The bare act provision of Section 497 of Indian Penal Code is as follows-
Adultery- 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.
A five-judge bench of the apex court on 27th September,2018 unanimously declared a century old section i.e. section 497 as unconstitutional. The bench comprised of Chief Justice Dipak Misra, Justice R.F Nariman, Justice A.M Khanmilkar, Justice D.Y Chandrachud and Justice Indu Malhotra. In the landmark judgement, the Supreme court said that adultery cannot be considered as penal offence and be punishable under law but can be a valid ground for divorce. The section was violative of Article 14, Article 15 and Article 21 of the Indian Constitution. as article 14 guarantees equality to every citizen in India and article 15 states that there shall be no discrimination on religion, race, gender, caste or sex. The court observed the section in contravention to them as it views women as subordinates of men as it dealt with only men and women can neither be charged for adultery nor they could have been the complainant. This reflected that women’s consent played no role according to the provision. Adultery as an offence was also violating article 21 as its deprived individuals their dignity and privacy which are protected by the constitution.
The CJI said that equality is a governing principle and man is not the master of the wife as the section was manifestly arbitrary the way it dealt with women. Justice Chandrachud in his judgement stated that after marriage the woman does not pledge her sexual autonomy to her husband and the deprivation of choice of having sex with some other person cannot be curbed. Thus, each spouse does not mortgage their sexual autonomy in a marriage.
The Supreme Court’ verdict considers adultery offence as a relic of past and the said section 497 of IPC as destructive of women’s dignity and self-respect as it treated a wife as chattel of husband.
Along with section 497 of IPC, section 198 of Criminal Procedure Code,1973 dealing with prosecution of offences against marriage was declared unconstitutional. Therefore, the supreme court has further contributed in establishment of a society where the men and women share an equal status and the scrapping of laws like section 497 reduces the disparity between a husband and wife in a marriage.
By- Tanishka Grover
Student Reporter INBA