We are in the 21st century and we have come a long way with lots of developments especially in the area of individualism. The humans have evolved from many conceptions which were considered moral as well as valid 50 years ago like Sati practice or coming to the recent issues, Triple Talaak, and the Sabarimala Case. One of such practices: the unfairness of adultery was knocked down. Adultery, according to the Dictionary, means ‘to Corrupt’. The irony observed is that the law is itself Adulterous i.e. corrupt in nature.
In this article, Section 497 of the Indian Penal Code,1860 read with 198(2) of Code of Criminal Procedure Code, 1974 (further referred as CrPC) is discussed. Initially history of Adultery and its interpretation in different religion is discussed. The next part details the ingredients for section 497 and 198(2). Following this is the summary in brief of each Hon’ble Judge in the bench present for the case, Joseph Shine v. Union of India[i] where the Supreme Court has acknowledged the law of adultery, which treats a husband as the master of his wife.
Adultery (from Latin ‘adulterium‘) is ‘extramarital sex’ that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept exists in many cultures. In Judaism, adultery is considered one of the most grievous sins. In Ancient Greece and Roman law, an offending female spouse could be killed, but men were not severely punished. In strict interpretations of Islamic law, men and women are equally liable to harsh punishments for adultery, including death by stoning as punishment still applied in the early 21st century in some countries, including Iran and Afghanistan. The Dharma sutras speak along the same lines. In the Apastamba Dharma Sutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and woman. But it’s interesting to know that the very kings and rulers of that time believed in two or more marriages and the women also accepted this practice at that time.
Interpretation of Adultery by the Indian Constitution is interesting. Section 497 is a pre-constitutional law that was enacted in 1860. Then, women had no rights independent of their husbands and were treated as chattel or “property” of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft” of his property, for which he could proceed to prosecute the offender.
The Adultery law was first challenged in 1951 in the case of Yusuf Aziz v. State of Bombay[ii]. The petitioner challenged the law submitting that this law infringes the Fundamental Rights under Article 14 & 15. The court said that 15 (3) holds power with the State to make special provisions for women and Adultery came under this sub-section. Further, when it was argued that this provision was confined to provisions beneficial to women and not using it against women, the court restricted itself stating that the two articles read together validate the impugned clause in section 497 of the IPC.
The other case[iii] came in the year 1985 which critically discussed the issue and even made three main grounds that stated that Section 497 is discriminatory and is inclined towards male chauvinism. But the court held that these contentions do not have any ‘valid legal basis’ but only a strong emotive appeal. The court gave an irrational reason explaining that there are several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, and therefore did not go far enough.
The court held that the wife who was involved in a sexual intercourse is a mere victim and therefore, can not be held as a adulterer and so no objections can be held as to not allowing wife to prosecute the husband for adultery. The court decided that there was no infringement of Article 14 & 15 and the law has an inclusive definition which does not necesaarily interprets to discrimination. Further, the court held that it was the duty of the legislature to change the law indicating a narrow approach of the bench.
As mentioned before, Section 497 of the Indian Penal Code,1860 and Section 198 of the Code of Criminal Procedure, 1974 are discussed below:
This section comprises of the following two broad subsections.
The first sub-section includes the terms of ‘sexual intercourse’. There has to be sexual intercourse between a man and a wife, where the man knows that the woman is the wife of another man. The essential element to this is that sexual intercourse has to be with the consent of the woman and without the consent of that woman’s husband.
The second subsection includes punishment, imprisonment up to five years or fine, or both. The conflicting area under this section is that the wife shall not be punished in any such case. It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual.
This section gives the provision for the procedure and its terms which have to be followed when the case has to be filed under this section. This section limits the ambit to file a complaint about Adultery and only gives the right to the aggrieved party. The Supreme Court held that the offense of adultery or enticing a married woman no person other than the husband of the woman shall be deemed to be an aggrieved person[iv]. Further, it also mentions in its proviso that any other person who has taken care of the woman at the time of the offense can also file a complaint. This section has a limited scope as it is partial and restricted for the woman.
In December 2017, Joseph Shine filed a petition challenging the validity of Section 497. The three-judge bench, headed by the then-Chief Justice of India, Dipak Mishra, had referred the petition to a five-judge Constitution Bench, which comprised of Dipak Mishra, and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, admitting that the law seems to be archaic. Justice Dipak Mishra and Justice A.M. Khanwilkar gave a single judgement and the other three gave their separate judgments. This judgement was a spirited and dauntless one given by the Indian Judiciary.
The judgement had a logical explanation of violation of Article 14, Article 15 & Article 21 of the Constitution of India. This provision treats women as property and does not stand for the approach of equality of the women. The actual issue with the provision being that it does not consider the wife, whose husband was involved in sexual intercourse with another woman be the aggrieved person and does not give any remedy for committing this act against her husband which was highly discriminatory violating Article 14.
Article 15 has a special provision for women and their protection of opportunities and was made for the affirmative rights of women which should not be covered from any social obstacles and the dominant group of the society i.e. chivalry and patriarchy. Addressing Article 15 (3), it was held that this clause was made by the lawmakers to have positive discrimination for women and does not allow discrimination of any kind against women. It was said that if the women have been given the exception under this it forces us to interpret that they were seduced in a sexual relationship and therefore to protect them from such act of others.
Article 21 holds the’ right to personal life and liberty, and the judgment given by them saw it for women & their liberty. This resulted in the infringement of Article 21 as well. It was held in K.S Puttaswammy v. Union of India, that human dignity and liberty do include sexual autonomy and if the husband has control over her wife’s sexuality, it deprives her of her basic right. These interpretations imply that for a woman, marriage becomes a contract as she has to give away her sexuality.
Another important aspect in the judgement was decriminalization of the offense. It was held that this section deals with the institution of marriage and therefore this happens in the matrimonial household between the husband and the wife. Adultery can be the ground of civil wrong but any disputes which are developed between husband and wife cannot be a criminal offense. It is up to the couple to handle such situations. Any punishment reformative or deterrent cannot resolve the issue of an unsuccessful marriage. It was also kept in mind that this cannot be interpreted as a license to commit any wrong and the laws can interfere in a marriage on certain grounds. An example was given in the judgment, the Domestic Violence Act, 2005 was enacted by the parliament for any violence done to the wife even if that is an intervention in a matrimonial relationship.
It was analyzed that adultery indeed jeopardizes the sanctity of marriage and affects both the consenting adults as well as their children. But a criminal sanction can be justified where there is a public element and the victim is the whole community but not individual. Justice Malhotra also mentioned that the State should have a minimalist approach in criminal sanction and should consider the fact that civil remedy can also fulfill the purpose of the wrongful act.
The validity of previous judgments, Sowmithri Vishnu, V Revathi & W. Kalyani of Adultery were thereby overruled.
Theodore Roosevelt, the 26th president of America, said that the more we know about the past, the better we are prepared for the future. This approach has been applied by the judges while giving judgment in the case. The Hon’ble judges explained the reasons and the need that such a law was enacted by the lawmakers at that time. It can be observed that due to the interference of religion in the law while the law was evolving back lagged the development of the law and society.
The influence of religion had and still has a major impact on India. There were many irrelevant practices held in the name of religion. But many of them also treated the woman as the property of their husband. It was considered from the starting that if a girl is born to a house there has to be certain difficulties. The girl child has to get married and it was the duty of the father to marry her off with a large amount of dowry. And when she is married, she was sold to her husband as his property. And when the husband dies the wife has to die with him by burning her alive into her husband’s pyre. Ironically, the practice was performed by a Hindu Goddess who voluntarily did the act, but eventually, it was made a forced practice with time.
It was Lord William Bentinck who criminalized Sati as a practice through Bengal Sati Regulation 1829. Religion had its influence but it diminished with the British Rule. With time and fight for independence, many women came to light through their poetries and their movements like Sarojini Naidu, Umabai Kundapur, and Savitri Bai Phule who raised their voices for the education of women.
Montesquieu, who originated the historical school of Jurisprudence, through his studies proposed that whether a law is a good law or a bad law depends on the social, political, and environmental situations prevailing in the society and it has to change with the change and needs of the society. For instance, Manusmriti (the Laws of Manu) which provided the socio-legal framework of Hindu Society may appear to be non-egalitarian and undemocratic by modern standards because of the anti-women and anti-Shudras (the lower caste) perspectives. Therefore, a practice that was considered right and legal in a society shall not serve the purpose of a society after a while.
As a result, adultery which was considered a crime to prevent others to commit crimes is now an orthodox philosophy. The women are now more empowered and educated than before and to be considered as the property of someone, even their husband violates the basic fundamental rights which is even mentioned in the preamble of the constitution i.e. Equality and Liberty. This clears the philosophy that why Adultery, Section 497 of IPC should have been held unconstitutional.
In V. Revathi v. Union of India the court held that section 497 and 198(2) is a legislative package and this section is “largely procedural”. This was a participatory gap between the procedure when Adultery was committed making the wife fully disabled to prosecute her husband for having a relationship with another woman. The woman is affected on two grounds, first, that she is deprived of the right to prosecute the husband or the woman who destroyed her marriage as a whole, and if there are children out of marriage, the situation becomes worse. Second, giving the liberty to the husband of the woman who committed adultery to prosecute her husband, will again affect the wife of the husband who will be prosecuted and punished.
We need to observe that it is a ‘consensual sexual intercourse’, therefore, neither the woman nor the man was forced or was seduced into such act. The wrong is done by both, the man and the woman. Despite this, the punishment was awarded only to the man involved in the intercourse and not the woman, resulting in Discrimination.
In a democratic country like India, having the three pillars of the Government, it was the duty of the Independent Judiciary to amend the law for the betterment of the society. This unanimous judgment was well versed and every aspect was explained with logical reasoning. In the case, Section 497 of IPC and Section 198 (2) of CrPC were declared unconstitutional as they were violating Article 14, 15, and 21 of the Indian Constitution. The previous cases were addressed and overruled by this Bench. The new modern approach could be seen in the judgment and the judiciary was successful in implementing the change in the society which was very much required.
- Article on Religion & Adultery, Infidelity Recovery Institute,
- SCC Online
[i][i] Joseph Shine v. Union of India, (2018) SC 1676
[ii] Yusuf Aziz v. State of Bombay. (1954) AIR 317
[iii] Smt. Sowmithri Vishnu vs. Union of India, (1985) AIR 1618
[iv] V. Revathi v. Union of India (1988)2 SCC 72