Section 497: A Tripartite Labyrinth

Joseph Shine v. Union of India, [Writ Petition (Criminal) No. 194 of 2017]

Hon’ble Justice Indu Malhotra

The issue is whether ‘adultery’ must be treated as a penal offence or a marital wrong. Adultery has the effect of not only jeopardizing the marriage between the two consenting adults, but also affects the growth and moral fibre of children. However, a wrong punishable with criminal sanctions must be a public wrong against society as a whole and not merely an act committed against an individual victim.

Hon’ble Justice R.F. Nariman

Almost all ancient religions/civilizations punished the sin of adultery. In one of the oldest, death by drowning was prescribed. In Roman law, it was not a crime against the wife, for a husband to have sex with a slave or an unmarried woman.

Coming to Section 497, it is clear that in order to constitute the offence of adultery, the following must be established: i) sexual intercourse between a married woman and a man who is not her husband; ii) the man who has sexual intercourse with the married woman must know or must have reason to believe that she is the wife of another man; iii) such sexual intercourse must take place with her consent, i.e., it must not amount to rape; and iv) sexual intercourse with the married woman must take place without the consent or connivance of her husband.

What is apparent on a cursory reading of these ingredients is that a married man, who has sexual intercourse with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery.

In 1860, when The Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce. A Hindu man could marry any number of women until 1955. It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental bases of this archaic law have since gone. Post 1955-1956, with the advent of The – Hindu Code, so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for divorce in Hindu Law.

Further, the real heart of this archaic law discloses itself when consent or connivance of the married woman’s husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the licensor, namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has seduced her, she being his victim. What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today’s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today‘s day and age, utterly irrational. On this basis alone, the law deserves to be struck down. That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in Shayara Bano v. Union of India, (2017) 9 SCC 1.

We, therefore, declare that Section 497 of The Indian Penal Code, 1860 and Section 198 of The Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of The Constitution of India and are, therefore, struck down as being invalid.

Hon’ble Chief Justice of India, Dipak Misra (CJI and Khanwilkar J)

Section 198, CrPC does not consider the wife of the adulterer as an aggrieved person. If the entire provision is scanned, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from being manifestly arbitrary.

Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that 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. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two.

We may also usefully note here that adultery as a crime is no more prevalent in People’s Republic of China, Japan, Australia, Brazil and many Western European countries. The diversity of culture in those countries can be judicially taken note of.

As we have held that Section 497, IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198, CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path.

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A fine observation. I ‘believe’ as I ‘know and feel’: several adulterous married men and women have celebrated the nod from Supreme Court. Jail time is not a sure intimidation. But criminal records have a profound impact on identity. Travel to foreign land and office space comfort is sure sacrificed by jail time. If something had to be changed in Section 497, it involved married women being considered an abettor. Nothing more, nothing less. I agree with you Ms. Swati Maliwal, that the decision has hit the sanctity of marriage. If you are in (apparent) love with a married woman do be afraid. Lust is lust. Its better to fight for (real) love than indulge in adulterous sex. The Supreme Court just reduced the importance of a Hindu marriage.