The bench, which included
- Chief Justice Dipak Misra
- Justices R F Nariman
- A M Khanwilkar
- D Y Chandrachud
- Indu Malhotra
Unequal treatment of women invites the wrath of the Constitution – CJI Misra for himself and J. Khanwilkar
Justice DY Chandrachud said that autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of past.
Adultery is a relic of the past – Justice DY Chandrachud
Section 497 of the 158-year-old IPC essentially made it a crime for a man to have sexual intercourse with the wife of another man without the other man’s consent.
Adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage
- Section 497 of IPC says that if a man has sexual intercourse with another’s wife without the husband’s “consent or connivance”, he is “guilty of the offence of adultery and shall be punished
- Section 198 (1) and (2) of the Code of Criminal Procedure deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court.
- It punishes the “outsider” who breaks into the matrimonial home through illicit relationship with one of the spouses.
- Contentiously, only the erring man is liable to be punished for the offence.
- The provisions give only husbands the exclusive right as an aggrieved party to prosecute the adulterer in a case involving his wife.
- However, a similar right has not been conferred on a wife to prosecute the woman with whom her husband has committed adultery.
- Also, the provision does not confer any right on the wife to prosecute her husband for adultery.
- Further, if the husband of the woman gives his consent for the sexual affair with another man, no offence lies.
- The law also does not take into account cases where the husband has sexual relations with an unmarried woman.
What does adultery means?
- Adultery means voluntary sexual intercourse of a married person other than with spouse.
- The legal definition of adultery however varies from country to country and statute to statute.
- While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent.
- Though the modern trend is to decriminalize adultery, historically, many cultures have regarded adultery as a crime.
- Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery.
Adultery in other countries
- At present, only 20 countries criminalise adultery. Most of their criminal justice system is based on Islamic Laws. For example, in Pakistan, adultery is punishable with death.
- The only industrialised country to criminalise adultery is USA.
- All European countries and many Latin American countries have decriminalised adultery.
Yusuf Abdul Aziz vs. The State of Bombay (1954):
- The Supreme Court upheld the constitutional validity of Section 497 of the Indian Penal Code (IPC)
- It held that Section 497 did not violate the right to equality as enshrined in Articles 14 and 15 of the Constitution.
Sowmithri Vishnu v. Union of India (1985)
- Upheld the constitutional validity of the law.
- Even though the social scenario may have changed, it is not for the court but for the legislature to decide the policy of law.
- It is not in violation of Article 14 and 16 of the Constitution as it is commonly accepted that “it is the man who is the seducer and not the woman”.
- Protection from prosecution given to women under Section 497 is in tune with Article 15 (3) of the Constitution. Article 15 (3) allows the legislature to make “special provisions” which are “beneficial” for women and children.
Revathi versus Union of India, 1988
- Section 497 does not discriminate on the basis of gender.
- Law only punishes the “outsider” who breaks into the matrimonial home and violates the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses.
- The court observes that as husband cannot prosecute the wife for violating the sanctity of marriage in the same way women cannot file a case against offending husband under adultery law
- However, the erring man alone can be punished and not the erring woman.
Brij Lal Bishnoi v/s State (1996)
- Only sexual intercourse with a married woman would amount to adultery. Sexual relations with a widow, sex worker or an unmarried woman would not attract punishment under Section 497 of the IPC.
Issues with Section 497 of the IPC:
Treats woman as a property of man
Criminalises only the man and not the woman involved:
Does not allow the wife to prosecute her adulterous husband:
It is adultery only when it involves a married woman:
Marriage is social contract and breach should be only civil
If the consent of the husband was received it is not adulterous:
Committees/Recommendation On Section 497 And Adultery
The 42nd Report of the Law Commission(1971)
156th Law Commission Report (1997)
Justice Malimath Committee (2002)
Supreme Court Of India Observation On Section 497 in 2018
- The Supreme Court said the dusty Victorian provision of adultery in the Indian Penal Code treats a married woman as her husband’s “subordinate.”
- The apex court in its recent observation opined that this provision treats women as personal property. It observed that the fulcrum of offence within the Section is destroyed if the husband were to consent to the wife having a relationship with another man.
- Section 497 is archaic.The concept of gender neutrality, on which criminal law is normally based, is absent in Section 497 of IPC.
- The law violates article 14 of the constitution as it creates an irrational classification between men and women
- Once the consent or connivance of the husband is established, there is no offence of adultery at all.Thus, the law allows the husband to control the sexuality of his wife.
- It rejected the argument that special protection has been given to women due to Article 15(3)
- If the women break sanctity of marriage, the law provides male right to blame a third person responsible for the failure of a marriage rather than looks at the inadequacies in their own relationship
Supreme Court Judgement On Section 497 on 27 September 2018
|Supreme Court Verdict||Section 497|
|Date of verdict||27 September 2018|
|Judges Who Give verdict|
|Section 497 Status Now||Unconstitutional|
|Verdict by All Judges|
|What All Judges Said About Adultery Law||Unequal treatment of women invites the wrath of the Constitution – CJI Misra for himself and J. Khanwilkar|
Adultery is a relic of the past – Justice DY Chandrachud
Adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage – CJI Misra for himself and J. Khanwilkar
Legislature has imposed a condition on sexuality of women by making adultery as offence – Justice DY Chandrachud
Women must be treated with equality with men. Any discrimination shall invite wrath of Constitution. A woman can’t be asked to think the way society desires – CJI Misra for himself and J. Khanwilkar
Woman an object?
- One of the examples used to argue that Section 497 is anti-women is that the law does not make it a crime for a man to have sexual intercourse with the wife of another man if he takes the consent of the other man.
Section 497, which makes adultery a criminal offence, struck down by the Supreme Court