The Supreme Court on 12th September stuck down the penal provision of adultery enshrined under Section 497 of the Indian Penal Code. Supreme court while delivering its judgment through a constitutional bench comprising of Chief Justice Deepak Mishra, Justice Rohinton Nariman, Justice D Y Chandrachud, Justice A M Khanwilkar and Justice Indu Malhotra unanimously quashed the arbitrary, discriminatory, patriarchal and archaic penal provision of Adultery contained in Section 497 of the Indian Penal Code. Supreme court held that Section 497 is violative of the right to dignity of a woman by saying as it. With this judgment of the Supreme court, the long debate on this section.

Adultery as in 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 offense 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.

Further Section 198(2) of CrPC reads For the purposes of subsection (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offense was committed may, with the leave of the Court, make a complaint on his behalf.

Both the section is discriminatory and violates the fundamental right of the women in some way or the other. According to this definition, the wife is taken as the property of her husband.

The petition in the present case was filed by Joseph Shine, an NRI from Kerala. In the present petition, the petitioner challenged the constitutional validity of Section 497 of the Indian Penal Code on the ground that it is discriminatory and violated Article 14, 15 and 21.

It was January 2018 when the petition was referred to the constitutional bench of the Supreme Court. Center told the SC that the institution of marriage will destroy if adultery will be decriminalized.

The court said that the provision in the reflection of the dominance of men. Adultery is no crime if cuckolded husband consents to his wife’s extramarital affair. Section 497 treats the wife as husband’s “cattle”.

Justice Nariman said that sectionn497 made a husband the ‘licensor‘ of wife’s sexual choices. Further Justice Nariman said that section 497 is based on the chauvinistic reason that the third party male has seduced the wife and she is the victim.

Chief Justice reads in his judgment that Any provision of law affecting individual dignity and equality of women invites the wrath of the constitution. It’s time to say that a husband is not the master of the wife. Legal sovereignty of one sex over other sex is wrong. Further Chief Justice said that husband is not the master…..authorities should be written on these historical perceptions. Justice Deepak Mishra referred the section as  codified rule of patriarchy and also held that man is not the master of the wife.

Manu Smriti reads as yatr naryo pojyantey, ramantay tath devta (where the women is respected, God is pleased to reside in that household. Even though we are brought with such a rich culture, this provision of IPC which discriminates women and treated her as a cattle of her husband should obviously be stuck down.

The court also held Section 198(2) CrPC which give the husband the exclusive right to sue.

Justice Indu Malhotra held that” Section 497 is based on the doctrine of coverture and this doctrine is not recognized by the Indian Constitution. Further, she mentioned  that this section is institutionalized discrimination.

Court held that:                                                                                                  
(a) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.
(b) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offense of Adultery under Section 497.

The court concluded by saying ” Respect for sexual autonomy must be emphasized. Marriage does not preserve ceiling of autonomy 497 perpetrates subordinate nature of woman in a marriage.”

With the judgment the remedy available for adultery is divorce and if the spouse committed suicide because of adultery of the other spouse, he/she can be held liable for abetment to suicide.

Case Name: Joseph Shine (Petitioner) v. Union of India (Respondent).