Supreme Court declares adultery law unconstitutional

The Supreme Court on Thursday struck down Section 497 of IPC, saying the penal provision violated the right to dignity, choice and sexual autonomy of married women.

A five-judge bench presided over by Chief Justice Dipak Misra unanimously quashed the penal provision enjoining five jail term for a man for indulging in sexual relationship with somebody's wife.

Section 497 of the Indian Penal Code, introduced in 1860 during the British Raj, defines adultery and the punishments for it:

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 case the wife shall not be punishable as an abettor.

The top court termed it unconstitutional, manifestly arbitrary and violative of fundamental rights to liberty, dignity and equality.

The complaint in such cases can only be filed by the husband of a woman concerned.

"It is as unconstitutional for treating women as chattel and husbands as their master," the CJI said.

He said sexual autonomy for women must be recognised.

"Individual dignity, particularly of women, has got sanctity. Any system treating otherwise invites the wrath of the Constitution. A woman cannot be desired to think as a property of her husband. It is now the time to say the husband is not her master," the judgement authored by CJI on behalf of himself and Justice A M Khanwilkar said.

Justice D Y Chandrachud, a part of the 5-judge bench said that adultery provision deprived a woman of her sexual autonomy. It is based on gender bias and stereotypes and it gives unequal voice to partners in marriage.

Justice Chandrachud said Section 497 of IPC treated women as unequal participants in a marriage.

It is based on the presumption that a woman contracts her choice away after marriage. It is based on patriarchy. It is offensive to liberty and dignity, he said.

The CJI, in his judgement, said, "beauty of Indian Constitution is I, You and We. Judicial expression can enhance its beauty."

He said adultery as such a behaviour, however, would remain a ground for offences for cruelty and abetment to suicide.

The CJI said law experiments so it is changed. Adultery should not be a criminal offence. He also said in various other countries like China, Japan and Brazil, it is not a crime.

Justice R F Nariman said: "we will not wait for the legislature, we strike it down. It is absolutely a matter of privacy. The punishment meted out to either of parties can't be allowed", he said, adding the penal provision is violative of 14 (equality) and 15(1) (no discrimination on grounds of sex) of the Constitution.

Justice Indu Malhotra in her judgement said there is no justification for the continuation of Sec 497 of IPC brought in 1860 in the statute book.

A PIL was filed by Joseph Shine, represented by advocate Kaleeswaram Raj, contending that it was manifestly arbitrary and violated the constitutional provisions.

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