BY ARUSHI SRALECH.
Recently the Supreme Court of India struck down a 150-year-old regressive law which made adultery a criminal offence. Under Section 497 of the Indian Penal Code, a man who knowingly gets sexually involved with the wife of another man, without the consent of husband, is liable to be punished with imprisonment of up to five years or fine. However, the wife did not have any such right if her husband cheated on her with another woman.
Section 497 violated Articles 14 and 15 of the Constitution of India. The Court held that the said section exempted women from culpability as per Article 15(3) of the Constitution, which reads that nothing in Article 15 shall prevent the State from making “special provisions” for women.
Brief History of the Law
The first known case concerning Section 497 was Yusuf Aziz v. The State of Bombay, wherein a petition was laid down before the court that the section governing adultery was in contravention of Articles 14 and 15 of the Constitution of India. The Court held that the said section exempted women from culpability as per Article 15(3) of the Constitution, which reads that nothing in Article 15 shall prevent the State from making special provisions for women.
Then in Sowmithri Vishnu v. Union of India, the Court further held that women could not be brought under the purview of this section as “it is commonly accepted that it is the man who is the seducer, and not the woman.” It was also propounded by this court that in cases of adultery, the author, by examining the previous decisions of the court, is indisposed in most justifications of the court as it only preserved the “property rights” of a man in and over the woman he was married to.
If a husband consented to his wife’s sexual relationship with another man, it would still amount to adultery. It only preserved the “property rights” of a man over the woman he was married to. This archaic law had no place in contemporary society.
There has been some debate over the decriminalization of adultery as people contended that scrapping Section 497 would destroy the sanctity of marriage. During the proceedings, the Additional Solicitor General P. S. Narasimha submitted that adultery is a public problem which causes harm to society and contains the elements of a criminal offence.
However, it was held that the arbitrary law did not preserve the sanctity of marriage but was based on a patriarchal understanding of marriage. If a man had an extramarital relationship with any other woman, the wife did not have the right to file a case against her husband or the other woman under Section 497. If a woman had an extra-marital relationship with any other man, the husband could file a criminal case against the man, while the woman herself was not made liable.
Adultery is an offence which hits at the very core of the institution of marriage and to preserve the sanctity of marriage is not the duty of one spouse rather both being presumed under this law. Its criminality was based on conventional morality and not on contemporary constitutional morality.
In August 2018, the Supreme Court commenced hearing in the PIL seeking decriminalization of the act of adultery and a five-judge bench of the court ruled that Section 497 of the Indian Penal Code violates women’s right to equality and treats them like the property of their husbands.
Position in Law
The Supreme Court eventually held that adultery can be a ground for civil proceedings including dissolution of marriage but cannot be a criminal offence. What is considered morally wrong should not necessarily be a legal wrong.