Adultery 'archaic' and 'unconstitutional': Supreme Court

Adultery is no longer a crime in India, the Supreme Court ruled Thursday as it struck down the colonial-era law, dubbing it "archaic" and "unconstitutional" and saying it treated women as a "chattel" and denuded them of their "sexual autonomy".

In a path-breaking judgment, a five-judge constitution bench headed by Chief Justice Dipak Misra unanimously struck down section 497 of the Indian Penal Code (IPC) dealing with the offense of adultery and section 198 of the CrPC which deals with prosecution of offenses against marriage.

With this verdict, India joined a list of countries, including China, Japan, Brazil, Australia, Germany, and France, which have done away with the penal provision criminalizing adultery.

The CJI, who wrote the lead judge for himself and on behalf of Justice A M Khanwilkar, held that "a husband is not the master" and any system treating a woman with indignity, inequity and inequality or discrimination "invites the wrath of the Constitution".

The other three members of the bench -- Justices Rohinton F Nariman, D Y Chandrachud and Indu Malhotra -- concurred with the view that adultery should not be treated as an offense, termed it as manifestly arbitrary, retrograde and cannot be allowed to continue.

Justice Nariman, while holding that section 497 was "utterly irrational" and archaic as it demeaned the status of women, made it clear that the penal provision discriminated against women only on grounds of sex and violated their right to equality.

Section 497 of the 158-year-old law, which was punishable by a maximum five years in jail or fine or both, says: "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 offense of rape, is guilty of the offense of adultery."

Similarly, Justice Chandrachud held that the provision was "destructive" and deprived women of their "autonomy, dignity and privacy."

He also said that sexuality, which was a definitive expression of the identity of a woman, was part of her "inviolable core" and neither the state nor the institution of marriage could disparage it.

Justice Malhotra, the lone woman judge in the bench, held that any law which discriminated between persons on the basis of sex alone and deprived women of the right to prosecute was not gender-neutral and liable to be struck down.

The four separate concurring judgments, running into 243-page, said that equality of women and their dignity cannot be curtailed, but section 497 of the IPC effectively does so by "creating invidious (unfair) distinctions" based on gender stereotypes "which creates a dent in the individual dignity of women".

"A woman cannot be asked to think as a man or as for how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries are written," the CJI said.

He said while there was no doubt that adultery can be a ground for civil action, including dissolution of marriage, but treating it as a crime would amount to "state entering into a real private realm" of the matrimonial sphere and therefore, it should be left as a ground for divorce.

Adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage, the CJI said.

Justice Chandrachud held that to "shackle" the sexual freedom of a woman and allow criminalization of consensual relationships was a denial of the right of sexual privacy and considering a citizen as a property of another was an "anathema" to the ideal of dignity.

He said the true purpose of section 497 was to ensure husband's control over the sexuality of his wife and "manifest arbitrariness" was writ large on the provision as it was founded on a notion that a woman, by entering into marriage, loses her voice, autonomy, and agency.

"Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse," he said.

Justice Nariman rejected the contention of the Centre that the object of Section 497 was to protect and preserve the sanctity of marriage.

"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 offense is not committed, thereby showing that it is not the sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband," he said.

Justice Malhotra said the state must follow the minimalist approach in the criminalization of offenses, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

"The time when wives were invisible to the law and lived in the shadows of their husbands has long since gone by. A legislation that perpetuates such stereotypes in relationships and institutionalizes discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution," she held.