Adultery: Decriminalized by Supreme Court: Analysis of judgment of Joseph Shine Versus Union of India
Supreme Court by its judgment in the case of Joseph Shine Versus Union of India in Writ Petition (Criminal) No. 194 of 2017 decriminalized adultery.
Supreme Court held that section 497 of Indian Penal Code is violative of Articles 14, 15(1) and 21 of the Constitution being manifestly arbitrary, gender discriminatory, encroachment into women's identity, dignity, liberty, privacy, sexual autonomy and freedom to make an independent choice in matters of sexuality. It says that it is an anachronistic law with underlying stereotypes of masculine chauvinism and dominance by treating women as mere property of men devoid of independent sexual agency.
The Supreme Court held that there is a change in social, cultural, moral, economic and political values and perspectives with passage of time and in the wake of evolving notions of transformative constitutionalism and constitutional moralism, the provision criminalising adultery has lost its efficacy. There is a Global trend also in favour of treating adultery as a civil wrong and a ground of divorce. Considering this Section 497 IPC and Section 198 CrPC were struck down as unconstitutional.
The Supreme Court was hearing a writ petition filed under Article 32 of the constitution challenging the validity of Section 497 IPC. a three judges bench considered its earlier judgments passed in the cases of Yusuf Abdul Aziz, 1954 SCR 930, Sowmithri Vishnu, 1985 Supp SCC 137, V. Revathi, (1988) 2 SCC
72 and W. Kalyani, (2012) 1 SCC 358 and after appreciating the submissions struck down section 497 IPC.
The court held that Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the constitution.
Married man having sexual relationship with unmarried woman or widow with her consent or with married woman with her husband's consent or connivance.
The Supreme Court held that a married man having a sexual relationship with an unmarried woman or widow with her consent or with a married woman with her husband's consent or connivance does not constitute an offense of adultery. The adulteress is excluded from punishment as an abettor by treating her as a victim which shows the chauvinistic nature of the provision. But the wife of the adulterer is given no right to prosecute the husband. On one hand, it protects a woman on the other hand it does not protect the other woman. By criminalizing adultery ostensible object of preserving and protecting the sanctity of marriage cannot be achieved. Adultery as an offence does not distinguish between broken marriage and continuing marriage as it depends upon spouses to exonerate marital infidelity and continue to live together or to seek divorce and separation. The provision reflects male dominance and subjugation of women and husband's control over wife's sexuality. The provision is based on the hypothesis of the husband being owner of the wife's sexual agency, perpetuates patriarchal and paternalistic notions of wife as mere chattel or property of the husband, Therefore, the Supreme Court held that Section 497 is discriminatory, irrational, manifestly arbitrary, inconsistent with constitutional morality and fails to meet the essence of substantive equality in its application to marriage.
The Court also held that "the background in which the provision was enacted shows that in 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955. It is, therefore, not far to see 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 props or 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.