Constitutionality of Adultery under Indian Penal Code
Adultery is defined as voluntary sexual intercourse between a married person and a person who is another spouse. Section 497 of the Indian Penal Code deals with Adultery which says "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 offense of rape, is guilty of the offense of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both." In such cases, the wife shall not be punishable as an abettor.
Section 497 came under the preview of courts several times in the past but the Supreme Court held Section 497 as valid. Previously Only a man who had consensual sexual intercourse with the wife of another man without his consent could have been punished under this offense in India. A man found guilty of adultery shall be punished with imprisonment of either description for a term which may extend to five years or with fine or both.
BACKGROUND OF SECTION 497 OF IPC
There were several times before where the question has arisen on the constitutional validity of Section 497 of IPC.
Cases in which Section 497 is held Constitutional:
Yusuf Abdul Aziz v/s State of Bombay, 1954 [i]
In this case, the constitutionality of Section 497 was challenged because it violates Article 14 and Article 15, by saying a wife cannot be a culprit even as an abettor. The 3judge bench upheld the validity of the said provision as it is a special provision created for women and is saved by Article 15(3). And Article 14 is a general provision and has to be read with other Articles and sex is just classification, so combining both it is valid.
Sowmithri Vishnu v/s Union of India, 1985 [ii]
In this case, a petition was filed under Article 32 challenging the validity of Section 497 of IPC. The challenge was based on the fact that the said provision does not provide the right to a woman to prosecute the woman with whom her husband has committed adultery and hence is discriminatory. The 3judge bench in this case also upheld the validity by stating that extending the ambit of offense should be done by the legislature and not by courts. The offense of breaking a family is no smaller than breaking a house, so the punishment is justified. The court accepted that only men can commit such an offense.
V. Revathi v/s Union of India, 1988 [iii]
In this case, the court upheld the constitutional validity of Section 497 read with Section 198 by stating that this provision disables both wife and husband from punishing each other for adultery hence not discriminatory. It only punishes an outsider who tries to destroy the sanctity of marriage. And thus, it is reverse discrimination in ‘favor’ of her rather than ‘against’ her.
The Supreme Court observed that adultery law was a shield rather than a sword. The court ruled that the existing Adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men. But the Constitutional bench of the Supreme Court on 28th September unanimously struck down Section 497 IPC in the case of Joseph Shine v/s Union of India.
CASE OF JOSEPH SHINE V/S UNION OF INDIA [iv]
Decided - 27th September 2018.
Parties - Petitioner(s) – Joseph Shine, Respondent(s) – Union of India
Supreme Court bench- Dipak Mishra, R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, Indu Malhotra.
Citations -2018 SC 1676
Facts of the Case:
A writ petition was filed under Article 32 of the Constitution by Joseph Shine, a hotelier who is a non – resident Keralite challenging the constitutionality of Section 497 of IPC read with Section, being violative of Article 14, 15, and 21. This was at first a PIL filed against adultery. The core reason behind this petition was to shield Indian women from being punished for extramarital relationships by vengeful women or their husbands. The petitioner claimed the provision for adultery to be arbitrary and discriminatory based on gender. The petitioner claimed that such a law demolishes the dignity of a woman. The constitutional bench of 5 judges was set up to hear the petition.
· Whether the provision of Adultery under Article 14 is Arbitrary and Discriminatory?
· Whether the provision for Adultery encourages the generalization of women being the property of men and discriminates on gender basis under Article 15?
· Whether criminalizing adultery is interference by law in the private sphere of an individual?
· Whether the dignity of a woman is compromised by denial of her sexual freedom and right to self-determination?
· Whether Section 497 of the Indian Penal Code is unconstitutional?
1. The Petitioner contended that the provision of Adultery is based on the notion that a woman is the property of the husband. It further says that if the husband gives consent then adultery is not committed.
2. The provision of adultery is discriminative on the gender basis as it provides the right to prosecute against adultery to only men which are violative of Article 15 of the Constitution.
3. The Petitioner contended that the provision is unconstitutional as it abates the dignity of a woman by not respecting her sexual freedom and autonomy which indeed violates Article 21.
4. The counsel of the Petitioner contended that the provision illegalizes adultery on classification based on sex alone where the consent of the wife is immaterial hence violating Article 14 of the constitution.
So, Section 497 of the Indian Penal Code must be struck down.
1. The respondents contended that the offense of adultery breaks the family relations and limitation should be there to protect the institution of marriage.
2. The respondents further claimed that adultery affects the spouse, children, and society at the same time as it is an offense committed by a stranger with complete awareness to destroy the spirituality of marriage.
3. They contended that even though there is discrimination by the provision, the state right to make special laws for women and children by Article 15(3) of the Constitution.
They requested the court to delete the portion which is unconstitutional and to retain the provision.
1. In 2003, the Malimath Committee on Reforms of Criminal Justice System was formed which recommended amending the provision as ‘whosoever has sexual intercourse with a spouse of any other is guilty of adultery’. The same is pending for consideration.
2. In the 152nd Law Commission report, it was recommended introducing equality between sexes in the provision for adultery and reflecting the societal change with regards to the status of a woman. But it was not accepted.
3. In the 42nd Law Commission report, it was recommended to include adulterous women liable for prosecution and reduce punishment from 5 years to 2 years. It was not given effect.
OBSERVATIONS OF THE COURT
The test of manifest arbitrariness should be applied to nullify the legislation or any sub-legislation. Any law found arbitrary will be struck down.
Shayara Bano v/s Union of India, 2017 [v]
E. P. Royappa v/s State of Tamil Nadu, 1974 [vi]
The classification is found to be unjustifiable in the sense that it treats only the husband as an aggrieved party and given the right to prosecute for the offense of Adultery and no such right is provided to the wife. The provision does not establish equality.
The offense is based on the notion of women being a property of the husband and adultery is considered to be a theft of his property because it says consent by the husband would not amount to an offence.
The provision does not treat the wife as a wrongdoer and punishes only the third party.
Such classification is arbitrary and discriminatory and has no significance in present times where women have their own identity and stand equal to men in every aspect of life. This provision violates Article 14.
Independent thought v/s Union of Kerala, 2017 [vii]
Government of Andhra Pradesh v/s P.B. Vijayakumar, 1995 [viii]
This provision differentiates between a married man and a married woman to her detriment based on sex.
This provision is based on the notion that a man has authority over his wife’s sexuality and she is considered as his property. It preserves the notion that women are passive and incapable of exercising their sexual freedom.
Section 497 protects women from being punished as abettors. It is expressed that this provision is beneficial for women, by Article 15(3). Article 15(3) was introduced to protect the women from patriarchy and pull them out of suppression. This article was aimed to bring them equal to men. But Section 497 is not protective discrimination but grounded in paternalism and patriarchy.
Thus, the said provision is against Article 15(1) of the constitution because it is discriminatory based on gender and preserving the notion of controlling a wife’s sexual freedom.
A crime is defined as an offense that affects society as a whole. Adultery, on the other hand, is an offense which commensurates to entering into the private sphere.
Adultery may be committed by two adults with consent making it a crime without a victim.
This provision aims to protect the spirituality of marriage but we should admit that because of a pre-existing interruption of marital relationship, adultery is committed.
The other offenses related to matrimonial spheres such as Section 306, 498-A, 304-B, 494, or any violation of the Protection of women from Domestic Violence Act, 2005 are related to the destruction of the life of a married woman and punishes her husband and relatives.
A third party is punished for a criminal offense with a maximum of 5 years imprisonment in adultery. This is not required in the opinion of the court.
This provision makes a woman a victim and a husband an aggrieved person. Even if there is a change in law and provided equal rights to women against adultery, it is a personal matter.
Adultery is better left as a ground for divorce and not a crime.
Article 21 of the Constitution protects the dignity of Individual and sexual privacy. A woman has an equal right to privacy as a man. The independence of an individual is the ability to make decisions on crucial matters of life.
Common Cause v/s Union of India and others, 2018 [ix]
S. Puttaswamy and Anr. v/s Union of India and others, 2017 [x]
The provision allows adultery on the husband’s consent, which gives a man control over his wife`s sexual freedom. This makes her a puppet in the hands of his husband and takes away all her individuality.
When the Indian Penal Code was drafted the societal thinking regarding women was backward and she was treated as a movable property but after 158 years the status of women became equal to that of men. Her dignity is of utmost importance which cannot be abated by a provision that preserves such gender stereotypes.
Treating women as victims also degrades her individuality and questions her identity in the absence of her husband.
The enforcement of forced loyalty by curtailing sexual freedom is an outrage to the fundamental right to dignity and equality which is provided under Article 21 of the Constitution.
Section 497 is struck down as unconstitutional being violative of Articles 14, 15, and 21 of the Constitution.
On 27th September, a 5 judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14, 15, and 21 of the Constitution and decided that adultery can be grounds for any civil wrong including dissolution of marriage.
The law must proceed with changing ideas and ideologies in a changing society. Law must take cognizance of the changing society and it must be compatible with the developing concepts and ideologies in the changing times. The need of the present has to be served with the interpretative process of law. Equality before the law does not only represent equal access to the law, but also equal exposure to the law. This is one of the principles followed by the five-judge bench of the Supreme Court, which has struck down as Section 497 of the Indian Penal Code as unconstitutional that had criminalized adultery for 158 years. But the decision’s basic reasoning and its true spirit will take time to fully accumulate into the current social concoction.
[i]Yusuf Abdul Aziz v/s State of Bombay, AIR 1954 SC 321. [ii] Sowmithri Vishnu v/s Union of India:1985 AIR 1618, 1985 SCR Supl. (1) 741. [iii] V. Revathi v/s Union of India & Ors. 1988 2 SCC 72. [iv] Joseph Shine v/s Union of India, Writ Petition (Criminal) No, 194 of 2017. [v] Shayara Bano v/s Union of India, (2017) 9 SCC 1 Writ Petition (C) No. 118 of 2016.
[viii] Government of Andhra Pradesh v/s P.B. Vijayakumar, 1995 AIR 1648, 1995 SCC (4) 520.
[ix] Common Cause v/s Union of India and ors, Writ Petition, (Civil) No. 387 of 2000.
[x] S. Puttaswamy and Anr. v/s Union of India and ors, Writ Petition (Civil) No. 494 OF 2012.
ABOUT THE AUTHOR
This blog has been authored by Bhargavi Nagendla, who is a 2nd Year B.A., LL.B. (Hons.) student at Damodaram Sanjivayya National Law University, Visakhapatnam.
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