud on Thursday became the only SC judge to have overruled his father, ex-CJI Y V Chandrachud, not once but twice in a year. When Justice Chandrachud, in his separate judgment that concurred with others on a five-judge bench, struck down Section 497 and overruled the 1985 verdict in Sowmithri Vishnu case, he overruled the father for the second time.
Clause was only a tool in legal battles
Criminal lawyers were hard pressed to recall a single conviction of a man for adultery under section 497 IPC, a clause now decriminalised by the Supreme Court. NCRB doesn’t maintain data on cases or convictions, primarily because the number of offences is negligible. It’s usually warring couples trying to get an upper hand in a legal battle who used this section, said lawyers.
There can’t be husband’s monarchy over wife: CJIMoreover, the provision specifying that only the husband of the married woman could be the aggrieved person to file complaint of adultery against the adulterous married man made the SC say, “The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with life as he likes which is extremely excessive and disproportionate.”“That women are treated as subordinate to men inasmuch as it lays down that there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted (in 1860),” the CJI said.Hoping to bring about a change in the societal mindset, CJI Misra said, “We are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband’s monarchy over wife. That apart, there cannot be a community exposition of masculine dominance.”Justice Nariman rescinded Section 497 because it said it was not adultery if the married woman’s husband approved her adulterous relationship with another married man. “This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the ‘licensor’, namely the husband, no offence is committed,” he said.“This archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today’s day utterly irrational. On this basis alone, the law deserves to be struck down,” he added.Justice Chandrachud took a broader view and said, “This court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalisation of consensual relationships is denial of this right. Section 497 denudes a married woman of her agency and identity, employing force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality.” He added that marriage could not force an individual to cede her sexual autonomy to others.
The Supreme Court’s judgement which on Thursday scrapped the penal provision on adultery received kudos from leading women advocates who dubbed it as a “strong” and “progressive” decision on gender equality.
Senior advocate Rebecca John and lawyers Aishwarya Bhati and Menaka Guruswamy, termed as correct the apex court’s observation that the adultery law dented the individuality of women and treated them as “chattel of husbands”.
While John said Section 497 (adultery) of the Indian Penal Code should have been struck down 50 years ago Bhati opined that the verdict will go a long way in ensuring that women’s rights are “strongly and robustly embedded” in the system and cannot be taken away.
Guruswamy termed the verdict as a good decision on gender equality and said that “it makes perfect sense as clearly the Supreme Court is saying that men and women within marriage are equal”.
John said: “It should never have been a part of modern India’s penal code because it was an extremely archaic patriarchal law. Too late but a welcome move.”
Bhati said the law was “one of those colonial baggages that we had to let go of as it was from an era where women were treated as chattel of men and wife was the property of the husband”
The apex court’s five-judge Constitution bench was unanimous in striking down Section 497 of the Indian Penal Code dealing with the offence of adultery and holding it as manifestly arbitrary, archaic law which is violative of the rights to equality and equal opportunity to women.