Introduction
Male chauvinism and patriarchy are the notions in which adultery finds its roots. Adultery is an offence which makes any male accountable if he has sexual relations with a married woman. However, if the spouse of the woman with whom a man is involved in a sexual relation gives his consent, the act is no longer considered an offence. The sad truth is that a woman whose husband is committing the act of adultery with another woman has no right. In the historic days, adultery whether done by a man or woman was regarded as a sinful act.
The Indian law has never treated women as a culprit in cases of adultery. On the contrary, she is treated as a victim who has been seduced by a man other than her husband who made her do such acts. This is however, violative of the constitutional principle which ensures every citizen non-discrimination, equality, right to live a dignified life, among others.
Adultery as an offence has been struck down in almost sixty nations which includes South Korea, Uganda, Japan, South Africa, etc. on the grounds of gender discrimination and violative of right to privacy.
Lord Macaulay, who is often regarded as the creator of the Penal Code, has also objected to the presence of adultery as an offense in the Penal Code. In his opinion, it should be considered to be a civil wrong instead.
The law always evolves with the changing needs of the society and there have been recent judgments which have increased the ambit of fundamental rights with the ever changing societal needs and thereby has increased individual liberty as well. Joseph Shine vs. Union of India is one such judgment which has created history as it has struck down a law which was more than a century old because this law in present times has lost its relevance as the society has witnessed numerous changes in terms of moral as well as the social conditions.
The instant case has turned out to be a landmark judgment which has decriminalized adultery in India. A constitution bench of five judges was set up for hearing the petition which comprised of Chief Justice Dipak Mishra, Justice A. Khanwilkar, Justice R. F. Nariman, Justice D.Y. Chandrachud, Justice Indu Malhotra. The judgment was passed on 27th September 2018.
Facts and Issues Raised
Joseph Shine had first filed a PIL followed by a writ petition under Article 32 of the Indian Constitution and thereby challenged the constitutionality of Section 497 of the Indian Penal Code read with Section 198 of Code of Criminal Procedure. He stated that the said sections were violative of Article 14, 15 and 21 of the Indian Constitution. It was claimed by the petitioner that the provision of declaring adultery a crime, on the ground of gender is arbitrary and discriminatory. It was further claimed that the presence of a law like this in the Indian Legislation demolished a woman’s dignity.
The issues were raised which questioned the presence of the provision for adultery as discriminatory and arbitrary under Article 14 of the Indian Constitution. Further, it was contended that such a provision encourages the stereotype that a woman is a man’s property which accelerates the discrimination on the ground of gender which is violative of Article 15. Furthermore, the questions were raised on the dignity of a woman and the compromise she is subjected to when her sexual autonomy and her right of self-determination are denied to her. Lastly, it was contended that the act of criminalizing adultery causes an intrusion in an individual’s private realm by law.
Contentions by the Petitioner
It was contended by the Petitioner’s Council that the said provision which criminalizes adultery solely on the basis of gender has no rational nexus with the objective which was expected to be achieved while making this an offense. The wife’s consent in the entire scenario is immaterial. This makes the provision violative of Article 14 of the Indian Constitution. The said provision also discriminates on gender basis as only men get prosecuted against adultery. This makes the provision a violation of Article 15 of the Indian Constitution as well. Further, the notion upon which the provision finds its basis is that a woman is nothing more than a man’s property as it is clearly stated that in case the consent of the husband is present, the act is no more considered to be an offense. Furthermore, the provision is unconstitutional as the dignity of a woman is undermined and her right to sexual autonomy and self-determination are not respected. This violates Article 21 of the Indian Constitution. Therefore, the petitioner made the earnest request before the Hon’ble Court to strike down Section 497 of I.P.C. read with Section 198 of Cr.P.C.
Contentions of the Respondent
It was contended by the Respondents that adultery is such an offense which breaks relations among the family members and the institution of marriage is considered to be very sacred in India and thus, deterrence must be for protecting this sacred institution. It was claimed by the Respondents that adultery affects not only the spouses but also the children and the society as a whole. It is an offense which an outsider commits who has full awareness that he will destroy the sanctity of marriage. The discrimination with regard to Article 15 is saved by Article 15(3) which provides the state right to make special laws for the betterment of children and women. Hence, it was requested by the Defendants that the Court may delete the portion it finds unconstitutional but the entire provision must be retained.
Previous Judgments
- Yusuf Abdul Aziz vs. State of Bombay[1]
In this case, on the grounds of violation of Article 14 and 15, the constitutionality of Section 497 was challenged. It was contended that a wife cannot be a culprit even as an abettor. The constitutional bench of three judges upheld the said provision’s validity by stating that it is a special provision which is incorporated for women’s safety and is saved by Article 15(3). Article 14 was regarded as a general provision and was asked to be read with other Articles. It was held that sex is just a classification and by combining both, the provision becomes valid.
- Sowmithri Vishnu v. Union of India & Anr.[2]
In the instant case, under Article 32 of the Indian Constitution, a petition was filed challenging validity of Section 497 of I.P.C. it was claimed that the provision don’t provide a woman the right to prosecute another woman with whom her husband has committed the offence of adultery and hence, the provision is discriminatory. The constitutional bench of three judges in the instant case upheld the validity of the provision and held that it is not the Court’s authority to extend the ambit of an offense, but is to be done by the legislature. Further, the act of breaking a family is no less than the act of breaking a house and thus, both are offenses and hence, the punishments are justified. It was held by the Court that it is only men who can commit the offense.
- V. Revathi vs. Union of India[3]
It was upheld by the Court in this case that Section 497 read with Section 198 of the Indian Constitution have constitutional validity and is not discriminatory as the provision has debarred both husband and wife from punishing each other for committing the act of adultery. Only the outsider who makes an attempt to destroy the sanctity of a marriage is punished. Therefore, it is a reverse discrimination in her favour and not against her.
- W. Kalyani vs. State through Inspector of Police and Anr.[4]
The question with regards to constitutionality of Section 497 doesn’t arise as it states the fact that if the appellant is a woman, the provision makes her free of all the charges related to adultery and she is not liable to be prosecuted for the offense.
Recommendations given Prior to the Judgment
The 42nd Law Commission in its Report recommended that even an adulterous woman must be made liable for prosecution and the punishment must be reduced from five years to two years. However, the recommendation was never given effect.
In the 152nd Report of the Law Commission, it was recommended that there should be introduction of equality between sexes in the provision related to adultery. It must reflect the changed societal status of a woman. However, the recommendation was never accepted.
The Malimath Committe on Reforms of Criminal Justice System was formed in 2003 which recommended amendment of the provision of adultery and frame it as “Whosoever has sexual intercourse with a spouse of any other is guilty of adultery”. However, the recommendation has still not given consideration.
Observations of the Court
The first issue was with regards to manifestation of arbitrariness whether to be applied for invalidating the legislation or sub-legislation. A law which is found to be arbitrary must be struck down. Judgments such as E.P. Royappa vs. State of Tamil Nadu[5] and Shayara Bano vs. Union of India[6] were cited.
It was observed that the classification is arbitrary as only the husband is treated as the person aggrieved and given the right to be prosecuted for the offense. The wife is not provided any such right. This proves that the provision is not based on equality; rather it is based on the age-old notion that a woman is a man’s property and adultery is seen as a theft of his property. This can be concluded as it is said that consent of the husband no more makes the act an offense. The wife is not treated as an offender and only the third person is punished under the law. Such classification in itself is discriminatory and arbitrary and in today’s time finds no relevance when the society has changed and women have earned their own identity, where they stand equal to men in all spheres of life. Hence, this provision is a clear violation of Article 14 of the Indian Constitution.
The second issue stated that the provision discriminates on the basis of gender between a married man and a married woman in terms of her detriment. This provision is in itself a stereotype where a man has full control over the sexuality of his wife and she is considered to be his property. The notion that woman are not capable enough to exercise their sexual freedom and are passive is perpetuated by this provision. Women are protected under Section 497 from being punished and are not considered to be abettors. It is claimed that the provision is for the benefit of the women, and is saved by Article 15(3) of the Indian Constitution, which was inserted into the Constitution for protecting the women from patriarchy and pulling them out of state of suppression. It was the aim of the provision to bring them at par with men. However, Section 497 is not protective discrimination but finds its roots in paternalism and patriarchy. Judgments such as Government of Andhra Pradesh vs. P.B. Vijayakumar[7] and Independent Thought vs. Union of India[8] were cited.
The Court observed that the said provision violates Article 15(1) of the Indian Constitution and discriminates on the ground of sex. It perpetuates the stereotype of a man’s authority to control his wife’s sexual autonomy.
The third issue was raised with regards to the dignity of a person and his right to sexual privacy which is protected by the Indian Constitution under Article 21. A woman has the same rights as that of a man. An individual’s autonomy is his/her ability to make decisions on important matters of life. Judgments like S. Puttaswamy & Anr. vs. Union of India & Ors.[9] and Common Cause vs. Union of India and Ors.[10] were cited.
It was held by the Hon’ble Court that the provision allows the act of adultery if the husband’s consent is present. This gives a man the right to control his wife’s sexual autonomy, thus making her a puppet in the hands of her husband and in return snatches her individuality from her. The Indian Penal Code was drafted in the 19th Century and the thinking of the society with regards to women was very backward. She was treated as a chattel. However, after more than a century, the status of women today is equal to that of men. Her dignity is very important and a provision like Section 497 which finds its roots in such stereotypes cannot undermine her dignity. It is also demeaning her individuality and questioning her status and identity in her husband’s absence if, if she is treated as a victim. Enforcing forced fidelity by way of curtailing sexual autonomy is a step taken backwards from achieving the goals of fundamental right to equality and dignity enshrined under Article 21 of the Indian Constitution.
The last issue raised was with regards to a crime being defined as an offense that is affecting the society at large. However, adultery, on the contrary, is an offense which causes invasion of privacy by entering into the private realm of an individual. It may be an act where two individuals have consented which makes it a crime where there is no victim. The provision was inserted with the objective of protecting the sanctity of marriage. However, the fact cannot be ignored that adultery is a result of disruptions existing in the marriage. A few other offenses which are also related to matrimonial realm are mentioned under Section 304-B, 306, 494, 498-A of I.P.C. or violation of the Protection of Women from Domestic Violence Act, 2005 or Violation of Section 125 of Cr.P.C. These offenses are related to the woman who is married and husband and relatives are punished if found guilty.
The Court observed that it is not required that the third party in case of adultery is subjected to punishment for the offense for a maximum period of five years. The provision makes a husband an aggrieved person and woman is portrayed as a victim. Even with change in law and equal rights being granted to women against adultery, it still remains a private matter. It is better if the act is left as a ground for divorce and not a crime.
Critical analysis
The judgment led to striking down Section 497 of I.P.C as a crime. Adultery, however, still remains a civil wrong and is a ground for dissolution of marriage.
The aforementioned judgment has been criticized by many people because in their opinion it has made people commit adultery even more without any fear of prosecution. Indeed there has been an increase in the cases of adultery since it has been decriminalized. The male members of the society have also claimed that due to decriminalization of adultery, there exists no way for ensuring the purity of bloodline. There have also been claims that the Law Commission’s recommendations should have been accepted by the Parliament whereby it was recommended that men and women should be punished in the same manner for committing the offense of adultery. The Apex Court has also been subjected to criticism for taking such a decision and it has been said that the same should have been left for the legislature to decide with the changing needs of the society.
In the opinion of the Author, this judgment may lead to sexual anarchy. Most of the nations today have removed adultery as a crime from their law, because the matter is very personal to the parties which can be considered to be a civil wrong and a valid ground for divorce as the act of adultery is a result of unhappy marriage and everyone has the right to privacy. The cases of adultery being private spheres of the parties, they must be given the right and liberty to decide how they want to proceed with the case and treat it as a civil wrong if they feel so. However, India being a semi feudal nation, complete adjudication on the western nation’s notions is not feasible.
On the contrary, it cannot be ignored that criminal laws in India act as the guardians of the moral principles which exist in the society. Section 497 of the I.P.C. acted as a deterrent and created a fear in the mind of the adulterer not to commit such crime again. The law has been successful in preventing adultery to a certain extent. Instead of striking down the provision, if it would have been amended to maintain a balance, the results would have been fruitful.
Conclusion
A landmark step has been taken by the Apex Court in the legal history of the country while declaring the law making adultery a crime as unconstitutional. The principles of equality and the dignity of a woman have been rightly recognized by the Apex Court. The Court has once again made an attempt to improve the condition of women in a society dominated by males. It is a positive sign and is a way ahead towards empowering women. The idea of transformative justice has been taken a notch higher by this judgment.
However, this cannot be ignored that even though the judgment is progressive, it has completely ignored adultery as a crime from our legal system. It has made it quite vulnerable for the spouses to protect their rights in a marriage. Somehow this has resulted in weakening the institution of marriage as absolute liberty is given, post decriminalization of adultery. Hence, the law is rightly criticized on the ground of the socio-cultural impact it will have on society. Till date adultery has not been accepted in Indian society and is seen as a crime even today. Adultery will never be accepted by the society in its moral fabrics as it will always remain against its moral perceptions. However, it is also the moral duty of the Indian citizens to follow the values which are propounded by the Indian Constitution. Thus, the society must slowly accept and adapt to the changes in the norms which are laid down by the Supreme Court.
Thus, a vague ending has been given by this case to the concept of adultery. Therefore, it can be concluded that the story has not ended here and the future may hold different decisions in the matter concerning the act of adultery.
[1] Yusuf Abdul Aziz vs. State of Bombay (1954) SCR 930.
[2] Sowmithri Vishnu vs. Union of India & Anr. (1985) Supp SCC 137.
[3] V. Revathi vs. Union of India (1988) 2 SCC 72.
[4] W. Kalyani vs. State through Inspector of Police & Anr. (2012)1 SC 358.
[5] E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3.
[6] Sharaya Bano vs. Union of India (2017) 9 SCC 1.
[7] Government of Andhra Pradesh vs. P.B. Vijayakumar (1995) 4 SCC 520.
[8] Independent Thought vs. Union of India (2017) 10 SCC 800.
[9] S. Puttaswamy & Anr. vs. Union of India & Ors. (2017) 10 SCC 1.
[10] Common Cause vs. Union of India & Ors. (2018) 5 SCC 1.