In a landmark judgement of Joseph Shine vs Union of India on 27 September, 2018 Hon’ble Apex Court declared Section 497 of Indian Penal Code as unconstitutional. Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution. Along with Section497, Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. has also been declared unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

While hearing the matter, the court had observed, “..that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted”.

Moving ahead the bench opined that the provision treats a married woman as a property of the husband and how Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. The provision has made it a restricted one as a consequence of which a man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of Section 497 IPC.

Proceeding further, the bench in detail dealt with the concept of, “person aggrieved” under Section 198 Cr.P.C. Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person.

Hon’ble Supreme Court in this regard held that the offence and the deeming definition of an aggrieved person is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a license on the husband to deal with the wife as he likes which is extremely excessive and disproportionate.

The provision not only does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action.

If the entire provision is critically dealt with, it can be seen that it protects a woman and on the other, it does not protect the other woman and therefore the rationale of the provision suffers from the absence of logicality of approach and thus violative Article 14 of the Constitution.

Proceeding further the bench dealt with how the provision is violative of Article 21 of the Constitution of India and in this regard opined that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same but Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamount to subordination of women and therefore the said provision is violative of Article 21 of the Constitution.

The judgement makes it amply clear that by criminalizing the act, the law was entering an extremely private sphere – that of matrimonial life. Adultery does not fit into the concept of a crime. If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.

In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inappropriate.

Conclusively the bench laid down that the ostensible object of Section 497 is not to protect and preserve the sanctity of marriage at all. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.

With this the Court overruled the judgements of W.Kalyani vs State Tr.Insp.Of Police & Anr. and Smt. Sowmithri Vishnu vs Union Of India & Anr. and thereby declaring Section 497, IPC as unconstitutional.

Judgement passed by: Supreme Court of India

Date of Judgement: 27.09.2018