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Adultery abolished: Section-497 of Indian Penal Code struck down by the Supreme Court
Team SoOLEGAL 16 Jan 2020

Adultery abolished: Section-497 of Indian Penal Code struck down by the Supreme Court

A five-judge bench explicitly ruled on 28 September 2018 that Section-497 of Indian Penal Code,1860 is unconstitutional. The Hon’ble Supreme Court has ruled over its earlier judgments. Until now, the Supreme Court in many cases has held that decriminalization of the crime of adultery would erode the sanctity of marriage and the whole fabric of society.

 

In December 2017, Joseph Shine filed a petition challenging validity of Section-497, the matter was referred to a five-judge bench from a three-judge bench in the Supreme Court.

 

Issues/ questions raised before the court:

·         Whether Section-497 is unconstitutional?

·         If adultery should be made gender neutral?

·         Women were treated as an object under law, is it justified with regard to current scenario?

 

History of judicial decisions relating to adultery:

It is obvious from a simple reading to bare provision of Section 497 of IPC that this section punishes the male offender for committing adultery with a married woman without her husband's permission or connivance.

In the case of Yusuf Abdul Aziz v State of Bombay 1954 SCR 930, the accused i.e. Yusuf was on a trial for adultery, he further challenged Section-497 on the grounds that it violates Article-14 of the Constitution. The decision was given against him in the Bombay High Court. He moved the matter to the Supreme Court and argued that Section-497 does only apply to males and confers no criminality on women and is also in violation of Article-14 and 15. The court held against the appeal relying heavily on the provision mentioned in Article-15(3) and the apex court further said that Section-497 is a special provision which is made for women and is saved under the same.

 

It has to be kept in mind that  the Indian Penal Code was framed by Britishers in 1860 when women were considered to be a property of their husband. Back then it was the result of the patriarchal structure and a clear reflection of the same was Section-497.

Further, Justice Nariman said, “the background in which this provision was enacted now needs to be stated”.

In 1860 when Penal Code was enacted, the Hindu majority which was prevalent at that time had no law of divorce as marriage was considered sacramental and also pre-1955 era a Hindu could marry as many wives as he can. By analyzing this Justice Nariman said adultery did not exist at that time as there was no divorce law and a man could marry any number of women.  

Back then, the scope of adultery was much wider than it is now. At that time it was termed as a consideration of marriage as a sacred institution and punishment for breach of trust.

 

Legislative intent: The intent behind Section-497 was that men should be held liable for the offence and this was due to the fact that the position of women during that period was not at par, they were considered to be a property of their husband and the law was to protect interests of women.

 

Flaws in the adultery laws in India: Then CJI Dipak Misra made certain observations that the adultery law in India was based on a discriminative basis as it assumes one of the parties as victims and the other one as criminal.  He also took the ‘consent’ aspect into consideration as it implies that a woman can sleep outside her marriage with the permission of her husband which implies that the husband controls and keeps a check on the sexual autonomy of his wife.

 

Another major problem has been that instead of dealing with personal issues in marriage, this law gave an opportunity to the married couple to blame a third party because of inadequacy of their marriage. Hence, it would be rather be more sensible to approach the court for mutual divorce rather than putting a third party behind bars.

 

 

Decision given by the court:

 

The Hon’ble Supreme Court struck down the provision and contented that “husband cannot be the master of his wife

The Court observed:-

·         Section-497 is archaic and constitutionally invalid- Section 497 disposes women of their autonomy, their independence and their privacy. It is seen as a violation of their right to life and personal freedom by embracing the notion of marriage that overthrows true equality. Equality has been overthrown by introducing penal code penalties for a gender-based approach to man-woman relationships. Under Article 21 of the Constitution of India, sexual integrity falls within the domain of personal liberty.

·         Adultery is no longer a criminal offence- A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

·         Husband is not the master of his wife- A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

 

After the historical verdict, it was expected to have mixed opinions amongst the community as some critics were in favor of the verdict and some were opposing the decision. People who were in favor of the verdict had put forward their views that the society perceives adultery as incorrect and a moral wrong. The law of adultery was constituted in the past because of the weaker position of women and to safeguard their safety which was more or less in the hands of their husbands Although now the situation has changed and women have become more independent and literate.

 

Critics who are opposing the notion said it is influenced by western culture and it should be noted that divorce rates in western countries are 52% and rising and they do not want India to follow the same trend. Further, in order to sustain marriage it is recommended to not encourage extra-marital affairs.

 

 

The intention behind passing of adultery law was misinterpreted by people; the law only had one intent behind it which was to protect interests of women with keeping in regard the position of women in the society at that time. But, the fact that women nowadays are getting independent and so much aware of their rights and society as a whole, needs consideration and with due regard this law should have been reformed as it has been by the Apex court in this case.

 

It must be kept in mind that the deletion of these provisions does not mean that there are no legal consequences for engaging in adultery. These consequences need not be criminal, and a remedy may be found in civil law, where adultery already has a place. It is a ground for divorce in personal laws. 

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