The Supreme Court on Thursday struck down Section 497 of the Indian Penal Code, which said that adultery is a criminal offence. The five-judge Constitution bench, headed by Chief Justice of India Dipak Misra, termed it as “archaic” and observed that it violated Article 14 of the Constitution, which provides equality before law.
Reading out the judgement for himself and Justice Khanwilkar, CJI Dipak Misra stated that adultery can be a ground for civil issues, including the dissolution of marriage, but it cannot be a criminal offence and called Section 497 of the IPC “manifestly arbitrary”. They said that it violates Article 14 of the Constitution.
“It's time to say husband is not the master,” he said.
He said that adultery in itself cannot be considered a crime, but if an aggrieved spouse takes their own life because of their partners’ adultery, it could be treated as abetment to suicide.
Concurring with the judgment CJI Dipak Misra and Justice Khanwilkar, Justice RF Nariman termed Section 497 as an archaic provision which is unconstitutional and struck it down.
Justice DY Chandrachud said that adultery is “a relic of the past” and that Section 497 is destructive of a woman's dignity and self-respect.
"A woman after marriage does not pledge her sexual autonomy to her husband and depriving her of choice to have consensual sex with anyone outside marriage cannot be curbed," Justice DY Chandrachud observed.
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. When the matter came up during the Section 377 hearing, the Centre filed its response. Joseph Shine’s petition challenged Section 497 IPC and Section 198 of CrPC, on the grounds that it is discriminatory against men.
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, and shall be punished with imprisonment.”
In simple words, 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.
Activists had cried foul, saying the law treated women as property with no agency of their own to speak of.
Experts also say that Section 497 is in contravention to Article 21 of the Constitution, which guarantees a right to life and liberty for all individuals. This includes the right to dignity, privacy and autonomy. In 2017, in a major verdict, the Supreme Court ruled that the right to privacy is a fundamental right.