New Delhi: A five-judge bench headed by Chief Justice of India Dipak Misra on Thursday unanimously ruled that Section 497 of the Indian Penal Code is unconstitutional, and struck it down.
Section 497 states:
“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.”
The part of Section 198 of the Code of Criminal Procedure which deals with adultery was also declared unconstitutional.
The case was heard by a bench presided by CJI Misra and comprising Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra over six days beginning August 1.
“There cannot be a shadow of doubt that it (adultery) is a ground for divorce but it can’t be a crime,” the CJI said while reading out his judgment. “It is time to say the husband is not the master,” LiveLaw quoted Misra as saying.
“Any provision treating woman with inequality is not constitutional,” Justice Misra said.
According to the CJI, adultery can only be a criminal offence if it attracts the scope of Section 306 (abatement to suicide) of the IPC, and not on its own.
While reading his judgment, Justice D.Y. Chandrachud said that Section 497 deprives a woman of agency, and autonomy, and destructive of a woman’s dignity. The law of adultery is codified in patriarchy, the judge continued. “A woman loses her voice, autonomy after entering marriage and manifest arbitrariness is writ large in Section 497,” LiveLaw quoted Chandrachud as saying.
“Respect for sexual autonomy must be emphasised,” he continued.
Justice Indu Malhotra read her judgment after Chandrachud, and said that Section 497 “institutionalises discrimination”.
The Centre had defended the law, saying that it was needed to protect the “sanctity” of a marriage.
“It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its Constitution powers,” the Centre had said.
The petitioners, on the other hand, had argued that criminal law should not be used to control or check private morality or immorality. Criminal law should be used only as a last method of social control. During the course of the hearing, the Supreme Court’s statements suggested that the bench was veering towards striking down the law.
A key issue that was brought up during trial, according to a News18 report, was one of consent. It was questioned whether a sexual act between consenting adults, albeit not prescribing to conventional notions of morality, could be treated as a criminal offence.
CJI Mishra had orally observed in August, “If a third party attacks or molests the wife of another, it amounts to rape. Rape is an offence. But if a relationship is carried with the consent of the woman, how does it amount to an offence? If there is consent [between two adults], why punish the wife’s lover?”
The colonial-era law criminalising adultery with punishment up to five years imprisonment was drafted in 1860. The section criminalises anyone who “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”.
It adds that: “In such case the wife shall not be punishable as an abettor.”
Several lawyers and activists welcomed the decision, saying it was an antiquated colonial era law that treated women as properties of their husbands.
Senior Supreme Court lawyer Prashant Bhushan termed the verdict a fine judgement that did away with an “antiquated” law.
“Another fine judgement by the SC striking down the antiquated law in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery (only of man who sleeps with someone’s wife). Adultery can be ground for divorce but not criminal,” Bhushan said on Twitter.
Congress MP and president of the women’s wing of the party Sushmita Dev agreed with him.
“Excellent decision to de-criminalise adultery. Also a law that does not give women the right to sue her adulterer husband & can’t be herself sued if she is in adultery is unequal treatment & militates against her status as an individual separate entity,” she tweeted.
The National Commission of Women chief Rekha Sharma, too, welcomed the judgement and said it should have been removed long time ago. “This is a law from the British era, although British had done away with it long back, we were still stuck with it,” she said.
According to social activist Ranjana Kumari, “patriarchal control” over women was unacceptable.
“We welcome the judgement by the SC striking down the 158yr old law based on Victorian values, in Sec 497 of Penal code, which treats women as property of husbands & criminalises adultery. Patriarchal control over women’s body unacceptable,” she tweeted.
However, Lok Sabha MP and All India Majlis-E-Ittehadul Muslimeen president Asaddudin Owaisi tweeted against the verdict, saying it did not make sense to criminalise triple talaq while de-criminalising adultery.
The Supreme Court didn’t say Triple Talaaq is Unconstitutional but “set it aside “but Apex Court has said 377 & 497 is Unconstitutional will Modi Government learn from these judgments and take back their Unconstitutional Ordinance on Triple Talaaq
— Asaduddin Owaisi (@asadowaisi) September 27, 2018
(With PTI inputs)