This Case Summary is written by Saurabh Gupta & Yashaswini Sangania, students of Nirma University

Synopsis

The provision of adultery under section 497, Indian Penal Code saw women as men’s property has been repealed because it treats women as chattels rather than human beings. The culture in which we live has two sets of morality standards for assessing sexual behaviour: one for males and one for females, which ascribes unattainable qualities to women and restricts them to a restricted area of behaviour through the expectation of compliance.

The legal subjugation of one sex to another is immoral in and of itself, and is currently one of the greatest impediments to human progress in world; and that it should be replaced by a system of full equality, permitting neither power nor privilege on the one hand, nor handicap on the other hand, women cannot be treated as second-class citizens in today’s society with such discriminatory rules. This case comment deals with all the issues related to Adultery and its decriminalization.

Background

The constitutional validity of this provision has been challenged in 4 previous judgements.

• YUSUF ABDUL AZIZ v. STATE OF BOMBAY

The appellant Yusuf Abdul Aziz, when charged under section 497 of IPC, challenged its constitutional validity that it violated his right to equality under article 14 and 15(1). He claimed that the provision of adultery did not make women culpable in an adulterous relationship and was discriminatory against men making them solely liable for the act. The supreme court upheld the constitutional validity of the impugned section by declaring it a special provision safeguarded under article 15(3) of the constitution which does not allow the article to prevent the State from making any special provision for women and children.

• SOWMITHRI VISHNU v. UNION OF INDIA & ANR.

Sonwrithi vishnu approached the supreme court under article 32 of the constitution, challenging the constitutional validity of section 497 of the Indian Penal Code. It was contended that this section does not give a wife the right to prosecute her husbands or the woman they have sexual relations with, for the offence of adultery. It was further contended that the provision that prima facie seems to be a measure of positive discrimination in favor of women, was in fact based on the notion that women are mere chattels of men. The apex court upheld the validity of the provision and interpreted the definition of adultery literally, stating that it could only be committed by men and not women. Extending the ambit (if required) of the offence under section 497 was a task for the legislature and not judiciary.

• V. REVATHI v. UNION OF INDIA 

In this case V. Revathi filed a petition under article 32 of the constitution, challenging the Section 198 Cr.P.C. She contended that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband. the court ruled in the favor of the provision stating that it Is not discriminatory on the basis of sex, as it does not allow the wife or the husband to prosecute each other on the occurrence of such an offence. It punishes the third party i.e. a male who commits adultery and defiles the sanctity of the matrimonial bond. 

• W. KALYANI v. STATE THROUGH INSPECTOR OF POLICE AND ANR 

The constitutionality of section 497 was not questioned in this case but it was remarked that a woman is completely immune to the charge of adultery and cannot be proceeded against for the same.

Brief Facts

Joseph Shine, a Keralite hotelier in Italy, filed a writ petition under Article 32 questioning the constitutional validity of Section 497 of IPC read with Section 198 of CrPC. He argued that this provision for adultery violated article 14, 15 and 21 and was also discriminatory on the basis of sex. 

Suicide of his close friend in Kerala due to false rape charges made by a female co-worker motivated him to file the PIL where he claimed that such a provision defiles the dignity of women by treating them as mere objects or property of men while also imposing culpability on only men for an act that was consensual.

Issues

• Whether Section 497 of Indian Penal Code is manifestly arbitrary and discriminatory under Article 14 of the Indian constitution.
• Whether Section 497 of Indian Penal Code encourage women to be a mere chattel violating under Article 15 of the Indian constitution.
• Whether Section 497 of Indian Penal Code violates private realm of an individual violating Article 21 of the Indian constitution.

Arguments

AGRUMENT ADVANCED BY THE PETITIONER

• VIOLATION OF ARTICLE 14 OF INDIAN CONSTITUTION

The learned counsel on the behalf of petitioner argued that Section 497 of IPC & Section 198(2) of CrPC deprives the women right to prosecute her husband, who had maintained sexual relationship with another unmarried women and thereby is arbitrary and fails to pass reasonable classification test laid down under Article 14 of the Indian Constitution. It discriminates on the basis of sex and violates the fundamental principle of equality and equal treatment. 

The counsel further argued that reasonable classification on the basis of sex is absurd and does not benefit any class and relied on the case of State of U.P. v. Deoman Upadhyaya, where the court held that reasonable classification under Article 14 has to be made only when absolutely necessary. Moreover, in the case of Lachhman Das v. State of Punjab, it was held that anxious and overemphasis on the doctrine of reasonable classification may lead to devoid Article 14 its own virtue.

Moreover, in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors, it was held that to pass the test of reasonable classification, the classification should have reasonable nexus with the object sought. Learned counsel in the present case argued that Section 497, IPC made classification on the basis of gender and marital status and such classification does not have reasonable nexus with the object sought, and therefore violative of Article 14 of the Indian Constitution.

• VIOLATIVE OF ARTICLE 15 OF THE INDIAN CONSTITUTION

The counsel on the behalf of petitioner argued that in the case of Kalyani v. State of Tr. Inspector of Police and Another, it was held that the consent of women is not relevant under section 497, IPC. Thereby Article 15 of the Indian Constitution cannot disguise itself as a protective discrimination and cannot act as a cover up for offences having penal consequence and promoting oppression against women which is not maintainable under any sound law.

Therefore, the counsel submitted that the law which takes away right of one particular sex to prosecute cannot be termed under the ‘beneficial legislature’ under Article 15 (3).

• VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION

The learned counsel submits that women in society needs to be considered on equal footing as men and plays equal role in the development as well as in the making of society. Article 21 of the Indian Constitution guarantees right to life with dignity, whereas Indian women are suffering from discrimination from ages in silence. Similarly, section 497 of IPC permits a man to have an adulterous relationship with a women other than his wife questions right to dignity of the wife and further depletes her legal right to prosecutes her husband in court of law.

Moreover, Hon’ble Supreme Court in the case of K.S. Puttaswamy and another v. Union of India held right to privacy under the ambit of Art. 21 of the Indian Constitution and layed immense stress on the dignity of the individual and held dignity and freedom to be dependent and a means to achieve the other. Therefore, the counsel submitted that any kind of relationship among the individuals is a matter of privacy and violating right to privacy of the individual would violate right to life under article 21 of the Indian Constitution.

ARGUMENT ADVANCED BY THE RESPONDENT

• VIOLATION OF ARTICLE 14 OF INDIAN CONSTITUTION

The learned counsel on the behalf of Respondent argued that Art. 14 of the Indian Constitution is general in nature and needs to be read with other provisions which are set out the ambit of fundamental rights. It was further argued that Sex is a sound and valid classification and there can be no discrimination on the basis of sex. Moreover, the legislature itself differentiates on the basis of sex by providing special provisions for women and children. Therefore, it is submitted that by the virtue of art. 14 and special provisions for women validates section 497 of the IPC.

• VIOLATIVE OF ARTICLE 15 OF THE INDIAN CONSTITUTION

The counsel on the behalf of Respondent laid its reliance on Yusuf Abdul Aziz v. The State of Bombay, and argued that section 497, IPC needs to be read Article 15(3) which provides provisions for protection of women and children. Section 497, IPC provides such protection as adulterous women cannot be punished, not even as an abettor, under the impugned section. 

• VIOLATIVE OF ARTICLE 21 OF THE INDIAN CONSTITUTION

The learned counsel on the behalf of Respondent rebutted the petitioner’s contention and argued that right to dignity and privacy enshrined under Art. 21 of the Indian Constitution is not absolute and is subjected to greater public interest. Further, individuals are free to have consensual sexual relationship outside the martial bond and only extra marital sexual relationships are warranted under Section 497 of the Indian Constitution. 

The Counsel further argued that the India is a land of culture, ethics and tradition, where marriage is the founding stone for all. Section 497 of IPC, preserves the sanctity of the most important institution of the Indian Society and thus submitted that right to privacy and dignity could be restricted for public interest and greater good.

Judgement

• VIOLATION OF ARTICLE 14

The court found that the impugned judgement was arbitrary and does not have reasonable classification. The court found the classification arbitrary as it gave prime importance to the husband allowing him as an aggrieved person the right to prosecute against adultery while giving absolutely no rights to women for the same. This offence is indirectly derived form the notion that women are mere property of men they are married to and any person trespassing that property without the permission of the husband is committing an offence against him. The court referred the case of Shayara Bano v. Union of India and stated that the a test of manifest arbitrariness should always be applied in such cases to check the validity of legislations and the arbitrary ones should be struck down.

Taking the case of E. P. Royappa vs State Of Tamil Nadu as a precedent It was noted that Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14

• VIOLATION OF ARTICLE 15

The court found that the impugned provision was not a case of protective discrimination against women but an inherently discriminatory act deep rooted in patriarchy.

The court found the provision discriminatory as it further boosted the stereotype of men having control over their wives’ sexuality. It boosts the false notion that women are incapable of exercising their individual sexual freedom and can be wooed or seduced by men without their awareness. The provision treats women as passive objects which can be misappropriated and also gives them protection from being punished as abettors to the offence of adultery. The provision for protective discrimination against women in Article 15(3), as per the Government of Andhra Pradesh v. P B Vijayakumar, was made to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women. It was also noted from the case of Independent Thought vs. Union of India that protective discrimination was to be employed in a manner that is not entrenched in the paternalistic notions of ‘protection’ Dignity and autonomy are crucial to substantive equality and thus section 497 was found violative of Article 15(1) of the constitution.

• VIOLATION OF ARTICLE 21

The court found section 497 violative of the sexual privacy and dignity of a women and takes away the autonomy granted to her by Article 21 of the constitution.

The provision did not make adultery an offence if committed with the husbands consent which implies that he is puppet master of his wife and hence the wife is deprived of her sexual autonomy as well as individuality. The impugned section gives the idea that even after the passage of 158 years, and big ideas of women being equal to men they are still subconsciously the chattels of their husbands who wouldn’t have an identity without them. By taking the cases of S. Puttaswamy and Anr. vs Union of India and others and Common Cause v. Union of India and ors. the court said that curtailing the sexual autonomy of women is violative of the fundamental right to dignity and equality provided under Article 21.

Critical analysis

Historically, adultery has always been seen as a severe and legitimate offence in many cultures and countries. The law on adultery is continuously developing as in the past, the woman was held accountable for the offence, however, under current legislation, the male who commits adultery was punished under section 497 of the Indian Penal Code, and the wife is not held responsible.

Criminalisation as well as decriminalisation is an importance facet of criminal law and it is important to note, how criminal law is interacting with the people and upholding the moral values that organises a society. Since, the society can’t be static, there is always a need of attention of legislature to satisfy the developing needs.

Marriage is one of the social institutions which is considered very important for the smooth functioning of the society. Adultery has been a conflicted issue since a very long time and its quite astonishing to find that the law which safeguards the holiness and sanctity of marriage from dishonesty and misrepresentation, has been decriminalised 

As observed by Justice Dipak Mishra in the case of Joseph Shine v. UOI, the law of Adultery is premised on a discriminatory principle, since one of the adultery parties is assumed to be a victim and the other to be a criminal, and thereby a violation of Article 14 of the Indian Constitution because it leads to arbitrary gender categorization. While the judgment is likely to have a wide-ranging influence on marriages, the negative consequences cannot be overlooked. The legalisation of adultery will jeopardise the institution of marriage in a society where divorce rates and incidents of marital infidelity are on the rise. Not only does it risk promoting extramarital relationships, but it also risks catalysing the breakdown of marriages, leaving children of divorced parents in the lurch.

Decriminalizing section 497, IPC has a western influence and divorce rate in western countries is 52% and rising. To prevent India from following the trend, laws and sanctions against extra-martials affairs needs to be stricter.

Moreover, instead of decriminalising adultery under Section 497 IPC, only Section 198 of the Code of Criminal Procedure 1973, which prohibits wives from bringing adultery cases, should have been decriminalised. The section should have been gender-neutral from the start.

Conclusion

The Hon’ble Supreme Court has decriminalized 150 anti-adultery laws because they favour a husband who acts like a master of his wife. This case comment concludes that society has changed dramatically, and women are no longer considered the property of their husbands. The rule outlawing adultery, as Chief Justice of the Supreme Court of India at the time quoted, is arbitrary and degrades a woman’s dignity.