“Autonomy is intrinsic in dignified human existence, and Section 497 denudes women from making choices and held adultery as a relic of the past.”- Chief Justice Dipak Misra.
INTRODUCTION
Understanding section 497[1] of IPC:
Section 497 of the Indian Penal Code defines the offence of adultery and makes it a punishable offence. It is stated that if a man engages in sexual activity with a married woman without her husband’s consent. The man might have to pay a fine in addition to serving five years or more in jail. The term adultery, in general, has been defined as ‘sex between a married man or woman and someone he or she is not married to.’[2]. The offence of adultery was a non-cognisable (a circumstance where a police officer cannot make an arrest without a warrant) and compoundable offence[3] (where the court charges against the accused are dropped once the court records a compromise/settlement between the parties).
Section 497 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 offence of rape, is guilty of the offence 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 a case, the wife shall not be punishable as an abettor.”[4] It is evident that only the husband of the woman committing adultery is considered to be aggrieved, and he can file the complaint or, if the court permits, another person who was responsible for the woman in her husband’s absence at the time of the offence was committed may file a complaint on his behalf.
And not considering the nature of the sexual intercourse (presence of consent from both parties), it is only the man engaging in an adulterous relationship with a married woman to be charged with adultery. The adulterous woman, here, is not even regarded as aiding in the crime. Women are not subject to criminal prosecution.
From a plain reading of Section 497[5], which states that there is no crime when the man’s (her husband’s) connivance or assent is present, it is evident that women are viewed as submissive to men. It treats her like a piece of property. It treats women as if they were a piece of property owned by men, completely obedient to their commands. It is an illustration of the social dominance of men that was prevalent at the time the penal provision was enacted[6].
The Landmark Judgement that Decriminalised Section 497
In the year 2018, the offence of adultery was decriminalised, and section 497[7] was struck down from the Indian Penal Code. The landmark case that led to this decision is Joseph Shine v. Union of India[8]. The petitioner had contended that the adultery laws need to be gender neutral as section 497[9] is gender-biased, and the most inglorious aspect is that the Law reduces women to nothing more than an object because it does not mention the consent of the women. However, this was not the first case when the question of adultery being against the provision of the Constitution was raised. It was Yusuf Aziz v. the State of Bombay[10] wherein section 497[11] was contested on the grounds that it contravened Articles 14[12] and 15[13] of the Constitution, which deal with Fundamental Rights. The petitioners argued that Section 497[14] of the IPC was unfair to men because it did not punish women who were involved in adulterous relationships. However, as per Article 15(3)[15] of the Indian Constitution, the Court determined that Section 497[16] of the IPC is constitutionally legitimate. The reasoning that the court put forward was that in most circumstances, the woman is the victim of adultery and cannot thus be the culprit, which was the justification for the introduction of the Law. The absurdity of the situation was that, despite the court’s recognition of women as victims of adultery, it denied them the ability to lodge a complaint.
The Joseph Shine Judgement
“Section 497 codified rule of patriarchy.”- Justice DY Chandrachud
The five-judge bench (of the Supreme Court) in the case of Joseph Shine held that the Law was archaic and violated the rights granted under the Constitution, and therefore, it should be struck down from the code. While asserting their opinions, Justice Misra and Justice Khanwilkar made observations regarding the nature of the Law on adultery. They said that this (adultery) is more of a ‘command’ for the spouses to remain loyal to each other throughout their marital life. The court noted that the Law on adultery violates fundamental rights under Articles 14[17], 15[18] and 21[19]. “Women must be treated with equality with men. Any discrimination shall invite the wrath of the Constitution. A woman can’t be asked to think the way society desires,” said CJI Misra and Justice Khanwilkar.
As stated earlier, the provisions clearly mention the punishment for the offence of the man who engages in sexual intercourse with someone’s wife but does not prescribe the penalty for the woman who participates in the activity with her consent. It is a violation of Article 15(1)[20], which prohibits the State from discriminating on grounds only of sex. It is, therefore, violating the right to equality for men and women; it is a gender-biased law. Another observation was that it treats women as mere objects. The bench held that section 497[21] is based on the ‘doctrine of coverture’, and is not recognised by the Constitution. It states that a woman loses her legal rights and identity after getting married, which is violative of a woman’s fundamental rights. Lastly, the court noted that even though the offence in itself is being struck down for the criminal law code but it will remain to be a ground for divorce.
Reasons for the Decimalization
“Husband is not the master…Obituaries should be written of this historical perception.”-
Chief Justice Dipak Misra.
Section 497[22] is in violation of Articles 14[23] and 15(1)[24]: The section is blatantly violative of the right to equality as the woman could not be prosecuted for the offence of adultery, and neither could the woman prosecute her husband if he engaged in sexual intercourse with a single woman. It serves an unequal treatment of men and women. Additionally, no crime may be shown if the spouse of an adulterous woman gave his “consent or connivance.” The clause is plainly arbitrary and violates Article 14[25] since it lacks an adequate determining principle to criminalise consenting sexual behaviour.[26] Also, when considering Article 15[27] prohibits the State from discriminating between men and women on the basis of sex. The provision reads from the angle that a husband is entitled to file a complaint when his wife has sex with another man (against her husband’s will), but if a woman’s husband has sex with another woman, her wife is not the aggrieved party. From this perspective, the crime of adultery only disadvantages married women based on the sex between married men and married women.
Violating the right to live with dignity: One aspect of Article 21[28] is human dignity. By making odious differences based on gender preconceptions, Section 497[29] effectively reduces the fundamental dignity to which a woman is entitled, which damages women’s sense of self-worth. In addition, putting too much emphasis on the husband’s complicity or assent amounts to subordinating women. As a result, doing so violates Article 21[30]. Women had been reduced to an object, and what about their autonomy? By requiring the permission of her spouse in order to engage in sexual activity, Section 497[31] strips a woman of her sexual autonomy. By doing this, it upholds the idea that when a woman enters marriage, she gives up on her willingness to have some autonomy that has been restricted. The fundamental right to dignity and equality is violated when coerced female faithfulness is enforced by limiting sexual autonomy.
Analysis & Conclusion
This landmark judgment paved the way for the recognition of women’s rights. In my opinion, decriminalisation of adultery is a positive step toward a more progressive society since it eliminates the law that degraded women’s dignity and is authoritative. It was a deviancy that undermined the sacredness of the institution of marriage, which is thought to be a holy institution of society. It is also unethical and immoral. The decision makes it abundantly evident that by making the act illegal, the law had invaded a very private area of marriage life. Everyone is entitled to dignity and personal freedom under Article 21[32] of the Constitution, yet by making adultery a crime, individuals would be deprived of their dignity and privacy. As has been said by Justice Indu Malhotra that “adultery is a moral wrong, and not a public wrong which affected the lives of scores of others; it didn’t deserve to be classified as a criminal offence.” But given that many Indian laws—including those prohibiting marital rape and the restitution of conjugal rights—deny the rights such as the right to privacy and dignity under Article 21[33] of the Constitution, the court’s decision may raise several challenges. As a result, decriminalising section 497[34] of the Indian Penal Code, 1860 might have unintended consequences. It can be considered anything that imposes a justifiable constraint, indicating that there are reasonable restrictions on sexual autonomy.
Author(s) Name: Pretika Tiwari (Symbiosis Law School, Hyderabad)
References:
[1] The Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India)
[2] Cambridge Dictionary, ‘Adultery’ (Cambridge, 2022)
[3] Code of Criminal Procedure 1973, §32, No. 45, Acts of Parliament, 1860 (India)
[4] The Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India)
[5] Id.
[6] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
[7] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
[8] Id.
[9] Id.
[10]Yusuf Aziz v. State of Bombay, 1954 AIR 321.
[11] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
[12] INDIA CONST. art. 14.
[13] INDIA CONST. art. 15.
[14] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
[15] INDIA CONST. art. 15, § 3.
[16] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
[17] INDIA CONST. art. 14.
[18] INDIA CONST. art. 15.
[19] INDIA CONST. art. 21.
[20] INDIA CONST. art. 15, § 1.
[21] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
[22] Id.
[23] INDIA CONST. art. 14.
[24] INDIA CONST. art. 15, § 1.
[25] INDIA CONST. art. 14.
[26] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676
[27] INDIA CONST. art. 15.
[28] INDIA CONST. art. 21.
[29] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
[30] INDIA CONST. art. 21.
[31] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
[32] INDIA CONST. art. 21.
[33] Id.
[34] Indian Penal Code, 1860, § 497, No. 45, Acts of Parliament, 1860 (India).
