|Name of the Case||Yusuf Abdul Aziz v. The State of Bombay & Ors.|
|Equivalent Citation||AIR 1951 Bom 470, (1951) 53 BOMLR 736, ILR 1952 Bom 449|
|Court||Bombay High Court|
|Bench||Chief Justice M.C Chagla & Justice P.B Gajendragadkar|
|Petitioner||Yusuf Abdul Aziz|
|Respondent||The State of Bombay & Others|
“Adultery is the act of voluntary sexual intercourse between a married person and someone other than that person’s current spouse or partner”. However, The India Penal Code under Section 497 defines adultery as an offence when a male has sexual intercourse not amounting to the offence of rape; with a female who is & whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man. They also mention it under this Section that the wife shall not be punishable as an abettor & the offence being compoundable by the husband of that woman. Adultery is not limited to a situation where both the persons involved in sexual intercourse need to be married, as a married male may have sexual intercourse with an unmarried female or vice versa. The case of Yusuf Abdul Aziz v. The State of Bombay is related to the offence of adultery under Section 497 of the IPC as they alleged it to be biased in favour of the females as only males were punishable under this section.
Background of Adultery Law in India
The provision related to adultery is present in the Indian Penal Code from its inception. Marriage is considered a sacrament & an extra-marital affair or having sexual intercourse outside the bonds of marriage is still considered immoral. Adultery is considered a social stigma & to restrict this practice adultery was incorporated in the Indian Penal Code under Section 497. However, it did not cover under its ambit sexual intercourse with an unmarried female or a widow. It punished only the male offender & the women were not liable to be punished under this section. The law gave the option of compounding to the husband of the female who had sexual intercourse with a married man which gave the impression that wives are property of their husband.
The form in which it enacted the law was because of various reasons. Women were not equally treated in the Indian society & many-a-times they were forced into seclusion. Since they were married during their childhood, they were more prone to being lured into sexual intercourse by other men owing to their gullible state of mind. Owing to these reasons, women were not made liable for this offence as the authors of the code did not want to weigh down the already depressed scale against women by making women punishable for committing the offence of adultery.
Facts of the Case
- This case was the first instance in Independent India when the concept of adultery under the IPC was challenged before the judiciary.
- Yusuf Abdul Aziz, a foreigner was charged under Section 497 of the Indian Penal Code. They filed a complaint against him & the case was pending before the Presidency Magistrate when he applied under Article 228 of the Indian Constitution challenging the constitutionality validity of Section 497 in the High Court.
- He challenged the constitutional validity of Section 497 because it violated the fundamental right to equality guaranteed under the Indian constitution as it does not make women equally culpable in an adulterous relationship. He contended that Section 497 only punishes a man& the woman goes scot-free as it has provision for punishment for a male offender only & the wife is not punishable as an abettor is against the fundamental right to equality mentioned under Article 14 and also contended that the impugned section operates unequally between men & women which is discrimination based on the sex of a person which violates Article 15(1) of the Indian Constitution. Hence, he cannot be prosecuted under Section 497.
- Some contended by the respondents that since Yusuf Abdul Aziz is not an Indian citizen, he cannot avail the fundamental right embodied in Article 15(1).
- Whether Section 497 of the IPC violates Article 14 & 15 of the Indian Constitution & hence is ultra vires the constitution.
- Whether a Non-Indian Citizen can invoke the fundamental right mentioned under Article 15(1) of the Indian Constitution.
Section 497 of the IPC
“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.”
Article 14 of the Indian Constitution
“Equality before law-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 15 of the Indian Constitution
“Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth-
Clause 1-The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Clause 3- Nothing in this article shall prevent the State from making any special provision for women and children.”
The honourable Chief Justice M.C. Chagla gave the judgement wherein it was held by the Bombay High Court that “Section 497 does not contravene any of the fundamental rights laid down in the Constitution and therefore it is not bad or void under Article 13.”
The honourable Chief Justice observed that the offence defined under Section 497 was not intended to operate upon women at all so there is no question of the law operating unequally between men & women. Hence, he could not accept the contention related to the violation of violate Article 14.
He further observed that the fundamental right guaranteed under Article 15(1) can only be invoked by the Indian citizens as per the Constitution, however, he clarified that even a non-citizen may rely on any of the fundamental rights to bring it to the notice of the Court that a particular law being in violation of the fundamental rights is bad, inoperative and no penal consequence can follow, from the breach of such a law.
Regarding the question of violation of Article 15(1), it was observed that when Section 497 was enacted the position of women in our country was very pitiful & shocking. They were not treated equally men, so special legislation was required in order to protect them, and accordingly, Section 497 was enacted considering this viewpoint to provide women with a position in law which takes a sympathetic and charitable view of the weakness of women in this country.
The judges also highlighted the fact that even in the post-independence era the social position of women has not changed that much. Moreover, they also stated that the fact that the alleged discrimination in favour of women is saved by the provisions of Article 15(3) so, there is no contravention of Article 15(1). It was further observed that law-making is the legislature’s job & it is the legislature’s prerogative whether to amend the law considering the change in a situation of the women& social conditions or to do away with the law.
Developments in Adultery Law
- Yusuf Abdul Aziz later filed an appeal in the Supreme Court under Article 132 (1) of the Indian Constitution contesting the judgement of the Bombay High Court but the appeal was dismissed & it was observed by the honourable Supreme Court that Article 14 read with Article 15(3) validates Section 497 of the IPC. It was also stated that that woman could only be a victim of adultery and not a perpetrator of the crime under Section 497.
- In the case of Sowmithri Vishnu v Union of India, it was held by the Supreme Court that women need not be included in prosecution as an aggrieved party in the name of making the adultery law even handed& also explained the reasons as to why women should not be involved in prosecution in the cases of adultery. It was further observed that bringing an unmarried woman in the ambit of adultery law under Section 497 would mean “a crusade by a woman against another woman”. The Supreme Court also justified the existence of this law to preserve the sanctity of marriage.
- With V Revathy v Union of India, it was held by the Supreme court that the adultery law under IPC by restricting the ambit of Section 497 to men did not infringe upon any constitutional provisions. The honourable judges also justified the non-inclusion of women in prosecution to keep the sanctity of marriage intact.
- The 42nd Law Commission of India Report and the Malimath Committee Report of 2003 on Criminal Law Reforms recommended amendments to make Section 497 of the IPC gender-neutral.
- With Joseph Shine v Union of India, the 5-judge constitutional bench of the Supreme court declared Section 497 of the IPC as unconstitutional & struck down the related provisions. It was observed that the law was arbitrary, archaic & hence unconstitutional.
- The current implication of adultery under the Indian laws is that it is not a criminal offence but continues to be a ground for divorce as it amounts to mental cruelty.
It can be said that the case of Yusuf Abdul Aziz posed the right questions to the judiciary but at the wrong time in history. The judgement by the Bombay High Court was based on the application of law in the prevailing circumstances. The judiciary took a limited view & found the law related to adultery valid by applying the respective constitutional provisions. The judiciary did not take the liberty to make recommendations to the legislative organ of the central government to review this law.
It can be concluded that the adultery law when it was enacted might have been relevant but with changing times the law was neither socially apt nor does it stand to the principles of equality. The judgement in the case of Yusuf Abdul Aziz was incorrect as it failed to realise that equality is an inherent part of the Indian Constitution & discrimination allowed under Article 15(3) in favour of women is for the betterment of women & not a tool to justify discriminatory laws. The honourable judges also failed to realise &did not consider the fact that even if a provision is made for the benefit of women what was the reason for not making the right to prosecution available to the wife of the offender. However, now the judiciary has rectified its mistake by decriminalising adultery.
- The Indian Penal Code, 1860
- The Constitution of India
- Report of Justice V.S. Malimath Committee on Reforms of Criminal Justice System
- Law Commission Reports available at lawcommissionofindia.nic.in