A Constitution Bench of the Hon’ble Supreme Court of India has unanimously struck down Section 497 of the Indian Penal Code, 1860 and Section 198 of Criminal Procedure Code,1973 in Joseph Shine Vs Union of India as violative of Articles 14, 15 and 21 of the Constitution.
Section 497 of IPC, an archaic provision of Victorian morality, criminalised the act of adultery/sexual relationship with another man’s wife, “without his consent or connivance”, and was based on the premise that the wife is a chattel or property of her husband and the victim of the crime of adultery.
In its operation, Section 497 empowered the husband of a woman having a relationship outside her marriage with a penal provision to ensure fidelity and to get the “outsider” punished for being intimate with his wife without his permission, while he himself could commit infidelity with other, unmarried women.
Under Section 198 sub clause (2) of the Code of Criminal Procedure, only the husband of the woman was deemed to be aggrieved by the offence of adultery, and therefore only he could file a complaint in this regard, excluding even the wife of the adulterer from the category of “aggrieved person”.
Adultery Law Violates Dignity and Privacy
The Hon’ble Court has found the provision to be manifestly arbitrary and therefore violative of Article 14 of the Constitution of India, a ground for challenging a legislative act, recently expounded by Justice RF Nariman in the ‘Triple Talaq case’ (Shayara Bano Vs Union of India & Ors); and also contrary to the concept of “equality” and “essential dignity”, which has repeatedly been held by the apex court to lie at the core of Article 21 of the Constitution.
Article 21 has also been held to be violated by the provision as the dignity and privacy of the husband and wife is infringed upon.
The Court also found as impermissible the state entering the real private realm of marriage, distinguishing it from other offences relating to marriage like the demand of dowry, domestic violence, denial of maintenance etc.
The judgment penned by the Hon’ble CJI, Justice Dipak Misra, takes a practical view of the matter, that a punishment is unlikely to establish commitment.
In his words, “Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result.”
It therefore makes sense that adultery is one of the grounds for seeking divorce by both husband and wife under our legal system.
The Hon’ble CJI has called criminalising adultery a “retrograde step”, without referring to, but in the spirit of the judgment in Navtej Singh Johar Vs Union of India.
The Court has, however, decriminalised the act of adultery with a caveat that there cannot be any kind of social license to destroy a matrimonial home and the act remains a cause of action for bringing in civil action and a ground for divorce.
The concurring judgment of Justice RF Nariman traces the religious history of the sin of adultery and the law on adultery in India, along with the position of law in other jurisdictions on the subject.
The law, Justice Nariman holds, which was enacted at the time when neither divorce was permissible nor bigamy punishable, is no longer relevant and is rather anachronous with the present constitutional morality.
Thus, the argument of the state that the object behind the provision is protecting the sanctity of marriage, did not find favour with the court.
Justice Nariman has held the provision to be violative of Article 15(1), in addition to Articles 14 and 21. In conclusion, the earlier judgments of the Court in Yusuf Abdul Aziz Vs State of Bombay, Sowmithri Vishnu and V Revathi have been overruled.
‘The Good Wife’: Justice Chandrachud’s Judgment
The most detailed of the four judgments ie Justice DY Chandrachud’s opinion, is divided into 8 + 2 parts.
Justice Chandrachud, after borrowing a line from the song ‘Democracy’ by Leonard Cohen to name a section of his judgment in Navtej Johar, interestingly titled part ‘F’ of this judgment as ‘The Good Wife’.
He begins with calling out the provision as patriarchal, beneficial for the husband, to secure ownership over the sexuality of his wife and steeped in stereotypes about women and their subordinate role in marriage.
The subordination, as per Justice Chandrachud, offends her dignity which is protected under Article 21.
The judgment reaffirms what was held in Navtej Johar’s case, that the only morality that matters is the Constitutional morality, and that autonomy in matters of sexuality is intrinsic to dignified human existence.
However, what stands out in Justice Chandrachud’s judgment, in my opinion, is the acknowledgment of identity, sexuality and agency of a woman.
The sexual agency/autonomy and dignity of a woman who participates in the act, as well as the agency of the wife of the man in an adulterous relationship with another woman, to complain about the said act, has been held to be violated by the impugned provisions. The need for protection of agency of the woman has been traced to Article 15 of the Constitution.
Justice Indu Malhotra’s Judgment Reflects Equality
Justice Indu Malhotra, in her judgment, traces the roots of the law punishing adultery to the ‘Doctrine of Coverture’ of English Ecclesiastical Courts, which stipulated that once married, a woman has no separate identity than her husband.
Finding Section 497 to be replete with anomalies and incongruities, the judgment goes on to hold that the discriminatory provision is violative of Article 14 of the Constitution, the classification made therein, being no longer relevant or valid.
Women are no longer invisible to law, and they no longer live in the shadows of their husbands, holds Justice Malhotra. The underlying theme of privacy, dignity and autonomy of the judgment reflects equally in the opinion of Justice Malhotra.
Since the pronouncement of the ‘Right to Privacy’ judgment by the Supreme Court last year, the Court has progressively upheld constitutional rights of identity and dignity to be superior to social notions of morality.
The Court has dealt with one archaic and anachronous law at a time, with each judgment paving way for the next. The judgment in Joseph Shine, may sound the death knell for similar obsolete provisions including the Exception to Section 375 which exonerates marital rape.
As of now, the adultery verdict seems to have a message for the husband, to let go, and for the participants of the act of adultery – let the truth set you free.
(Adeeba Mujahid is an Advocate-on-Record at the Supreme Court of India. She regularly practices before the Supreme Court and the Delhi High Court. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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