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.