1. INTRODUCTION
On 27th September 2018 the Apex Court of India unanimously struck down the 158-year old penal provision criminalizing adultery as unconstitutional. Section 497 of Indian Penal Code criminalized a man having consensual sexual intercourse with a married woman without the consent of her husband. The Supreme Court in the case of Joseph Shine v. Union of India [1] held that this particular provision is unconstitutional as it denies women the right to equality and right to life, which includes right to live with dignity. However, the Court clarified that adultery will still be a ground for divorce. It was also stated by the Court that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the IPC. The judgment further struck down Section 198 (2) of Code of Criminal Procedure which was supplementary of Section 497. [2]
2. BACKGROUND OF SECTION 497
Before the Indian Penal Code was enacted adultery was not an offence in India either for men or women. Further, it was also not included in the first draft of the Penal Code. However, the Second Law Commission added to it. The Law Commission noted that the then prevalent social infrastructure and the secondary and economically dependent position of women were not conducive to punish adulterous men. Further, the authors noted that a wife was socially conditioned to accept her husband’s adulterous relationship as polygamy was an everyday affair. The Law Commission thereby incorporated adultery as an offence in the Penal Code [Section 497] punishing only the adulterous men, leaving women, who, in their opinion, were already living in humiliated and oppressive conditions within the family. [3] The essential ingredients of the offence of Adultery under Section 497 were as follows:
- A man needs to have sexual intercourse with a married woman
- The woman must be married.
- The man should have known that the woman is the wife of another man.
- Sexual Intercourse should not constitute to rape.
- Consent of the husband has not been obtained before sexual intercourse.
Further this Provision was supplemented with Section 198 (2) of CrPC which stated that no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Penal Code. Further, in the case of absence of the husband, any other person who had the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on husband’s behalf.
3. JUDICIAL HISTORY OF SECTION 497
Section 497 for the first time was challenged in the case of Yusuf Aziz vs. State of Bombay [4] wherein it was contended that the law was discriminatory in nature. It was argued that the adultery law discriminated against men by not making women equally culpable in an adulterous relationship. However, the Court held that Section 497 is constitutionally valid. It was stated by the Court that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) of the Constitution. In 1985 again a case Sowmithri Vishnu v. Union of India [5] was filed before the Apex Court to make the law gender neutral. The Court, however, in this case, held that women need not be included as an aggrieved party in the name of making the law gender neutral. The Supreme Court further stated that the men shouldn't be allowed to prosecute their wives and vice-versa so as to safeguard the virtue of marriage. The judgment thus held that adultery was a crime committed by a man against another man. Further the Supreme Court in the case of V Revathi v. Union of India [6] held that not including women in the prosecution of adultery cases promoted social good. It is because it offered the couple a chance to make up and keep the sanctity of marriage intact. However, the Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on Criminal Law Reforms of 2003 proposed amendment of Section 497 by making it gender neutral.[7] Finally in the case of Joseph Shine v. Union of India[8], the Supreme Court struck down Section 497 of IPC which was anachronistic in nature and revolved around the Victorian ideals of marriage sanctity.
4. WAY AHEAD
The Joseph Shine judgment upholds sexual agency, autonomy and equality of spouses within marriage, on an equal footing as an inviolable aspect of the rights to liberty and privacy. The judgment affirms the right to privacy in the context of the sexual agency of women within marriage and it also clarifies that privacy cannot be a shield when it comes to protecting women from domestic violence. The Court also observed that Section 497 was merely a legal means to enforce patriarchal ownership over the wife’s body and sexuality. As a result Section 497 is not sanctioned by the constitutional mandate to protect women or the preservation of the institution of marriage and thereby needs to be struck down. [9] Apart from that this the judgment also lays down the way for criminalization of marital rape. With the Supreme Court adopting an outlook of transformative constitutionalism against draconian and oppressive notions, one can now expect for the criminalization of marital rape, which is long overdue. [10]
Authors: - Raj Krishna and Teresa Dhar, Chanakya National Law University, Patna
Contact: - rajkrishnacnlu@gmail.com; dharteresa120@gmail.com
[1] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017.
[2] Mehal Jain, ‘Husband Is Not The Master Of Wife’, SC Strikes Down 158 Year Old Adultery Law Under Section 497 IPC, Live Law (Nov. 12, 2018, 2:50 PM), https://www.livelaw.in/husband-is-not-the-master-of-wife-sc-strikes-down-158-year-old-adultery-law-under-section-497-ipc/
[3] PSA Pillai, Criminal Law 550 (KI Vibhute 2014).
[4] Yusuf Aziz v. State of Bombay, 1954 SCR 930.
[5] Sowmithri Vishnu v. Union of India, 1985 SCR Supl. (1) 741.
[6] V Revathi v. Union of India, 1988 SCR (3) 73.
[7] Prabhash K. Dutta, Section 497: 3 past Supreme Court judgments on adultery law, India Today (Nov. 16, 2018, 4:30 PM), https://www.indiatoday.in/india/story/adultery-law-section-497-3-past-supreme-court-judgments-
1349993-2018-09-27
[8] Joseph Shine v. Union of India, Writ Petition (Criminal) No. 194 of 2017.
[9] Madhu Mehra, Supreme Court verdict on adultery opens door for fuller understanding of women’s equality, Hindustan Times (Nov. 10, 2018, 1:30 p.m.), https://www.hindustantimes.com/opinion/supreme-court-verdict-on-adultery-opens-door-for-fuller-understanding-of-women-s-equality/story-9NpphXg1jshIj0sfKDcoFI.html[10] Kali Srikari Kancherla & Shreyasi Tripathi, Indian Supreme Court Decriminalises Adultery: A Step Closer to Criminalising Marital Rape, Oxford Human Rights Hub (Nov. 14, 2018, 6:00 PM), http://ohrh.law.ox.ac.uk/indian-supreme-court-decriminalizes-adultery-a-step-closer-to-criminalising-marital-rape/
