Adultery no longer a criminal offence in India: 5 things the judgement said
The judgement observed that women weren’t the property of their husbands and questioned why a moral wrong was considered a criminal offence in India.
Jyotsna Raman
Thursday, September 27, 2018 - 16:57
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In a landmark judgement, the Supreme Court on Thursday ruled that adultery is not a criminal offence, thus striking down a century-old law which was introduced during the time of the British. Section 497 of the Indian Penal Code said that adultery is defined as a person having sex with a man’s wife without taking prior consent from the husband. The law only applies to men – women can neither be charged with adultery, nor can they be the complainant.
This meant that the wife’s consent played no role in the law. It didn’t look at women with agency of their own, but merely as the husband’s property, meant to do his bidding. It also meant that the man in the relationship could be persecuted by law, but the woman would be let off. On the other hand, if a husband has an affair, the wife cannot similarly prosecute him or the woman he cheated on her with.
In December 2017, Joseph Shine filed a petition challenging the section. A three-judge bench, headed by Chief Justice of India Dipak Misra, had referred the petition to a five-judge Constitution Bench, admitting that the law does seem to be archaic.
While hearing the matter previously, the court had observed that the law seemed to be based on certain “societal presumptions”.
In four separate but concurring judgements, the court struck down the law and declared that the husband cannot be the master of his wife. Here are five crucial points the judgement made:
1. Section 497 is arbitrary: Throughout the judgement, it was pointed out that the nature of Section 497 is arbitrary. For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his wife have an affair with someone else. Rather, the judgement points out, it serves to preserve the ‘proprietary rights’ a husband has over his wife. Moreover, the wife cannot file a complaint against her husband or his lover. There are no provisions to deal with a married man having an affair with an unmarried woman or a widow.
2. Women can’t be held captive by societal expectations: The second page of the judgement clearly states, “A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity.” In a society like India, the role and expectations of women are deeply rooted in society. So it’s revolutionary for the Supreme Court to observe that women cannot be forced to act as per society’s will. It is not nuanced enough to take into account what kind of marriage it was or why one partner cheated.
3. A husband does not own his wife: The judgement adds, “And, it is time to say that a husband is not the master. Equality is the governing parameter.” Activists had slammed Section 497, saying it was totally “male-friendly” and that as long as it existed, it perpetuated the idea the wife was the husband’s property.
4. It is against Article 14, 15 of Constitution: Article 14 guarantees equality to every citizen in India and Article 15 states that no one can be discriminated on the basis of religion, race, caste, sex, etc. The court observed that the very nature of Section 497 was in contravention to this as it saw women as subordinates of men, and hence went against the Constitution of India.
5. Why should adultery be a criminal offence?: The judgement makes it amply clear that by criminalising the act, the law was entering an extremely private sphere – that of matrimonial life. According to Article 21 of the Constitution, everyone is guaranteed dignity and personal liberty, but by making adultery a criminal offence, individuals would be deprived of dignity and privacy. “The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure,” Indu Malhotra wrote in her judgement, thus questioning why it is a criminal offence at all. She added that since adultery was 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.
What is adultery law? How IPC Section 497 is anti-women
The Adultery law has been criticised for treating women as property owned by men
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Prabhash K Dutta
New Delhi
September 19, 2018UPDATED: September 19, 2018 10:10 IST
Picture for representation
Picture for representation
HIGHLIGHTS
Chief Justice Dipak Misra has called the adultery law "anti-women"
Adultery law in India is defined by the Indian Penal Code Section 497
The law has been criticised for treating women as property owned by men
Adultery law in India is defined by the Indian Penal Code Section 497. The adultery law has come under the scanner of the judiciary several times in the past but the courts including the Supreme Court held Section 497 valid. But in the latest case, the Supreme Court bench headed by Chief Justice Dipak Misra called the adultery law "anti-women" while hearing a petition that challenged Section 497 for being anti-men and giving leverage to women.
The petition was filed by non-resident Keralite, Joseph Shine, who challenged the constitutionality of IPC Section 497 read with Section 198(2) of the Criminal Procedure Code (CrPc). The CrPc Section 182(2) deals with prosecution for offences against marriages.
IPC Section 497 states, "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."
The Supreme Court on August 2, said, "The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, wife can be subjected to someone else's desire. That's not Indian morality."
"Each partner of the marriage has equal responsibility. Why should the woman take more load than the man? That is the reason we call it archaic," the Supreme Court said.
The Supreme Court's observation followed an affidavit by the Centre, which said, "Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds."
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Section 497 also states that a man found guilty of adultery "shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."
In cases of adultery, the wife shall not be punishable as an abettor.
Similarly, an unmarried woman can not be prosecuted for adultery. The offence of adultery is, according to Section 497, committed by a man against a married man.
The adultery law has been criticised for treating women as property owned by men.
In the event of a man committing adultery by means of sexual intercourse with a married woman or an unmarried woman, this law does not confer any right on the man's wife o prosecute the adulterous husband or the woman with whom the husband has indulged in sexual intercourse with.
Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.
But the Union home ministry defended Section 497 by referring to a judgment passed in 1985 Sowmithri Vishnu vs Union of India case. Quoting from the Supreme Court judgment, the home ministry said, It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.
A three-judge Supreme Court bench headed by the then Chief Justice YV Chandrachud had upheld the constitutionality of Section 497 of the IPC.
The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery.
It states that even a single act of voluntary sexual act by either party to the marriage with any person other than his or her spouse constitutes a ground for divorce for the other spouse. But, Section 497 of the IPC doesn't recognise a woman as an aggrieved party in the case of adultery.
The judgement observed that women weren’t the property of their husbands and questioned why a moral wrong was considered a criminal offence in India.
Jyotsna Raman
Thursday, September 27, 2018 - 16:57
Share @Facebook Share @twitter Share @reddit
Image for representation only
In a landmark judgement, the Supreme Court on Thursday ruled that adultery is not a criminal offence, thus striking down a century-old law which was introduced during the time of the British. Section 497 of the Indian Penal Code said that adultery is defined as a person having sex with a man’s wife without taking prior consent from the husband. The law only applies to men – women can neither be charged with adultery, nor can they be the complainant.
This meant that the wife’s consent played no role in the law. It didn’t look at women with agency of their own, but merely as the husband’s property, meant to do his bidding. It also meant that the man in the relationship could be persecuted by law, but the woman would be let off. On the other hand, if a husband has an affair, the wife cannot similarly prosecute him or the woman he cheated on her with.
In December 2017, Joseph Shine filed a petition challenging the section. A three-judge bench, headed by Chief Justice of India Dipak Misra, had referred the petition to a five-judge Constitution Bench, admitting that the law does seem to be archaic.
While hearing the matter previously, the court had observed that the law seemed to be based on certain “societal presumptions”.
In four separate but concurring judgements, the court struck down the law and declared that the husband cannot be the master of his wife. Here are five crucial points the judgement made:
1. Section 497 is arbitrary: Throughout the judgement, it was pointed out that the nature of Section 497 is arbitrary. For one, it doesn’t preserve the ‘sanctity of marriage’, for a husband can give consent to let his wife have an affair with someone else. Rather, the judgement points out, it serves to preserve the ‘proprietary rights’ a husband has over his wife. Moreover, the wife cannot file a complaint against her husband or his lover. There are no provisions to deal with a married man having an affair with an unmarried woman or a widow.
2. Women can’t be held captive by societal expectations: The second page of the judgement clearly states, “A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity.” In a society like India, the role and expectations of women are deeply rooted in society. So it’s revolutionary for the Supreme Court to observe that women cannot be forced to act as per society’s will. It is not nuanced enough to take into account what kind of marriage it was or why one partner cheated.
3. A husband does not own his wife: The judgement adds, “And, it is time to say that a husband is not the master. Equality is the governing parameter.” Activists had slammed Section 497, saying it was totally “male-friendly” and that as long as it existed, it perpetuated the idea the wife was the husband’s property.
4. It is against Article 14, 15 of Constitution: Article 14 guarantees equality to every citizen in India and Article 15 states that no one can be discriminated on the basis of religion, race, caste, sex, etc. The court observed that the very nature of Section 497 was in contravention to this as it saw women as subordinates of men, and hence went against the Constitution of India.
5. Why should adultery be a criminal offence?: The judgement makes it amply clear that by criminalising the act, the law was entering an extremely private sphere – that of matrimonial life. According to Article 21 of the Constitution, everyone is guaranteed dignity and personal liberty, but by making adultery a criminal offence, individuals would be deprived of dignity and privacy. “The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure,” Indu Malhotra wrote in her judgement, thus questioning why it is a criminal offence at all. She added that since adultery was 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.
What is adultery law? How IPC Section 497 is anti-women
The Adultery law has been criticised for treating women as property owned by men
ADVERTISEMENT
Prabhash K Dutta
New Delhi
September 19, 2018UPDATED: September 19, 2018 10:10 IST
Picture for representation
Picture for representation
HIGHLIGHTS
Chief Justice Dipak Misra has called the adultery law "anti-women"
Adultery law in India is defined by the Indian Penal Code Section 497
The law has been criticised for treating women as property owned by men
Adultery law in India is defined by the Indian Penal Code Section 497. The adultery law has come under the scanner of the judiciary several times in the past but the courts including the Supreme Court held Section 497 valid. But in the latest case, the Supreme Court bench headed by Chief Justice Dipak Misra called the adultery law "anti-women" while hearing a petition that challenged Section 497 for being anti-men and giving leverage to women.
The petition was filed by non-resident Keralite, Joseph Shine, who challenged the constitutionality of IPC Section 497 read with Section 198(2) of the Criminal Procedure Code (CrPc). The CrPc Section 182(2) deals with prosecution for offences against marriages.
IPC Section 497 states, "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."
The Supreme Court on August 2, said, "The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, wife can be subjected to someone else's desire. That's not Indian morality."
"Each partner of the marriage has equal responsibility. Why should the woman take more load than the man? That is the reason we call it archaic," the Supreme Court said.
The Supreme Court's observation followed an affidavit by the Centre, which said, "Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds."
ADVERTISEMENT
Section 497 also states that a man found guilty of adultery "shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both."
In cases of adultery, the wife shall not be punishable as an abettor.
Similarly, an unmarried woman can not be prosecuted for adultery. The offence of adultery is, according to Section 497, committed by a man against a married man.
The adultery law has been criticised for treating women as property owned by men.
In the event of a man committing adultery by means of sexual intercourse with a married woman or an unmarried woman, this law does not confer any right on the man's wife o prosecute the adulterous husband or the woman with whom the husband has indulged in sexual intercourse with.
Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.
But the Union home ministry defended Section 497 by referring to a judgment passed in 1985 Sowmithri Vishnu vs Union of India case. Quoting from the Supreme Court judgment, the home ministry said, It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.
A three-judge Supreme Court bench headed by the then Chief Justice YV Chandrachud had upheld the constitutionality of Section 497 of the IPC.
The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery.
It states that even a single act of voluntary sexual act by either party to the marriage with any person other than his or her spouse constitutes a ground for divorce for the other spouse. But, Section 497 of the IPC doesn't recognise a woman as an aggrieved party in the case of adultery.
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