Husband is not the master of wife, says SC while striking down 158-year-old adultery law

The Supreme Court of India has struck down a 158-year-old penal provision in the Indian Penal Code that made adultery a criminal offence. The top court said that Adultery can be a civil wrong and a ground for divorce but it cannot be a criminal offence.

Sep 27, 2018 15:06 IST
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The Supreme Court of India on September 27, 2018 struck down a 158-year-old penal provision in the Indian Penal Code that made adultery a criminal offence.

The decision was taken by a five-judge bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. The bench unanimously held Section 497 of the Indian Penal Code, which deals with the offence of adultery, as unconstitutional and arbitrary.

The Judgement: Key Highlights

The top court said that Adultery can be a civil wrong and a ground for divorce but it cannot be a criminal offence.

The court said Section 497 is violative of right to equality and right to equal opportunity to women and disallows them from making their own choices.

The court pronounced four sets of concurring Judgements to declare as unconstitutional the penal provision on adultery and Section 198 of the Code of Criminal Procedure (CrPC) that deals with prosecution of offences against marriage.

Judgement of CJI Dipak Misra and Justice Khanwilkar

  Supreme Court strikes down 158-year-old IPC law on adultery

Chief Justice Dipak Misra wrote the Judgement for himself as well as on the behalf of Justice Khanwilkar.

The Chief Justice in his judgement held Section 497 IPC and Section 198 of the Code of Criminal Procedure dealing with the prosecution of offences against marriage as unconstitutional.

He said that any provision treating women with inequality is not constitutional and it’s time to say that “husband is not the master of a woman”. He also stated that legal sovereignty of one sex over other sex is wrong.

He said that adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia.

He said that adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage.

He said equality is the governing parameter of the Constitution and Section 497 of the IPC is manifestly arbitrary in the way it deals with women.

However, the CJI and Justice Khanwilkar said that while adultery cannot be a crime, if someone commits suicide because of his or her partner’s adulterous relation and evidence is produced, it could be treated as an abetment to suicide under Section 306 of the IPC.

Judgement of Justice Indu Malhotra

Justice Malhotra, who was the only woman judge on the bench, said Section 497 is a clear violation of fundamental rights granted in the Constitution and there is no justification for the continuation of the provision.

Judgement of RF Nariman

Justice Nariman termed Section 497 an archaic provision which had lost its rationale and concurred with the CJI and Justice Khanwilkar, saying that the penal provision is violative of the rights to equality and equal opportunity to women.

He said that the ancient notion of man being the perpetrator and the woman being a victim of adultery no longer holds good and added that the section treats women as chattel and has chauvinistic undertones.

Judgement of Justice D Y Chandrachud

Justice Chandrachud in his separate but concurring opinion said Section 497 destroys and deprives women of their dignity and offends their sexual freedom.

 He said autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices.

He also added that the law in adultery is a codified rule of patriarchy and respect for sexual autonomy must be emphasised.

He concluded his Judgement by saying that marriage does not preserve ceiling of autonomy and the IPC section perpetrates the subordinate nature of woman in a marriage.

Overall, the five-judge bench held that adultery can be treated as civil wrong for dissolution of marriage but also as a criminal offence.

About Section 497 of IPC

The section says that "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."

However, the section exempts from criminal prosecution a man who has engaged in sexual intercourse with a married woman if the same transpires with the consent or connivance of the said married woman’s husband.

The offence of adultery entailed a maximum punishment of five years or fine or both.

Section 198(2) of the Code of Criminal Procedure

The section allows the initiation of criminal proceedings for Adultery only at the instance of the husband of the adulteress, but the wife of the man party to the act of adultery cannot institute a complaint.

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