{"id":9924,"date":"2018-09-27T14:56:44","date_gmt":"2018-09-27T09:26:44","guid":{"rendered":"http:\/\/mynation.net\/docs\/?p=9924"},"modified":"2021-09-21T15:22:28","modified_gmt":"2021-09-21T09:52:28","slug":"194-2017-2","status":"publish","type":"post","link":"https:\/\/mynation.net\/docs\/194-2017-2\/","title":{"rendered":"Section 497 offence of Adultery unconstitutional"},"content":{"rendered":"

IN THE SUPREME COURT OF INDIA<\/strong>
\nCRIMINAL ORIGINAL JURISDICTION
\nWRIT PETITION (CRIMINAL) NO. 194 OF 2017<\/p>\n

Joseph Shine \u2026Petitioner(s)
\nVERSUS
\nUnion of India \u2026Respondent(s)<\/p>\n

J U D G M E N T<\/p>\n

Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.)<\/p>\n

The beauty of the Indian Constitution is that it includes =I\u2018 =you\u2018 and =we\u2018. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution.<\/p>\n

Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as 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 be written. It is advisable to remember what John Stuart Mill had observed:-<\/p>\n

The legal subordination of one sex to another \u2013 is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.1 We are commencing with the aforesaid prefatory note as we are adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).<\/p>\n

2. At this juncture, it is necessary to state that though there is necessity of certainty of law, yet with the societal changes and more so, when the rights are expanded by the Court in respect of certain aspects having regard to the reflective perception of the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that the concept of certainty of law should be allowed to prevail and govern. The progression in law and the perceptual shift compels the present to have a penetrating look to the past.<\/p>\n

3. When we say so, we may not be understood that precedents are not to be treated as such and that in the excuse of perceptual shift, the binding nature of precedent should not be allowed to retain its status or allowed to be diluted. When a constitutional court faces such a challenge, namely, to be detained by a precedent or to grow out of the same because of the normative changes that have occurred in the other arenas of law and the obtaining precedent does not cohesively fit into the same, the concept of cohesive adjustment has to be in accord with the growing legal interpretation and the analysis has to be different, more so, where the emerging concept recognises a particular right to be planted in the compartment of a fundamental right, such as Articles 14 and 21 of the Constitution. In such a backdrop, when the constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the provision in the context of developed and progressive interpretation. A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts. To explicate, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the Court cannot conceive of women still being treated as a property of men, and secondly, where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable.<\/p>\n

4. We may presently state the nature of the lis.<\/p>\n

5. The instant writ petition has been filed under Article 32 of the Constitution of India challenging the validity of Section 497 IPC. A three-Judge Bench, on the first occasion, taking note of the authorities in Yusuf Abdul Aziz v. State of Bombay2, Sowmithri Vishnu v. Union of India and another3, V. Revathi v. Union of India and others4 and W. Kalyani v. State through Inspector of Police and another5 and appreciating the submissions advanced by the learned counsel for the petitioner, felt the necessity to have a re-look at the constitutionality of the provision. At that juncture, the Court noted that:-<\/p>\n

\u201cPrima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice. That is how the matter has been placed before us.<\/p>\n

6. At this stage, one aspect needs to be noted. At the time of initial hearing before the three-Judge Bench, the decision in Yusuf Abdul Aziz (supra) was cited and the cited Law Report reflected that the judgment was delivered by four learned Judges and later on, it was noticed, as is reflectible from the Supreme Court Reports, that the decision was rendered by a Constitution Bench comprising of five Judges of this Court.<\/p>\n

7. The said factual discovery will not detain us any further. In Yusuf Abdul Aziz (supra), the Court was dealing with the controversy that had travelled to this Court while dealing with a different fact situation. In the said case, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitution of India. In the said case, the appellant was being prosecuted for adultery under Section 497 IPC. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional question under Article 228 of the Constitution. The Constitution Bench referring to Section 497 held thus:-<\/p>\n

3. Under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor. The last sentence in Section 497 prohibits this. It runs\u2014<\/p>\n

In such case the wife shall not be punishable as an abettor. It is said that this offends Articles 14 and 15. The portion of Article 15 on which the appellant relies is this: The State shall not discriminate against any citizen on grounds only of … sex. But what he overlooks is that that is subject to clause (3) which runs\u2014 Nothing in this article shall prevent the State from making any special provision for women ….<\/p>\n

The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3).<\/p>\n

4. It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.<\/p>\n

5. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.<\/p>\n

6. The appellant is not a citizen of India. It was argued that he could not invoke Articles 14 and 15 for that reason. The High Court held otherwise. It is not necessary for us to decide this question in view of our decision on the other issue.<\/p>\n

On a reading of the aforesaid passages, it is manifest that the Court treated the provision to be a special provision made for women and, therefore, saved by clause (3) of Article 15. Thus, the Court proceeded on the foundation of affirmative action.<\/p>\n

8. In this context, we may refer to the observation made by the Constitution Bench in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another6 while making a reference to a larger Bench. The said order reads thus:-<\/p>\n

12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:<\/p>\n

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.<\/p>\n

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.<\/p>\n

(3)The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh7 and Hansoli Devi.<\/p>\n

In the light of the aforesaid order, it was necessary to list the matter before a Constitution Bench consisting of five Judges. As noted earlier, considering the manner in which we intend to deal with the matter, it is not necessary to refer to a larger Bench.<\/p>\n

9. Sections 497 and 498 of IPC read thus:- Section 497 : Adultery<\/p>\n

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 offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.<\/p>\n

Section 498 : Enticing or taking away or detaining with criminal intent a married woman Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.<\/p>\n

10. Section 198 of CrPC provides for prosecution for offences against marriage. Section 198 is reproduced below:- 198. Prosecution for offences against marriage.\u2014(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that-<\/p>\n

(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;<\/p>\n

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf;<\/p>\n

(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860 ) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’ s or mother’ s brother or sister 2, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.<\/p>\n

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.<\/p>\n

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.<\/p>\n

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.<\/p>\n

(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.<\/p>\n

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under 3 [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.<\/p>\n

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.<\/p>\n

11. On a perusal of the aforesaid provision, it is clear that the husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The rest of the proviso carves out an exception as to who is entitled to file a complaint when the husband is absent. It may be noted that the offence is non-cognizable. 12. The three-Judge Bench, while referring the matter, had briefly dwelled upon the impact of the provision. To appreciate the constitutional validity, first, we shall deal with the earlier pronouncements and the principles enunciated therein and how we can have a different perspective of such provisions. We have already referred to what has been stated in Yusuf Abdul Aziz (supra).<\/p>\n

13. In Sowmithri Vishnu (supra), a petition preferred under Article 32 of the Constitution challenged the validity of Section 497 IPC. We do not intend to advert to the factual matrix. It was contended before the three-Judge Bench that Section 497 confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; that Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and that Section 497 does not take in cases where the husband has sexual relations with an unmarried woman with the result that husbands have a free licence under the law to have extramarital relationships with unmarried women. That apart, the submission was advanced that Section 497 is a flagrant instance of =gender discrimination\u2018, =legislative despotism\u2018 and =male chauvinism\u2018. At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of romantic paternalism which stems from the assumption that women, like chattels, are the property of men.<\/p>\n

14. The Court referred to the submissions and held thus:-<\/p>\n

\u2026..The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. For example, an argument could be advanced as to why the offence of robbery should be punishable with imprisonment for ten years under Section 392 of the Penal Code but the offence of adultery should be punishable with a sentence of five years only: Breaking a matrimonial home is no less serious a crime than breaking open a house. Such arguments go to the policy of the law, not to its constitutionality, unless, while implementing the policy, any provision of the Constitution is infringed. We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to take note of the transformation which the society has undergone\u2026.<\/p>\n

Proceeding further, the three-Judge Bench held that the offence of adultery as defined in that Section can only be committed by a man, not by a woman. Indeed, the Section expressly provides that the wife shall not be punishable even as an abettor. No grievance can then be made that the Section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, the same point is reverted to; who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.<\/p>\n

15. The Court further held:-<\/p>\n

\u2026..Since Section 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is said to be bad. Counsel is right that Section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. We have no doubt that if the wife makes an application in the trial court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the court. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the court. In fact, instances are not unknown in criminal law where, though the prosecution is in the charge of the Public Prosecutor, the private complainant is given permission to oversee the proceedings. One step more, and the wife could be allowed a hearing before an adverse finding is recorded that, as alleged by her husband, the accused had committed adultery with her. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in Section 497 cannot render that section unconstitutional as violating Article 21.<\/p>\n

After so stating, the Court placed reliance on Yusuf Abdul Aziz (supra) and held that the same does not offend Articles 14 and 15 of the Constitution and opined that the stability of marriages is not an ideal to be scorned. Being of this view, the Court dismissed the petition.<\/p>\n

16. In V. Revathi v. Union of India and others9, the Court analysed the design of the provision and ruled:- \u2026..Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband\u2026..<\/p>\n

It placed heavy reliance on the three-Judge Bench in Sowmithri Vishnu (supra) and proceeded to state that the community punishes the =outsider\u2018 who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring =man\u2018 alone can be punished and not the erring woman. It further went on to say that it does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished, a rider has been added that if the outsider is a woman, she is not punished. There is, thus, reverse discrimination in favour of the woman rather than against her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus, there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate analysis, the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus, no discrimination has been practised in circumscribing the scope of Section 198(2) CrPC and fashioning it in such a manner that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer. Expressing this view, the Court held that the provision is not vulnerable to the charge of hostile discrimination.<\/p>\n

17. In W. Kalyani v. State Thro\u2019 Inspector of Police and another10, the Court held:-<\/p>\n

10. The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.<\/p>\n

Be it noted, the issue of constitutional validity did not arise in the said case.<\/p>\n

18. At this juncture, we think it seemly to state that we are only going to deal with the constitutional validity of Section 497 IPC and Section 198 CrPC. The learned counsel for the petitioner submits that the provision by its very nature is arbitrary and invites the frown of Article 14 of the Constitution. In Shayara Bano v. Union of India and others11, the majority speaking through Nariman, J., ruled thus :-<\/p>\n

60. Hard as we tried, it is difficult to discover any ratio in this judgment, as one part of the judgment contradicts another part. If one particular statutory enactment is already under challenge, there is no reason why other similar enactments which were also challenged should not have been disposed of by this Court. Quite apart from the above, it is a little difficult to appreciate such declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution 346 Bench decisions cannot possibly be said to be good law.<\/p>\n

61. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India.<\/p>\n

62. Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the discrimination aspect of Article 14, and evolved a rule by which subjects could be classified. If 347 the<\/p>\n

classification was intelligible having regard to the object sought to be achieved, it would pass muster under Article 14\u2018s antidiscrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab, (1963) 2 SCR 353 at 395, warned that:<\/p>\n

50……Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content.<\/p>\n

He referred to the doctrine of classification as a subsidiary rule evolved by courts to give practical content to the said Article. 63. In the pre-1974 era, the judgments of this Court did refer to the rule of law or positive aspect of Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703, this Court held:<\/p>\n

In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, 348 discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey \u2014 Law of the Constitution \u2014 10th Edn., Introduction cx). Law has reached its finest moments, stated Douglas, J. in United States v. Wunderlick [342 US 98],<\/p>\n

9…..when it has freed man from the unlimited discretion of some ruler\u2026. Where discretion, is absolute, man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes [(1770) 4 Burr. 2528 at 2539], …..means sound discretion guided by law. It must be governed by rule, not by humour : it must not be arbitrary, vague, and fanciful…….<\/p>\n

This was in the context of service rules being seniority rules, which applied to the Income Tax Department, being held to be violative of Article 14 of the Constitution of India.<\/p>\n

19. Thereafter, our learned brother referred to the authorities in State of Mysore v. S.R. Jayaram12, Indira Nehru Gandhi v. Raj Narain13, E.P. Royappa v. State of Tamil Nadu14, Maneka Gandhi v. Union of India15, A.L. Kalra v. Project and Equipment Corporation of India Ltd.16 , Ajay Hasia v. Khalid Mujib Sehravardi , K.R. Lakshmanan v. State of T.N. and two other Constitution Bench judgments in Mithu v. State of Punjab19 and Sunil Batra v. Delhi Administration20 and, eventually, came to hold thus:-<\/p>\n

It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be arbitrary.<\/p>\n

And again:- …..The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and\/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.<\/p>\n

20. We respectfully concur with the said view.<\/p>\n

21. In Yusuf Abdul Aziz (supra), the Court understood the protection of women as not discriminatory but as being an affirmative provision under clause (3) of Article 15 of the Constitution. We intend to take the path of expanded horizon as gender justice has been expanded by this Court.<\/p>\n

22. We may now proceed to test the provision on the touchstone of the aforesaid principles. On a reading of the provision, it is demonstrable 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.<\/p>\n

23. As we notice, the provision treats a married woman as a property of the husband. It is interesting to note that Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. The dictionary meaning of adultery is that a married person commits adultery if he has sex with a woman with whom he has not entered into wedlock. As per Black\u2018s Law Dictionary, =adultery\u2018 is the voluntary sexual intercourse of a married person with a person other than the offender\u2018s husband or wife. However, 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. Section 198 CrPC deals with a person aggrieved. Sub-section<\/p>\n

(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. The offence and the deeming definition of an aggrieved person, as we find, 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 licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. We are constrained to think so, as it 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. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, 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 the vice of Article 14 of the Constitution being manifestly arbitrary.<\/p>\n

24. Presently, we shall address the issue against the backdrop of Article 21 of the Constitution. For the said purpose, it is necessary to devote some space with regard to the dignity of women and the concept of gender equality. 25. In Arun Kumar Agrawal and another v. National Insurance Company Limited and others21, the issue related to the criteria for determination of compensation payable to the dependents of a woman who died in road accident. She did not have a regular income. Singhvi, J. rejected the stand relating to determination of compensation by comparing a house wife to that of a house keeper or a servant or an employee who works for a fixed period. The learned Judge thought it unjust, unfair and inappropriate. In that context, the learned Judge stated:-<\/p>\n

26. In India the courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife\/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer\u2018s work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife\/mother who renders selfless service to her husband and children.<\/p>\n

26. Ganguly, J., in his concurring opinion, referred to the Australian Family Property Law and opined that the said law had adopted a very gender sensitive approach. The learned Judge reproduced:-<\/p>\n

the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent.<\/p>\n

27. In State of Madhya Pradesh v. Madanlal22, the Court held:-<\/p>\n

Dignity of a woman is a part of her nonperishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.<\/p>\n

28. In Pawan Kumar v. State of Himachal Pradesh23, the Court, dealing with the concept of equality and dignity of a woman, observed:-<\/p>\n

47 \u2026in a civilized society eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart it creates an incurable dent in the right of a woman which she has under Article 15 of the Constitution. One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject.<\/p>\n

48. In a civilized society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescendation. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. Egoism must succumb to law. Equality has to be regarded as the summum bonum of the constitutional principle in this context.<\/p>\n

29. Lord Keith in R v. R24 declared:- marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.<\/p>\n

30. Lord Denning25 states:- A wife is no longer her husband\u2018s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern.<\/p>\n

31. In Shamima Farooqui v. Shahid Khan26, the Court ruled:- Chivalry, a perverse sense of human egotism, and clutching of feudal megalomaniac ideas or for that matter, any kind of condescending attitude have no room. They are bound to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority.<\/p>\n

And again:-<\/p>\n

Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger – an outsider. That is the truth in essentiality.<\/p>\n

32. In Voluntary Health Association of Punjab v. Union of India27, one of us (Dipak Misra, J.), in his concurring opinion, stated that women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership. The issue related to female foeticide and it was stated thus:-<\/p>\n

21. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it. Henrik Ibsen emphasised on the individualism of woman. John Milton treated her to be the best of all God\u2018s work. In this context, it will be appropriate to quote a few lines from Democracy in America by Alexis de Tocqueville: If I were asked \u2026 to what the singular prosperity and growing strength of that people [Americans] ought mainly to be attributed, I should reply: To the superiority of their women.<\/p>\n

22. At this stage, I may with profit reproduce two paragraphs from Ajit Savant Majagvai v. State of Karnataka28: (SCC pp. 113-14, paras 3 & 4)<\/p>\n

3. Social thinkers, philosophers, dramatists, poets and writers have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked =I am glad that I am not a man; for then I should have to marry a woman\u2018, there was wit in it. When Shakespeare wrote, =Age cannot wither her; nor custom stale, her infinite variety\u2018, there again was wit. Notwithstanding that these writers have cried hoarse for respect for =woman\u2018, notwithstanding that Schiller said =Honour women! They entwine and weave heavenly roses in our earthly life\u2018 and notwithstanding that the Mahabharata mentioned her as the source of salvation, crime against =woman\u2018 continues to rise and has, today undoubtedly, risen to alarming proportions.<\/p>\n

4. It is unfortunate that in an age where people are described as civilised, crime against \u201efemale is committed even when the child is in the womb as the \u201efemale foetus is often destroyed to prevent the birth of a female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.<\/p>\n

[Emphasis supplied]<\/p>\n

And again:-<\/p>\n

23. In Madhu Kishwar v. State of Bihar29 this Court had stated that Indian women have suffered and are suffering discrimination in silence.<\/p>\n

28. \u2026 Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. (SCC p. 148, para 28)<\/p>\n

24. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility: Dowry is an intractable disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death.<\/p>\n

25. Long back, Charles Fourier had stated: The extension of women\u2018s rights is the basic principle of all social progress. 26. Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court in Nikku Ram case4 had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows:<\/p>\n

Yatra tastu na pujyante sarvastatraphalah kriyah A free translation of the aforesaid is reproduced below:<\/p>\n

All the actions become unproductive in a place, where they are not treated with proper respect and dignity.<\/p>\n

27. Another wise man of the past had his own way of putting it: Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaih A free translation of the aforesaid is as follows:<\/p>\n

The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour.<\/p>\n

28. Yet again, the sagacity got reflected in following lines:<\/p>\n

Atulam yatra tattejah sarvadevasarirajam Ekastham tadabhunnari vyaptalokatrayam tvisa A free translation of the aforesaid is reproduced below:<\/p>\n

The incomparable valour (effulgence) born from the physical frames of all the gods, spreading the three worlds by its radiance and combining together took the form of a woman.<\/p>\n

29. From the past, I travel to the present and respectfully notice what Lord Denning had to say about the equality of women and their role in the society:<\/p>\n

A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom \u2014 to develop her personality to the full as a man. When she marries, she does not become the husband\u2018s servant but his equal partner. If his work is more important in life of the community, her\u2018s is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.<\/p>\n

33. In Charu Khurana and others v. Union of India and others30, speaking about the dignity of women, the Court held:- 33. \u2026 Be it stated, dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.<\/p>\n

34. In Shakti Vahini v. Union of India and others31, the lis was in a different context. The Court reproduced a passage from Joseph J. Ellis which is also relevant for the present purpose. It reads:-<\/p>\n

We don\u2018t live in a world in which there exists a single definition of honour anymore, and it\u2018s a fool that hangs onto the traditional standards and hopes that the world will come around him.<\/p>\n

35. In the said case, a contention was advanced that the existence of a woman is entirely dependent on the male view of the reputation of the family, the community and the milieu. The Court, in that context, observed:-<\/p>\n

5. \u2026The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self-sacrificing, persons moving in physical frame having no individual autonomy, desire and identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive honour.<\/p>\n

36. We have referred to the aforesaid as we are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband\u2018s monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance. 37. Having stated about the dignity of a woman, in the context of autonomy, desire, choice and identity, it is obligatory to refer to the recent larger Bench decision in K.S. Puttaswamy and another v. Union of India and others32 which, while laying down that privacy is a facet of Article 21 of the Constitution, lays immense stress on the dignity of an individual. In the said judgment, it has been held:-<\/p>\n

108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).<\/p>\n

xxx xxxx xxx<\/p>\n

119. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence… xxx xxx xxx<\/p>\n

298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of selfdetermination.<\/p>\n

xxx xxx xxx<\/p>\n

525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual.359 The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorized use of such information. It is clear that Article 21, more than any of the other Articles in the fundamental rights chapter, reflects each of these constitutional values in full, and is to be read in consonance with these values and with the international covenants that we have referred to. In the ultimate analysis, the fundamental right of privacy, which has so many developing facets, can only be developed on a case to case basis. Depending upon the particular facet that is relied upon, either Article<\/p>\n

21 by itself or in conjunction with other fundamental rights would get attracted.<\/p>\n

38. In this context, we may profitably refer to National Legal Services Authority v. Union of India and others33 wherein A.K. Sikri, J., in his concurring opinion, emphasizing on the concept of dignity, has opined:-<\/p>\n

The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his\/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex\/gender identity which is integral his\/her personality and is one of the most basic aspect of self-determination dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.<\/p>\n

39. Very recently, in Common Cause (A Registered Society) v. Union of India and another34, one of us has stated:- … Human dignity is beyond definition. It may at times defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism. But what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling, and, as stated earlier, it deserves respect even when the person is dead and described as a body…..<\/p>\n

And again:-<\/p>\n

The concept and value of dignity requires further elaboration since we are treating it as an inextricable facet of right to life that respects all human rights that a person enjoys. Life is basically self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena. Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the message, Death plucks my ear and says, Live- I am coming . That is the significance of living. But when a patient really does not know if he\/she is living till death visits him\/her and there is constant suffering without any hope of living, should one be allowed to wait Should she\/he be cursed to die as life gradually ebbs out from her\/his being Should she\/he live because of innovative medical technology or, for that matter, should he\/she continue to live with the support system as people around him\/her think that science in its progressive invention may bring about an innovative method of cure To put it differently, should he\/she be guinea pig for some kind of experiment The answer has to be an emphatic Not because such futile waiting mars the pristine concept of life, corrodes 139 the essence of dignity and erodes the fact of eventual choice which is pivotal to privacy.<\/p>\n

In Mehmood Nayyar Azam v. State of Chhattisgarh and others, a two-Judge Bench held thus:-<\/p>\n

1…… Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, “the reverence of life offers me my fundamental principle on morality”. The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands. The reverence of life is insegragably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, ‘a brief candle’, or ‘a hollow bubble’. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligence”<\/p>\n

40. In the said judgment, A.K. Sikri, J. reproduced a passage from Professor Upendra Baxi\u2018s lecture in First Justice H.R. Khanna Memorial Lecture which reads as follows:- I still need to say that the idea of dignity is a metaethical one, that is it marks and maps a difficult terrain of what it may mean to say being ‘human’ and remaining ‘human’, or put another way the relationship between ‘self’, ‘others’, and ‘society’. In this formulation the word ‘respect’ is the keyword: dignity is respect for an individual person based on the principle of freedom and capacity to make choices and a good or just social order is one which respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’. Respect for dignity thus conceived is empowering overall and not just because it, even if importantly, sets constraints state, law, and regulations.<\/p>\n

41. From the aforesaid analysis, it is discernible 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 tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution.<\/p>\n

42. Another aspect needs to be addressed. The question we intend to pose is whether adultery should be treated as a criminal offence. Even assuming that the new definition of adultery encapsules within its scope sexual intercourse with an unmarried woman or a widow, adultery is basically associated with the institution of marriage. There is no denial of the fact that marriage is treated as a social institution and regard being had to various aspects that social history has witnessed in this country, the Parliament has always made efforts to maintain the rights of women. For instance, Section 498-A IPC deals with husband or relative of husband of a woman subjecting her to cruelty. The Parliament has also brought in the Protection of Women from Domestic Violence Act, 2005. This enactment protects women. It also enters into the matrimonial sphere. The offences under the provisions of the said enactment are different from the provision that has been conceived of under Section 497 IPC or, for that matter, concerning bringing of adultery within the net of a criminal offence. There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage. But the pivotal question is whether it should be treated as a criminal offence. When we say so, it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty. We are not commenting on any kind of ideal situation but, in fact, focusing on whether the act of adultery should be treated as a criminal offence. In this context, we are reminded of what Edmund Burke, a famous thinker, had said, a good legislation should be fit and equitable so that it can have a right to command obedience. Burke would like to put it in two compartments, namely, =equity\u2018 and =utility\u2018. If the principle of Burke is properly understood, it conveys that laws and legislations are necessary to serve and promote a good life.<\/p>\n

43. Dealing with the concept of crime, it has been stated in Principles of Criminal Liability35 thus :- 1. Definition of crime.\u2014There is no satisfactory definition of crime which will embrace the many acts and omissions which are criminal, and which will at the same time exclude all those acts and omissions which are not. Ordinarily a crime is a wrong which affects the security or wellbeing of the public generally so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to the general moral sense of the community. It is, however, possible to instance many crimes which exhibit neither of the foregoing characteristics. An act may be made criminal by Parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question.<\/p>\n

44. In Kennys Outlines of Criminal Law, 19th Edn., 1966 by J.W. Cecil Turner, it has been stated that:- There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore although it is true to say of crime that is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification.<\/p>\n

And again:-<\/p>\n

So long as crimes continue (as would seem inevitable) to be created by government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.<\/p>\n

45. Stephen defines a crime thus:- A crime is an unlawful act or default which is an offence against the public, rendering the person guilty of such act or default liable to legal punishment. The process by which such person is punished for the unlawful act or default is carried on in the name of the Crown; although any private person, in the absence of statutory provision to the contrary, may commence a criminal prosecution. Criminal proceedings were formerly called pleas of the Crown, because the King, in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community. Wherefore he is, in all cases, the proper prosecutor for every public offence.<\/p>\n

46. Blackstone, while discussing the general nature of crime, has defined crime thus:-<\/p>\n

A crime, or misdemeanour, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours; which, properly speaking, are mere synonym terms: though, in common usage, the word crimes is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of misdemeanours only.<\/p>\n

47. In this regard, we may reproduce a couple of paragraphs from Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly36. They read as under:-<\/p>\n

25. The story of mankind is punctuated by progress and retrogression. Empires have risen and crashed into the dust of history. Civilizations have nourished, reached their peak and passed away. In the year 1625, Carew, C.J., while delivering the opinion of the House of Lords in Re the Earldom of Oxford in a dispute relating to the descent of that Earldom, said:<\/p>\n

… and yet time hath his revolution, there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene….<\/p>\n

The cycle of change and experiment, rise and fall, growth and decay, and of progress and retrogression recurs endlessly in the history of man and the history of civilization. T.S. Eliot in the First Chorus from The Rock said: O perpetual revolution of configured stars, O perpetual recurrence of determined seasons, O world of spring and autumn, birth and dying; The endless cycle of idea and action, Endless invention, endless experiment.<\/p>\n

26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said: When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool. The law must, therefore, in a changing society march in tune with the changed ideas and ideologies.\u201d<\/p>\n

48. Reproducing the same, the Court in Common Cause (A Registered Society) (supra), has observed :- 160. The purpose of saying so is only to highlight that the law must take cognizance of the changing society and march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognize such dynamism.<\/p>\n

49. We have referred to the aforesaid theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. 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. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences. We are absolutely conscious that the Parliament has the law making power. 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. Let it be clearly stated, by no stretch of imagination, one can say, that Section 498-A or any other provision, as mentioned hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide. The said activities deserve to be punished and the law has rightly provided so.<\/p>\n

50. In this regard, we may also note how the extramarital relationship cannot be treated as an act for commission of an offence under Section 306 IPC. In Pinakin Mahipatray Rawal v. State of Gujarat37, the Court has held :- 27. Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.\u201d<\/p>\n

[Emphasis added]<\/p>\n

51. In the context of Section 498-A, the Court, in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat38, has opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, the Explanation (a) to Section 498-A IPC, which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is extracted below :-<\/p>\n

21. \u2026True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498- A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted. [Emphasis added]<\/p>\n

52. The purpose of referring to the aforesaid authorities is to highlight how adultery has not been granted separate exclusive space in the context of Sections 306 and 498-A IPC.<\/p>\n

53. 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 inapposite.<\/p>\n

54. We may also usefully note here that adultery as a crime is no more prevalent in People\u2018s Republic of China, Japan, Australia, Brazil and many western European countries. The diversity of culture in those countries can be judicially taken note of. Non-criminalisation of adultery, apart from what we have stated hereinabove, can be proved from certain other facets. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said =act\u2018 should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness. 55. In this regard, another aspect deserves to be noted. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law.<\/p>\n

56. 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. 57. In view of the foregoing analysis, the decisions in Sowmithri Vishnu (supra) and V. Revathi (supra) stand overruled and any other judgment following precedents also stands overruled.<\/p>\n

58. Consequently, the writ petition is allowed to the extent indicated hereinbefore.<\/p>\n

.\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026.CJI.
\n(Dipak Misra)
\n(A.M. Khanwilkar)
\nNew Delhi;
\nSeptember 27, 2018<\/p>\n

REPORTABLE<\/p>\n

IN THE SUPREME COURT OF INDIA<\/strong>
\nCRIMINAL ORIGINAL JURISDICTION<\/p>\n

WRIT PETITION (CRIMINAL) NO. 194 OF 2017<\/p>\n

JOSEPH SHINE \u2026 PETITIONER
\nVERSUS
\nUNION OF INDIA \u2026 RESPONDENT<\/p>\n

J U D G M E N T
\nR.F. Nariman, J. (Concurring)<\/p>\n

1. What is before us in this writ petition is the constitutional
\nvalidity of an archaic provision of the Indian Penal Code (IPC),
\nnamely, Section 497, which makes adultery a crime. Section
\n497 appears in Chapter XX of the IPC, which deals with
\noffences relating to marriage. Section 497 reads as follows:-
\n497. Adultery.\u2014Whoever has sexual intercourse
\nwith a person who is and whom he knows or has
\nreason to believe to be the wife of another man,
\nwithout the consent or connivance of that man, such
\nsexual intercourse not amounting to the offence of
\nrape, is guilty of the offence of adultery, and shall be<\/p>\n

punished with imprisonment of either description for
\na term which may extend to five years, or with fine,
\nor with both. In such case the wife shall not be
\npunishable as an abettor.<\/p>\n

The offence of bigamy, which is contained in Section 494 in the
\nsame Chapter, is punishable with a longer jail term which may
\nextend to 7 years, but in this case, the husband or the wife, as
\nthe case may be, is liable to be prosecuted and convicted.
\nSection 494 reads as follows:<\/p>\n

494. Marrying again during lifetime of husband
\nor wife.\u2014Whoever, having a husband or wife living,
\nmarries in any case in which such marriage is void
\nby reason of its taking place during the life of such
\nhusband or wife, shall be punished with
\nimprisonment of either description for a term which
\nmay extend to seven years, and shall also be liable
\nto fine.<\/p>\n

Exception.\u2014This section does not extend to any
\nperson whose marriage with such husband or wife
\nhas been declared void by a Court of competent
\njurisdiction,<\/p>\n

nor to any person who contracts a marriage during
\nthe life of a former husband or wife, if such husband
\nor wife, at the time of the subsequent marriage, shall
\nhave been continually absent from such person for
\nthe space of seven years, and shall not have been
\nheard of by such person as being alive within that
\ntime provided the person contracting such
\nsubsequent marriage shall, before such marriage
\ntakes place, inform the person with whom such
\nmarriage is contracted of the real state of facts so
\nfar as the same are within his or her knowledge.
\nIt will be noticed that the crime of adultery punishes only a thirdparty
\nmale offender as against the crime of bigamy, which
\npunishes the bigamist, be it a man or a woman. What is
\ntherefore punished as =adultery\u2018 is not =adultery\u2018 per se but the
\nproprietary interest of a married man in his wife.<\/p>\n

Almost all ancient religions\/civilizations punished the sin of
\nadultery. In one of the oldest, namely, in Hammurabi\u2018s Code,
\ndeath by drowning was prescribed for the sin of adultery, be it
\neither by the husband or the wife. In Roman law, it was not a
\ncrime against the wife for a husband to have sex with a slave or
\nan unmarried woman. The Roman lex Iulia de adulteriis
\ncoercendis of 17 B.C., properly so named after Emperor
\nAugustus\u2018 daughter, Julia, punished Julia for adultery with
\nbanishment. Consequently, in the case of adulterers generally,
\nboth guilty parties were sent to be punished on different islands,
\nand part of their property was confiscated.<\/p>\n

2. In Judaism, which again is an ancient religion, the Ten
\nCommandments delivered by the Lord to Moses on Mount Sinai
\ncontains the Seventh Commandment \u2013 Thou shalt not commit
\nadultery \u2013 set out in the book of Exodus in the Old Testament.<\/p>\n

Equally, since the wages of sin is death, the book of Leviticus in
\nthe Old Testament prescribes the death penalty for the
\nadulterer as well as the adulteress.<\/p>\n

3. In Christianity, we find adultery being condemned as
\nimmoral and a sin for both men and women, as is evidenced by
\nSt. Paul\u2018s letter to the Corinthians.<\/p>\n

Jesus himself stated that a
\nman incurs sin the moment he looks at a woman with lustful
\nintent.<\/p>\n

4 However, when it came to punishing a woman for
\nadultery, by stoning to death in accordance with the ancient
\nJewish law, Jesus uttered the famous words, let him who has
\nnot sinned, cast the first stone.5<\/p>\n

Exodus 20:14 (King James Version).
\nLeviticus 20:10 (King James Version).
\n1 Corinthians 6:9-10 (King James Version).
\n4 Matthew 5:27-28 (King James Version).
\nJohn, 8:7 (English Standard Version).
\n4. In this country as well, in the Manusmriti, Chapters 4.1346\u00a0and 8.3527<\/p>\n

prescribes punishment for those who are addicted
\nto intercourse with wives of other men by punishments which
\ncause terror, followed by banishment. The Dharmasutras speak
\nwith different voices. In the Apastamba Dharmasutra, adultery
\nis punishable as a crime, the punishment depending upon the
\nclass or caste of the man and the woman.<\/p>\n

8 However, in the
\nGautama Dharmasutra, if a man commits adultery, he should
\nobserve a life of chastity for two years; and if he does so with
\nthe wife of a vedic scholar, for three years.9
\n5. In Islam, in An-Nur, namely, Chapter 24 of the Qur\u2018an,
\nVerses 2 and 6 to 9 read as follows:
\n2. The adulteress and the adulterer, flog each of
\nthem (with) a hundred stripes, and let not pity for
\nthem detain you from obedience to Allah, if you
\nbelieve in Allah and the Last Day, and let a party of
\nbelievers witness their chastisement.10
\nxxx xxx xxx<\/p>\n

THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886).<\/p>\n

8 DHARMASUTRAS \u2013 THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 70-71
\n(Translation by Patrick Olivelle, Oxford University Press 1999).<\/p>\n

10 THE KORAN (AL\u2013QUR\u2018AN): ARABIC-ENGLISH BILINGUAL EDITION WITH AN INTRODUCTION BY MOHAMED A.
\n=ARAFA 363 (Maulana Muhammad Ali Translation, TellerBooks, 2018).<\/p>\n

6. And those who accuse their wives and have no
\nwitnesses except themselves, let one of them testify
\nfour times, bearing Allah to witness, that he is of
\nthose who speak the truth.<\/p>\n

7. And the fifth (time) that the curse of Allah be on
\nhim, if he is of those who lie.<\/p>\n

8. And it shall avert the chastisement from her, if she
\ntestify four times, bearing Allah to witness, that he is
\nof those who lie.<\/p>\n

9. And the fifth (time) that the wrath of Allah to be on
\nher, if he is of those who speak the truth.<\/p>\n

What is interesting to note is that if there are no witnesses other
\nthan the husband or the wife, and the husband testifies four
\ntimes that his wife has committed adultery, which is met by the
\nwife testifying four times that she has not, then earthly
\npunishment is averted. The wrath of Allah alone will be on the
\nhead of he or she who has given false testimony \u2013 which wrath
\nwill be felt only in life after death in the next world.<\/p>\n

6. In sixth-century Anglo-Saxon England, the law created
\nelaborate tables of composition which the offended husband
\ncould accept in lieu of blood vengeance. These tables were
\nschemes for payment of compensation depending upon the degree of harm caused to the cuckolded husband. However, as
\nChristianity spread in England, adultery became morally wrong
\nand therefore, a sin, as well as a wrong against the husband.
\nPost 1066, the Normans who took over, viewed adultery not as
\na crime against the State, but rather as an ecclesiastical
\noffence dealt with by the Church. The common law of England
\nprescribed an action in tort for loss of consortium based on the
\nproperty interest a husband had in his wife. Thus, the action for
\nconversation, which is compensation or damages, usually
\nrepresented a first step in obtaining divorce in medieval
\nEngland. In fact, adultery was the only ground for divorce in
\nseventeenth-century England, which had to be granted only by
\nParliament. Interestingly enough, it was only after King Charles
\nI was beheaded in 1649, that adultery became a capital offence
\nin Cromwell\u2018s Puritanical England in the year 1650, which was
\nnullified as soon as King Charles II came back in what was
\nknown as the =restoration of the monarchy\u2018. It will be seen
\ntherefore, that in England, except for an eleven-year period
\nwhen England was ruled by the Puritans, adultery was never
\nconsidered to be a criminal offence. Adultery was only a tort for<\/p>\n

which damages were payable to the husband, given his
\nproprietary interest in his wife.12 This tort is adverted to by a
\n1904 judgment of the Supreme Court of the United States in
\nCharles A. Tinker v. Frederick L. Colwell, 193 US 473
\n(1904), as follows:<\/p>\n

\u2026\u2026 We think the authorities show the husband
\nhad certain personal and exclusive rights with
\nregard to the person of his wife which are interfered
\nwith and invaded by criminal conversation with her;
\nthat such an act on the part of another man
\nconstitutes an assault even when, as is almost
\nuniversally the case as proved, the wife in fact
\nconsents to the act, because the wife is in law
\nincapable of giving any consent to affect the
\nhusband\u2018s rights as against the wrongdoer, and that
\nan assault of this nature may properly be described
\nas an injury to the personal rights and property of
\nthe husband, which is both malicious and willful\u2026\u2026
\nThe assault vi et armis is a fiction of law, assumed
\nat first, in early times, to give jurisdiction of the
\ncause of action as a trespass, to the courts, which
\nthen proceeded to permit the recovery of damages
\nby the husband for his wounded feelings and
\nhonour, the defilement of the marriage bed, and for
\nthe doubt thrown upon the legitimacy of children.13
\nWe think that it is made clear by these references
\nto a few of the many cases on this subject that the
\ncause of action by the husband is based upon the<\/p>\n

12 Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex
\nbetween Domestic Relations Attorneys and Their Clients, 23 HARVARD WOMEN\u2018S LAW JOURNAL 1, 21-22
\n(2000) [Linda Fitts Mischler].
\n13 Tinker v. Colwell, 193 U.S. 473, 481 (1904).<\/p>\n

idea that the act of the defendant is a violation of the
\nmarital rights of the husband in the person of his
\nwife, and so the act of the defendant is an injury to
\nthe person and also to the property rights of the
\nhusband.<\/p>\n

To similar effect is the judgment in Pritchard v. Pritchard and
\nSims, [1966] 3 All E.R. 601, which reconfirmed the origins of
\nadultery or criminal conversation as under:
\nIn 1857, when marriage in England was still a union
\nfor life which could be broken only by private Act of
\nParliament, there existed side by side under the
\ncommon law three distinct causes of action
\navailable to a husband whose rights in his wife were
\nviolated by a third party, who enticed her away, or
\nwho harboured her or who committed adultery with
\nher. \u2026\u2026 In the action for adultery known as criminal
\nconversation, which dates from before the time of
\nBRACTON, and consequently lay originally in
\ntrespass, the act of adultery itself was the cause of
\naction and the damages punitive at large. It lay
\nwhether the adultery resulted in the husband\u2018s
\nlosing his wife\u2018s society and services or not. All
\nthree causes of action were based on the
\nrecognition accorded by the common law to the
\nhusband\u2018s propriety interest in the person of his
\nwife, her services and earnings, and in the property
\nwhich would have been hers had she been feme
\nsole.15<\/p>\n

7. In England, Section LIX of the Divorce and Matrimonial
\nCauses Act, 1857 abolished the common law action for criminal
\nconversation while retaining, by Section XXXIII of the same Act,
\nthe power to award the husband damages for adultery
\ncommitted by the wife. This position continued right till 1923,
\nwhen the Matrimonial Causes Act, 1923 made adultery a
\nground for divorce available to both spouses instead of only the
\nhusband. The right of a husband to claim damages for adultery
\nwas abolished very recently by the Law Reforms
\n(Miscellaneous Provisions) Act, 1970.16
\n8. In the United States, however, Puritans who went to make
\na living in the American colonies, carried with them Cromwell\u2018s
\ncriminal law, thereby making adultery a capital offence.
\nStrangely enough, this still continues in some of the States in
\nthe United States. The American Law Institute, however, has
\ndropped the crime of adultery from its Model Penal Code as
\nadultery statutes are in general vague, archaic, and sexist.
\nNone of the old reasons in support of such statutes, namely,<\/p>\n

16 Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970.
\n11
\nthe controlling of disease, the preventing of illegitimacy, and
\npreserving the traditional family continue to exist as of today. It
\nwas also found that criminal adultery statutes were rarely
\nenforced in the United States and were, therefore, referred to
\nas dead letter statutes. This, plus the potential abuses from
\nsuch statutes continuing on the statute book, such as extortion,
\nblackmail, coercion etc. were stated to be reasons for removing
\nadultery as a crime in the Model Penal Code.
\n17
\n9. When we come to India, Lord Macaulay, in his draft Penal
\nCode, which was submitted to the Law Commissioners, refused
\nto make adultery a penal offence. He reasoned as follows:
\nThe following positions we consider as fully
\nestablished: first, that the existing laws for the
\npunishment of adultery are altogether inefficacious
\nfor the purpose of preventing injured husbands of
\nthe higher classes from taking the law into their own
\nhands; secondly, that scarcely any native of the
\nhigher classes ever has recourse to the Courts of
\nlaw in a case of adultery for redress against either
\nhis wife, or her gallant; thirdly, that the husbands
\nwho have recourse in cases of adultery to the
\nCourts of law are generally poor men whose wives
\nhave run away, that these husbands seldom have
\nany delicate feelings about the intrigue, but think
\nthemselves injured by the elopement, that they<\/p>\n

17 Linda Fitts Mischler, supra n. 12, 23-25.
\n12
\nconsider their wives as useful members of their
\nsmall household, that they generally complain not of
\nthe wound given to their affections, not of the stain
\non their honor, but of the loss of a menial whom they
\ncannot easily replace, and that generally their
\nprincipal object is that the woman may be sent back.
\nThe fiction by which seduction is made the subject
\nof an action in the English Courts is, it seems, the
\nreal gist of most proceedings for adultery in the
\nMofussil. The essence of the injury is considered by
\nthe sufferer as lying in the per quod servitium
\namisit. Where the complainant does not ask to
\nhave his wife again, he generally demands to be
\nreimbursed for the expenses of his marriage.
\nThese things being established it seems to us that
\nno advantage is to be expected from providing a
\npunishment for adultery. The population seems to
\nbe divided into two classes- those whom neither the
\nexisting punishment nor any punishment which we
\nshould feel ourselves justified in proposing will
\nsatisfy, and those who consider the injury produced
\nby adultery as one for which a pecuniary
\ncompensation will sufficiently atone. Those whose
\nfeelings of honor are painfully affected by the
\ninfidelity of their wives will not apply to the tribunals
\nat all. Those whose feelings are less delicate will be
\nsatisfied by a payment of money. Under such
\ncircumstances we think it best to treat adultery
\nmerely as a civil injury.
\nxxx xxx xxx
\nThese arguments have not satisfied us that
\nadultery ought to be made punishable by law. We
\ncannot admit that a Penal code is by any means to
\nbe considered as a body of ethics, that the
\nlegislature ought to punish acts merely because
\nthose acts are immoral, or that because an act is not
\npunished at all it follows that the legislature
\n13
\nconsiders that act as innocent. Many things which
\nare not punishable are morally worse than many
\nthings which are punishable. The man who treats a
\ngenerous benefactor with gross in gratitude and
\ninsolence, deserves more severe reprehension than
\nthe man who aims a blow in a passion, or breaks a
\nwindow in a frolic. Yet we have punishments for
\nassault and mischief, and none for ingratitude. The
\nrich man who refuses a mouthful of rice to save a
\nfellow creature from death may be a far worse man
\nthan the starving wretch who snatches and devours
\nthe rice. Yet we punish the latter for theft, and we do
\nnot punish the former for hard-heartedness.
\nxxx xxx xxx
\nThere is yet another consideration which we cannot
\nwholly leave out of sight. Though we well know that
\nthe dearest interests of the human race are closely
\nconnected with the chastity of women, and the
\nsacredness of the nuptial contract, we cannot but
\nfeel that there are some peculiarities in the state of
\nsociety in this country which may well lead a
\nhumane man to pause before he determines to
\npunish the infidelity of wives. The condition of the
\nwomen of this country is unhappily very different
\nfrom that of the women of England and France.
\nThey are married while still children. They are often
\nneglected for other wives while still young. They
\nshare the attentions of a husband with several
\nrivals. To make laws for punishing the inconstancy
\nof the wife while the law admits the privilege of the
\nhusband to fill his zenana with women, is a course
\nwhich we are most reluctant to adopt. We are not so
\nvisionary as to think of attacking by law an evil so
\ndeeply rooted in the manners of the people of this
\ncountry as polygamy. We leave it to the slow, but we
\ntrust the certain operation of education and of time.
\nBut while it exists, while it continues to produce its
\nnever failing effects on the happiness and
\n14
\nrespectability of women, we are not inclined to throw
\ninto a scale already too much depressed the
\nadditional weight of the penal law. We have given
\nthe reasons which lead us to believe that any
\nenactment on this subject would be nugatory. And
\nwe are inclined to think that if not nugatory it would
\nbe oppressive. It would strengthen hands already
\ntoo strong. It would weaken a class already too
\nweak. It will be time enough to guard the
\nmatrimonial contract by penal sanctions when that
\ncontract becomes just, reasonable, and mutually
\nbeneficial.
\n18
\n10. However, when the Court Commissioners reviewed the
\nPenal Code, they felt that it was important that adultery be
\nmade an offence. The reasons for so doing are set out as
\nfollows:
\n353. Having given mature consideration to the
\nsubject, we have, after some hesitation, come to the
\nconclusion that it is not advisable to exclude this
\noffence from the Code. We think the reasons for
\ncontinuing to treat it as a subject for the cognizance
\nof the criminal courts preponderate. We conceive
\nthat Colonel Sleeman is probably right in regarding
\nthe difficulty of proving the offence according to the
\nrequirement of the Mohammedan law of evidence,
\nwhich demands an amount of positive proof that is
\nscarcely ever to be had in such a case, as having
\nsome effect in deterring the Natives from
\nprosecuting adulterers in our courts, although the<\/p>\n

18 A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE
\nGOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 (G.H. Huttmann, The Bengal Military Orphan Press,
\n1837).
\n15
\nRegulations allow of a conviction upon strong
\npresumption arising from circumstantial evidence.
\nThis difficulty, if it has had the effect supposed, will
\nbe removed, should the Code be adopted. Colonel
\nSleeman\u2018s representation of the actual
\nconsequences of the present system, which, while it
\nrecognizes the offence, renders it, in the opinion of
\nthe Natives, almost impossible to bring an offender
\nto justice, it will be observed, coincides with and
\nconfirms practically Mr. Livingstone\u2018s view of the
\nresult to be expected when the law refuses to
\npunish this offence. The injured party will do it for
\nhimself; great crimes, assassinations, poisonings,
\nwill be the consequence. The law here does not
\nrefuse, but it fails to punish the offence, says
\nColonel Sleeman, and poisonings are the
\nconsequence.
\n354. Colonel Sleeman thinks that the
\nCommissioners have wrongly assumed that it is the
\nlenity of the existing law that it is complained of by
\nthe Natives, and believes that they would be
\nsatisfied with a less punishment for the offence than
\nthe present law allows; viz. imprisonment for seven
\nyears, if it were certain to follow the offender. He
\nproposes that the punishment of a man convicted
\nof seducing the wife of another shall be
\nimprisonment which may extend to seven years, or
\na fine payable to the husband or both imprisonment
\nand fine. The punishment of a married woman
\nconvicted of adultery he would limit to
\nimprisonment for two years. We are not aware
\nwhether or not he intends the difference in the terms
\nused to be significant of a difference in the nature of
\nthe proof against the man and the woman
\nrespectively.
\n355. While we think that the offence of adultery
\nought not to be omitted from the Code, we would
\nlimit its cognizance to adultery committed with a
\n16
\nmarried woman, and considering that there is much
\nweight in the last remark in Note Q, regarding the
\ncondition of a women of this country, in deference to
\nit we would render the male offender alone liable to
\npunishment. We would, however, put the parties
\naccused of adultery on trial together, and empower
\nthe Court, in the event of their conviction, to
\npronounce a decree of divorce against the guilty
\nwoman, if the husband sues for it, at the same time
\nthat her paramour is sentenced to punishment by
\nimprisonment or fine. By Mr. Livingstone\u2018s Code, the
\nwoman forfeits her matrimonial gains, but is not
\nliable to other punishment.
\n356. We would adopt Colonel Sleeman\u2018s
\nsuggestion as to the punishment of the male
\noffender, limiting it to imprisonment not exceeding
\nfive years, instead of seven years allowed at
\npresent, and sanctioning the imposition of a fine
\npayable to the husband as an alternative, or in
\naddition.
\n357. The punishment prescribed by the Code of
\nLouisiana is imprisonment not more than six
\nmonths, or fine not exceeding 2,000 dollars, or both.
\nBy the French Code, the maximum term of
\nimprisonment is two years, with fine in addition,
\nwhich may amount to 2,000 francs.
\n358. If the offence of adultery is admitted into the
\nPenal Code, there should be a provision in the Code
\nof Procedure to restrict the right of prosecuting to
\nthe injured husband, agreeably to Section 2, Act II of
\n1845.
\n19
\n(emphasis supplied)<\/p>\n

19 COPIES OF THE SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS 76 (James C. Melvill, East India
\nHouse, 1847).
\n17
\nThese are some of the reasons that led to the enactment of
\nSection 497, IPC.
\n11. At this stage, it is important to note that by Section 199 of
\nthe Code of Criminal Procedure, 1898, it was only the husband
\nwho was to be deemed to be aggrieved by an offence
\npunishable under Section 497, IPC. Thus, Section 199 stated:
\n199. Prosecution for adultery or enticing a
\nmarried woman.\u2014 No Court shall take cognizance
\nof an offence under section 497 or section 498 of
\nthe Indian Penal Code (XLV of 1860), except upon a
\ncomplaint made by the husband of the woman, or, in
\nhis absence, by some person who had care of such
\nwoman on his behalf at the time when such offence
\nwas committed.
\n12. Even when this Code was replaced by the Code of
\nCriminal Procedure (CrPC), 1973, Section 198 of the CrPC,
\n1973 continued the same provision with a proviso that in the
\nabsence of the husband, some person who had care of the
\nwoman on his behalf at the time when such offence was
\ncommitted may, with the leave of the Court, make a complaint
\non his behalf. The said Section reads as follows:
\n18
\n198. Prosecution for offences against
\nmarriage.\u2014 (1) No Court shall take cognizance of
\nan offence punishable under Chapter XX of the
\nIndian Penal Code (45 of 1860) except upon a
\ncomplaint made by some person aggrieved by the
\noffence:
\nProvided that\u2014
\n(a) where such person is under the age of
\neighteen years, or is an idiot or a lunatic, or
\nis from sickness or infirmity unable to make
\na complaint, or is a woman who, according
\nto the local customs and manners, ought
\nnot to be compelled to appear in public,
\nsome other person may, with the leave of
\nthe Court, make a complaint on his or her
\nbehalf;
\n(b) where such person is the husband and
\nhe is serving in any of the Armed Forces of
\nthe Union under conditions which are
\ncertified by his Commanding Officer as
\nprecluding him from obtaining leave of
\nabsence to enable him to make a
\ncomplaint in person, some other person
\nauthorised by the husband in accordance
\nwith the provisions of sub-section (4) may
\nmake a complaint on his behalf;
\n(c) where the person aggrieved by an
\noffence punishable under Section 494 or
\nSection 495 of the Indian Penal Code (45
\nof 1860) is the wife, complaint may be
\nmade on her behalf by her father, mother,
\nbrother, sister, son or daughter or by her
\nfather\u2018s or mother\u2018s brother or sister, or,
\nwith the leave of the Court, by any other
\nperson related to her by blood, marriage or
\nadoption.
\n19
\n(2) For the purposes of sub-section (1), no person
\nother than the husband of the woman shall be
\ndeemed to be aggrieved by any offence punishable
\nunder Section 497 or Section 498 of the said Code:
\nProvided that in the absence of the husband,
\nsome person who had care of the woman on his
\nbehalf at the time when such offence was
\ncommitted may, with the leave of the Court, make a
\ncomplaint on his behalf.
\n(3) When in any case falling under clause (a) of the
\nproviso to sub-section (1), the complaint is sought to
\nbe made on behalf of a person under the age of
\neighteen years or of a lunatic by a person who has
\nnot been appointed or declared by a competent
\nauthority to be the guardian of the person of the
\nminor or lunatic, and the Court is satisfied that there
\nis a guardian so appointed or declared, the Court
\nshall, before granting the application for leave,
\ncause notice to be given to such guardian and give
\nhim a reasonable opportunity of being heard.
\n(4) The authorisation referred to in clause (b) of the
\nproviso to sub-section (1), shall be in writing, shall
\nbe signed or otherwise attested by the husband,
\nshall contain a statement to the effect that he has
\nbeen informed of the allegations upon which the
\ncomplaint is to be founded, shall be countersigned
\nby his Commanding Officer, and shall be
\naccompanied by a certificate signed by that Officer
\nto the effect that leave of absence for the purpose of
\nmaking a complaint in person cannot for the time
\nbeing be granted to the husband.
\n(5) Any document purporting to be such an
\nauthorisation and complying with the provisions of
\nsub-section (4), and any document purporting to be
\na certificate required by that sub-section shall,
\nunless the contrary is proved, be presumed to be
\ngenuine and shall be received in evidence.
\n20
\n(6) No Court shall take cognizance of an offence
\nunder Section 376 of the Indian Penal Code (45 of
\n1860), where such offence consists of sexual
\nintercourse by a man with his own wife, the wife
\nbeing under eighteen years of age, if more than one
\nyear has elapsed from the date of the commission
\nof the offence.
\n(7) The provisions of this section apply to the
\nabetment of, or attempt to commit, an offence as
\nthey apply to the offence.
\nAt this stage, it is important to advert to some of the judgments
\nof the High Courts and our Court. In Yusuf Abdul Aziz v.
\nState, 1952 ILR Bom 449, a Division Bench of the Bombay
\nHigh Court, consisting of M.C. Chagla, C.J. and P.B.
\nGajendragadkar, J. held that Section 497 of the IPC did not
\ncontravene Articles 14 and 15 of the Constitution. However, in
\nan instructive passage, the learned Chief Justice stated:
\n\u2026\u2026 Mr. Peerbhoy is right when he says that the
\nunderlying idea of Section 497 is that wives are
\nproperties of their husbands. The very fact that this
\noffence is only cognizable with the consent of the
\nhusband emphasises that point of view. It may be
\nargued that Section 497 should not find a place in
\nany modern Code of law. Days are past, we hope,
\nwhen women were looked upon as property by their
\nhusbands. But that is an argument more in favour of
\ndoing away with Section 497 altogether.
\n20<\/p>\n

20 1952 ILR Bombay 449, 454.
\n21
\nAn appeal to this Court in Yusuf Abdul Aziz v. State of
\nBombay, 1954 SCR 930, (Yusuf Abdul Aziz), met with the
\nsame result.
\nThis Court, through Vivian Bose, J., held that the last part of
\nSection 497, which states that the wife shall not be punishable
\nas an abettor of the offence of adultery, does not offend Articles
\n14 and 15 in view of the saving provision contained in Article
\n15(3), being a special provision made in favour of women.
\nThis is an instance of Homer nodding. Apart from a limited ratio
\nbased upon a limited argument, the judgment applies a
\nconstitutional provision which is obviously inapplicable as
\nArticle 15(3), which states that, nothing in this article shall
\nprevent the State from making a special provision for women,
\nwould refer to the State as either Parliament or the State
\nLegislatures or the Executive Government of the Centre or the
\nStates, set up under the Constitution after it has come into
\nforce. Section 497 is, in constitutional language, an existing
\nlaw which continues, by virtue of Article 372(1), to apply, and
\n22
\ncould not, therefore, be said to be a law made by the State,
\nmeaning any of the entities referred to above.
\n13. We have noticed a judgment of the Division Bench of the
\nBombay High Court in Dattatraya Motiram More v. State of
\nBombay, AIR 1953 Bom 311, in which the Division Bench
\nturned down a submission that Article 15(3) is confined to laws
\nmade after the Constitution of India comes into force and would
\nalso apply to existing law thus:
\n8. An argument was advanced by Mr. Patel that Art.
\n15(3) only applies to future legislation and that as far
\nas all laws in force before the commencement of the
\nConstitution were concerned, those laws can only
\nbe tested by Art. 15(1) and not by Art. 15(1) read
\nwith Art. 15(3). Mr. Patel contends that Art. 15(3)
\npermits the State in future to make a special
\nprovision for women and children, but to the extent
\nthe laws in force are concerned Art. 15(1) applies,
\nand if the laws in force are inconsistent with Art.
\n15(1), those laws must be held to be void. Turning
\nto Art. 13(1), it provides:
\nAll laws in force in the territory of India
\nimmediately before the commencement of this
\nConstitution, in so far as they are inconsistent
\nwith the provisions of this Part, shall, to the
\nextent of such inconsistency, be void.
\nTherefore, before a law in force can be declared to
\nbe void it must be found to be inconsistent with one
\nof the provisions of Part III which deals with
\n23
\nFundamental Rights, and the fundamental right
\nwhich is secured to the citizen under Art. 15 is not
\nthe unlimited right under Art. 15(1) but the right
\nunder Art. 15(1) qualified by Art. 15(3). It is
\nimpossible to argue that the Constitution did not
\npermit laws to have special provision for women if
\nthe laws were passed before the Constitution came
\ninto force, but permitted the Legislature to pass laws
\nin favour of women after the Constitution was
\nenacted. If a law discriminating in favour of women
\nis opposed to the fundamental rights of citizens,
\nthere is no reason why such law should continue to
\nremain on the statute book. The whole scheme of
\nArt. 13 is to make laws, which are inconsistent with
\nPart III, void, not only if they were in force before the
\ncommencement of the Constitution, but also if they
\nwere enacted after the Constitution came into force.
\nMr. Patel relies on the various provisos to Art. 19
\nand he says that in all those provisos special
\nmention is made to existing laws and also to the
\nState making laws in future. Now, the scheme of Art.
\n19 is different from the scheme of Art. 15. Provisos
\nto Art. 19 in terms deal with law whether existing or
\nto be made in future by the State, whereas Art.
\n15(3) does not merely deal with laws but deals
\ngenerally with any special provision for women and
\nchildren, and therefore it was not necessary in Art.
\n15(3) to mention both existing laws and laws to be
\nmade in future. But the exception made to Art. 15(1)
\nby Art. 15(3) is an exception which applies both to
\nexisting laws and to laws which the State may make
\nin future.
\n14. We are of the view that this paragraph does not represent
\nthe law correctly. In fact, Article 19(2)-(6) clearly refers to
\nexisting law as being separate from the State making any
\n24
\nlaw, indicating that the State making any law would be laws
\nmade after the Constitution comes into force as opposed to
\nexisting law, which are pre-constitutional laws enacted before
\nthe Constitution came into force, as is clear from the definition
\nof existing law contained in Article 366(10), which reads as
\nunder:
\n366. Definitions.\u2014In this Constitution, unless the
\ncontext otherwise requires, the following
\nexpressions have the meanings hereby respectively
\nassigned to them, that is to say\u2014
\nxxx xxx xxx
\n(10) existing law means any law, Ordinance, order,
\nbye-law, rule or regulation passed or made before
\nthe commencement of this Constitution by any
\nLegislature, authority or person having power to
\nmake such a law, Ordinance, order, bye-law, rule or
\nregulation;
\n15. Article 15(3) refers to the State making laws which
\ntherefore, obviously cannot include existing law. Article 15(3) is
\nin this respect similar to Article 16(4), which reads as follows:
\n16. Equality of opportunity in matters of public
\nemployment.\u2014
\nxxx xxx xxx
\n25
\n(4) Nothing in this article shall prevent the State
\nfrom making any provision for the reservation of
\nappointments or posts in favour of any backward
\nclass of citizens which, in the opinion of the State, is
\nnot adequately represented in the services under
\nthe State.
\nThe vital difference in language between Articles 15(3) and
\n16(4) on the one hand, and Article 19(2)-(6) on the other, must
\nthus be given effect.
\n16. Coming back to Yusuf Abdul Aziz (supra), the difference
\nin language between Article 15(3) and Article 19(2)-(6) was not
\nnoticed. The limited ratio of this judgment merely refers to the
\nlast sentence in Section 497 which it upholds. Its ratio does not
\nextend to upholding the entirety of the provision or referring to
\nany of the arguments made before us for striking down the
\nprovision as a whole.
\n17. We then come to Sowmithri Vishnu v. Union of India
\nand Anr., (1985) Supp SCC 137, (Sowmithri Vishnu). In this
\ncase, an Article 32 petition challenged the constitutional validity
\nof Section 497 of the Penal Code on three grounds which are
\nset out in paragraph 6 of the judgment. Significantly, the
\n26
\nlearned counsel in that case argued that Section 497 is a
\nflagrant instance of =gender discrimination\u2018, =legislative
\ndespotism\u2018, and =male chauvinism\u2018. This Court repelled these
\narguments stating that they had a strong emotive appeal but no
\nvalid legal basis to rest upon. The first argument, namely, an
\nargument of discrimination was repelled by stating that the
\nambit of the offence of adultery should make the woman
\npunishable as well. This was repelled by saying that such
\narguments go to the policy of the law and not its
\nconstitutionality. This was on the basis that it is commonly
\naccepted that it is the man who is the seducer and not the
\nwoman. Even in 1985, the Court accepted that this archaic
\nposition may have undergone some change over the years, but
\nit is for the legislature to consider whether Section 497 be
\namended appropriately so as to take note of the transformation
\nthat society has undergone.
\nThe Court then referred to the 42nd Law Commission Report,
\n1971, which recommended the retention of Section 497, with
\nthe modification that, even the wife, who has sexual relations
\n27
\nwith a person other than her husband, should be made
\npunishable for adultery. The dissenting note of Mrs. Anna
\nChandi was also taken note of, where the dissenter stated that
\nthis is the right time to consider the question whether the
\noffence of adultery, as envisaged in Section 497, is in tune with
\nour present-day notions of women\u2018s status in marriage.
\nThe second ground was repelled stating that a woman is the
\nvictim of the crime, and as the offence of adultery is considered
\nas an offence against the sanctity of the matrimonial home, only
\nthose men who defile that sanctity are brought within the net of
\nthe law. Therefore, it is of no moment that Section 497 does not
\nconfer any right on the wife to prosecute the husband who has
\ncommitted adultery with another woman.
\nThe third ground, namely, that Section 497 is underinclusive
\ninasmuch as a husband who has sexual relations with an
\nunmarried woman is not within the net of the law, was repelled
\nstating that an unfaithful husband may invite a civil action by the
\nwife for separation, and that the Legislature is entitled to deal
\nwith the evil where it is felt and seen most.
\n28
\nA challenge on the ground of Article 21 was also repelled,
\nstating that the fact that a provision for hearing the wife is not
\ncontained in Section 497 cannot render that Section
\nunconstitutional. This Court then referred to the judgment in
\nYusuf Abdul Aziz (supra) and stated that since it was a 1954
\ndecision, and 30 years had passed since then, this Court was
\nexamining the position afresh. The Court ended with the
\nsermon, stability of marriages is not an ideal to be scorned.
\n18. In V. Revathi v. Union of India and Ors., (1988) 2 SCC
\n72, this Court, after referring to Sowmithri Vishnu (supra),
\nrepelled a similar challenge to Section 198 of the CrPC, 1973.
\nAfter referring to Sowmithri Vishnu (supra), since Section 497,
\nIPC and Section 198, CrPC go hand in hand and constitute a
\n=legislative packet\u2018 to deal with the offence of adultery
\ncommitted by an outsider, the challenge to the said Section
\nfailed.
\n19. International trends worldwide also indicate that very few
\nnations continue to treat adultery as a crime, though most
\n29
\nnations retain adultery for the purposes of divorce laws. Thus,
\nadultery continues to be a criminal offence in Afghanistan,
\nBangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan,
\nPhilippines, United Arab Emirates, some states of the United
\nStates of America, Algeria, Democratic Republic of Congo,
\nEgypt, Morocco, and some parts of Nigeria.
\nOn the other hand, a number of jurisdictions have done away
\nwith adultery as a crime. The People\u2018s Republic of China,
\nJapan, Brazil, New Zealand, Australia, Scotland, the
\nNetherlands, Denmark, France, Germany, Austria, the Republic
\nof Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago,
\nSeychelles etc. are some of the jurisdictions in which it has
\nbeen done away with. In South Korea21 and Guatemala,22
\nprovisions similar to Section 497 have been struck down by the
\nconstitutional courts of those nations.<\/p>\n

21 2009 Hun-Ba 17, (26.02.2015) [Constitutional Court of South Korea].
\n22 Expediente 936-95, (07.03.1996), Rep\u00fablica de Guatemala Corte de Constitucionalidad [Constitutional
\nCourt of Guatemala].
\n30
\n20. The Supreme Court of Namibia, in an instructive
\njudgment,23 went into whether the criminal offence of adultery
\nwould protect marriages and reduce the incidence of adultery. It
\nsaid:
\n[45] But does the action protect marriages from
\nadultery For the reasons articulated by both the
\nSCA and the Constitutional Court, I do not consider
\nthat the action can protect marriage as it does not
\nstrengthen a weakening marriage or breathe life into
\none which is in any event disintegrating. [DE v. RH,
\n2015 (5) SA 83 (CC) (Constitutional Court of South
\nAfrica) para 49]. The reasoning set out by the SCA
\nis salutary and bears repetition:
\n=But the question is: if the protection of marriage
\nis one of its main goals, is the action successful
\nin achieving that goal The question becomes
\nmore focused when the spotlight is directed at
\nthe following considerations:
\n(a) First of all, as was pointed out by the
\nGerman Bundesgericht in the passage
\nfrom the judgment (JZ 1973, 668) from
\nwhich I have quoted earlier, although
\nmarriage is \u2014
\n=a human institution which is
\nregulated by law and protected by
\nthe Constitution and which, in turn,
\ncreates genuine legal duties. Its
\nessence . . . consists in the<\/p>\n

23 James Sibongo v. Lister Lutombi Chaka and Anr. (Case No. SA77-14) (19.08.2016) [Supreme Court of
\nNamibia].
\n31
\nreadiness, founded in morals, of the
\nparties to the marriage to create and
\nto maintain it.\u2018
\nIf the parties to the marriage have lost
\nthat moral commitment, the marriage will
\nfail, and punishment meted out to a third
\nparty is unlikely to change that.
\n(b) Grave doubts are expressed by many
\nabout the deterrent effect of the action.
\nIn most other countries it was concluded
\nthat the action (no longer) has any
\ndeterrent effect and I have no reason to
\nthink that the position in our society is all
\nthat different. Perhaps one reason is that
\nadultery occurs in different
\ncircumstances. Every so often it
\nhappens without any premeditation,
\nwhen deterrence hardly plays a role. At
\nthe other end of the scale, the adultery is
\nsometimes carefully planned and the
\nparticipants are confident that it will not
\nbe discovered. Moreover, romantic
\ninvolvement between one of the spouses
\nand a third party can be as devastating
\nto the marital relationship as (or even
\nmore so than) sexual intercourse.
\n(c) If deterrence is the main purpose,
\none would have thought that this could
\nbetter be achieved by retaining the
\nimposition of criminal sanctions or by the
\ngrant of an interdict in favour of the
\ninnocent spouse against both the guilty
\nspouse and the third party to prevent
\nfuture acts of adultery. But, as we know,
\nthe crime of adultery had become
\nabrogated through disuse exactly 100
\n32
\nyears ago while an interdict against
\nadultery has never been granted by our
\ncourts (see, for example, Wassenaar v
\nJameson
\n, supra at 352H
\n\u2013 353H). Some
\nof the reasons given in Wassenaar as to
\nwhy an interdict would not be
\nappropriate are quite enlightening and
\nwould apply equally to the
\nappropriateness of a claim for damages.
\nThese include, firstly, that an interdict
\nagainst the guilty spouse is not possible
\nbecause he or she commits no delict.
\nSecondly, that as against a third party
\n\u2014
\n=it interferes with, and restricts the
\nrights and freedom that the third
\nparty ordinarily has of using and
\ndisposing of his body as he
\nchooses; . . . it also affects the
\nrelationship of the third party with
\nthe claimant’s spouse, who is and
\ncannot be a party to the interdict,
\nand therefore indirectly interferes
\nwith, and restricts her rights and
\nfreedom of, using and disposing of
\nher body as she chooses
\n\u2018. [At
\n353E.]
\n(d) In addition the deterrence argument
\nseems to depart from the assumption
\nthat adultery is the cause of the
\nbreakdown of a marriage, while it is now
\nwidely recognised that causes for the
\nbreakdown in marriages are far more
\ncomplex. Quite frequently adultery is
\nfound to be the result and not the cause
\nof an unhappy marital relationship.
\nConversely stated, a marriage in which
\nthe spouses are living in harmony is
\n33
\nhardly likely to be broken up by a third
\nparty.\u201824
\n21. Coming back to Section 497, it is clear that in order to
\nconstitute the offence of adultery, the following must be
\nestablished:
\n(i) Sexual intercourse between a married woman and a
\nman who is not her husband;
\n(ii) The man who has sexual intercourse with the married
\nwoman must know or has reason to believe that she
\nis the wife of another man;
\n(iii) Such sexual intercourse must take place with her
\nconsent, i.e., it must not amount to rape;
\n(iv) Sexual intercourse with the married woman must
\ntake place without the consent or connivance of her
\nhusband.
\n22. What is apparent on a cursory reading of these
\ningredients is that a married man, who has sexual intercourse<\/p>\n

24 Id., 17-19.
\n34
\nwith an unmarried woman or a widow, does not commit the
\noffence of adultery. Also, if a man has sexual intercourse with a
\nmarried woman with the consent or connivance of her husband,
\nhe does not commit the offence of adultery. The consent of the
\nwoman committing adultery is material only for showing that the
\noffence is not another offence, namely, rape.
\n23. The background in which this provision was enacted now
\nneeds to be stated. In 1860, when the Penal Code was
\nenacted, the vast majority of the population in this country,
\nnamely, Hindus, had no law of divorce as marriage was
\nconsidered to be a sacrament. Equally, a Hindu man could
\nmarry any number of women until 1955. It is, therefore, not far
\nto see as to why a married man having sexual intercourse with
\nan unmarried woman was not the subject matter of the offence.
\nSince adultery did not exist as a ground in divorce law, there
\nbeing no divorce law, and since a man could marry any number
\nof wives among Hindus, it was clear that there was no sense in
\npunishing a married man in having sex with an unmarried
\nwoman as he could easily marry her at a subsequent point in
\n35
\ntime. Two of the fundamental props or bases of this archaic law
\nhave since gone. Post 1955-1956, with the advent of the Hindu
\nCode, so to speak, a Hindu man can marry only one wife; and
\nadultery has been made a ground for divorce in Hindu Law.
\nFurther, the real heart of this archaic law discloses itself when
\nconsent or connivance of the married woman\u2018s husband is
\nobtained \u2013 the married or unmarried man who has sexual
\nintercourse with such a woman, does not then commit the
\noffence of adultery. This can only be on the paternalistic notion
\nof a woman being likened to chattel, for if one is to use the
\nchattel or is licensed to use the chattel by the licensor,
\nnamely, the husband, no offence is committed. Consequently,
\nthe wife who has committed adultery is not the subject matter of
\nthe offence, and cannot, for the reason that she is regarded
\nonly as chattel, even be punished as an abettor. This is also for
\nthe chauvinistic reason that the third-party male has =seduced\u2018
\nher, she being his victim. What is clear, therefore, is that this
\narchaic law has long outlived its purpose and does not square
\nwith today\u2018s constitutional morality, in that the very object with
\n36
\nwhich it was made has since become manifestly arbitrary,
\nhaving lost its rationale long ago and having become in today\u2018s
\nday and age, utterly irrational. On this basis alone, the law
\ndeserves to be struck down, for with the passage of time,
\nArticle 14 springs into action and interdicts such law as being
\nmanifestly arbitrary. That legislation can be struck down on the
\nground of manifest arbitrariness is no longer open to any doubt,
\nas has been held by this Court in Shayara Bano v. Union of
\nIndia and Ors., (2017) 9 SCC 1, as follows:
\n101. \u2026\u2026 Manifest arbitrariness, therefore, must be
\nsomething done by the legislature capriciously,
\nirrationally and\/or without adequate determining
\nprinciple. Also, when something is done which is
\nexcessive and disproportionate, such legislation
\nwould be manifestly arbitrary. We are, therefore, of
\nthe view that arbitrariness in the sense of manifest
\narbitrariness as pointed out by us above would
\napply to negate legislation as well under Article 14.
\n24. It is clear, therefore, that the ostensible object of Section
\n497, as pleaded by the State, being to protect and preserve the
\nsanctity of marriage, is not in fact the object of Section 497 at
\nall, as has been seen hereinabove. The sanctity of marriage
\ncan be utterly destroyed by a married man having sexual
\n37
\nintercourse with an unmarried woman or a widow, as has been
\nseen hereinabove. Also, if the husband consents or connives at
\nsuch sexual intercourse, the offence is not committed, thereby
\nshowing that it is not sanctity of marriage which is sought to be
\nprotected and preserved, but a proprietary right of a husband.
\nSecondly, no deterrent effect has been shown to exist, or ever
\nto have existed, which may be a legitimate consideration for a
\nState enacting criminal law. Also, manifest arbitrariness is writ
\nlarge even in cases where the offender happens to be a
\nmarried woman whose marriage has broken down, as a result
\nof which she no longer cohabits with her husband, and may in
\nfact, have obtained a decree for judicial separation against her
\nhusband, preparatory to a divorce being granted. If, during this
\nperiod, she has sex with another man, the other man is
\nimmediately guilty of the offence.
\n25. The aforesaid provision is also discriminatory and
\ntherefore, violative of Article 14 and Article 15(1). As has been
\nheld by us hereinabove, in treating a woman as chattel for the
\npurposes of this provision, it is clear that such provision
\n38
\ndiscriminates against women on grounds of sex only, and must
\nbe struck down on this ground as well. Section 198, CrPC is
\nalso a blatantly discriminatory provision, in that it is the husband
\nalone or somebody on his behalf who can file a complaint
\nagainst another man for this offence. Consequently, Section
\n198 has also to be held constitutionally infirm.
\n26. We have, in our recent judgment in Justice K.S.
\nPuttaswamy (Retd.) and Anr. v. Union of India and Ors.,
\n(2017) 10 SCC 1, (Puttaswamy), held:
\n108. Over the last four decades, our constitutional
\njurisprudence has recognised the inseparable
\nrelationship between protection of life and liberty
\nwith dignity. Dignity as a constitutional value finds
\nexpression in the Preamble. The constitutional
\nvision seeks the realisation of justice (social,
\neconomic and political); liberty (of thought,
\nexpression, belief, faith and worship); equality (as a
\nguarantee against arbitrary treatment of individuals)
\nand fraternity (which assures a life of dignity to
\nevery individual). These constitutional precepts exist
\nin unity to facilitate a humane and compassionate
\nsociety. The individual is the focal point of the
\nConstitution because it is in the realisation of
\nindividual rights that the collective well-being of the
\ncommunity is determined. Human dignity is an
\nintegral part of the Constitution. Reflections of
\ndignity are found in the guarantee against
\narbitrariness (Article 14), the lamps of freedom
\n39
\n(Article 19) and in the right to life and personal
\nliberty (Article 21).
\nxxx xxx xxx
\n298. Privacy of the individual is an essential aspect
\nof dignity. Dignity has both an intrinsic and
\ninstrumental value. As an intrinsic value, human
\ndignity is an entitlement or a constitutionally
\nprotected interest in itself. In its instrumental facet,
\ndignity and freedom are inseparably intertwined,
\neach being a facilitative tool to achieve the other.
\nThe ability of the individual to protect a zone of
\nprivacy enables the realisation of the full value of life
\nand liberty. Liberty has a broader meaning of which
\nprivacy is a subset. All liberties may not be
\nexercised in privacy. Yet others can be fulfilled only
\nwithin a private space. Privacy enables the
\nindividual to retain the autonomy of the body and
\nmind. The autonomy of the individual is the ability to
\nmake decisions on vital matters of concern to life.
\nPrivacy has not been couched as an independent
\nfundamental right. But that does not detract from the
\nconstitutional protection afforded to it, once the true
\nnature of privacy and its relationship with those
\nfundamental rights which are expressly protected is
\nunderstood. Privacy lies across the spectrum of
\nprotected freedoms. The guarantee of equality is a
\nguarantee against arbitrary State action. It prevents
\nthe State from discriminating between individuals.
\nThe destruction by the State of a sanctified personal
\nspace whether of the body or of the mind is violative
\nof the guarantee against arbitrary State action.
\nPrivacy of the body entitles an individual to the
\nintegrity of the physical aspects of personhood. The
\nintersection between one’s mental integrity and
\nprivacy entitles the individual to freedom of thought,
\nthe freedom to believe in what is right, and the
\nfreedom of self-determination. When these
\n40
\nguarantees intersect with gender, they create a
\nprivate space which protects all those elements
\nwhich are crucial to gender identity. The family,
\nmarriage, procreation and sexual orientation are all
\nintegral to the dignity of the individual. Above all, the
\nprivacy of the individual recognises an inviolable
\nright to determine how freedom shall be exercised.
\nAn individual may perceive that the best form of
\nexpression is to remain silent. Silence postulates a
\nrealm of privacy. An artist finds reflection of the soul
\nin a creative endeavour. A writer expresses the
\noutcome of a process of thought. A musician
\ncontemplates upon notes which musically lead to
\nsilence. The silence, which lies within, reflects on
\nthe ability to choose how to convey thoughts and
\nideas or interact with others. These are crucial
\naspects of personhood. The freedoms under Article
\n19 can be fulfilled where the individual is entitled to
\ndecide upon his or her preferences. Read in
\nconjunction with Article 21, liberty enables the
\nindividual to have a choice of preferences on
\nvarious facets of life including what and how one will
\neat, the way one will dress, the faith one will
\nespouse and a myriad other matters on which
\nautonomy and self-determination require a choice to
\nbe made within the privacy of the mind. The
\nconstitutional right to the freedom of religion under
\nArticle 25 has implicit within it the ability to choose a
\nfaith and the freedom to express or not express
\nthose choices to the world. These are some
\nillustrations of the manner in which privacy facilitates
\nfreedom and is intrinsic to the exercise of liberty.
\nThe Constitution does not contain a separate article
\ntelling us that privacy has been declared to be a
\nfundamental right. Nor have we tagged the
\nprovisions of Part III with an alpha-suffixed right to
\nprivacy: this is not an act of judicial redrafting.
\nDignity cannot exist without privacy. Both reside
\nwithin the inalienable values of life, liberty and
\n41
\nfreedom which the Constitution has recognised.
\nPrivacy is the ultimate expression of the sanctity of
\nthe individual. It is a constitutional value which
\nstraddles across the spectrum of fundamental rights
\nand protects for the individual a zone of choice and
\nself-determination.
\nxxx xxx xxx
\n482. Shri Sundaram has argued that rights have to
\nbe traced directly to those expressly stated in the
\nfundamental rights chapter of the Constitution for
\nsuch rights to receive protection, and privacy is not
\none of them. It will be noticed that the dignity of the
\nindividual is a cardinal value, which is expressed in
\nthe Preamble to the Constitution. Such dignity is not
\nexpressly stated as a right in the fundamental rights
\nchapter, but has been read into the right to life and
\npersonal liberty. The right to live with dignity is
\nexpressly read into Article 21 by the judgment
\nin Jolly George Varghese v. Bank of Cochin [Jolly
\nGeorge Varghese v. Bank of Cochin, (1980) 2 SCC
\n360], at para 10. Similarly, the right against bar
\nfetters and handcuffing being integral to an
\nindividual’s dignity was read into Article 21 by the
\njudgment in Sunil Batra v. Delhi Admn. [Sunil
\nBatra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC
\n(Cri) 155], at paras 192, 197-B, 234 and 241 and
\nPrem Shankar Shukla v. Delhi Admn. [Prem
\nShankar Shukla v. Delhi Admn., (1980) 3 SCC 526 :
\n1980 SCC (Cri) 815], at paras 21 and 22. It is too
\nlate in the day to canvas that a fundamental right
\nmust be traceable to express language in Part III of
\nthe Constitution. As will be pointed out later in this
\njudgment, a Constitution has to be read in such a
\nway that words deliver up principles that are to be
\nfollowed and if this is kept in mind, it is clear that the
\nconcept of privacy is contained not merely in
\n42
\npersonal liberty, but also in the dignity of the
\nindividual.
\nxxx xxx xxx
\n525. But most important of all is the cardinal value
\nof fraternity which assures the dignity of the
\nindividual. [In 1834, Jacques-Charles DuPont de
\nl’Eure associated the three terms liberty, equality
\nand fraternity together in the Revue R\u00e9publicaine,
\nwhich he edited, as follows: Any man aspires to
\nliberty, to equality, but he cannot achieve it without
\nthe assistance of other men, without fraternity.
\nMany of our decisions recognise human dignity as
\nbeing an essential part of the fundamental rights
\nchapter. For example, see Prem Shankar Shukla v.
\nDelhi Admn., (1980) 3 SCC 526 at para 21, Francis
\nCoralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at
\nparas 6, 7 and 8, Bandhua Mukti Morcha v. Union of
\nIndia, (1984) 3 SCC 161 at para 10, Maharashtra
\nUniversity of Health Sciences v. Satchikitsa
\nPrasarak Mandal, (2010) 3 SCC 786 at para
\n37, Shabnam v. Union of India, (2015) 6 SCC 702 at
\nparas 12.4 and 14 and Jeeja Ghosh v. Union of
\nIndia, (2016) 7 SCC 761 at para 37.] The dignity of
\nthe individual encompasses the right of the
\nindividual to develop to the full extent of his
\npotential. And this development can only be if an
\nindividual has autonomy over fundamental personal
\nchoices and control over dissemination of personal
\ninformation which may be infringed through an
\nunauthorised use of such information. It is clear that
\nArticle 21, more than any of the other articles in the
\nfundamental rights chapter, reflects each of these
\nconstitutional values in full, and is to be read in
\nconsonance with these values and with the
\ninternational covenants that we have referred to. In
\nthe ultimate analysis, the fundamental right to
\nprivacy, which has so many developing facets, can
\n43
\nonly be developed on a case-to-case basis.
\nDepending upon the particular facet that is relied
\nupon, either Article 21 by itself or in conjunction with
\nother fundamental rights would get attracted.
\nThe dignity of the individual, which is spoken of in the Preamble
\nto the Constitution of India, is a facet of Article 21 of the
\nConstitution. A statutory provision belonging to the hoary past
\nwhich demeans or degrades the status of a woman obviously
\nfalls foul of modern constitutional doctrine and must be struck
\ndown on this ground also.
\n27. When we come to the decision of this Court in Yusuf
\nAbdul Aziz (supra), it is clear that this judgment also does not,
\nin any manner, commend itself or keep in tune with modern
\nconstitutional doctrine. In any case, as has been held above, its
\nratio is an extremely limited one as it upheld a wife not being
\npunishable as an abettor which is contained in Section 497,
\nIPC. The focus on whether the provision as a whole would be
\nconstitutionally infirm was not there in the aforesaid judgment.
\nAt this stage, it is necessary to advert to Chief Justice Chagla\u2018s
\nforesight in the Bombay High Court judgment which landed up
\n44
\nin appeal before this Court in Yusuf Abdul Aziz\u2019s (supra).
\nChief Justice Chagla had stated that since the underlying idea
\nof Section 497 is that wives are properties of their husbands,
\nSection 497 should not find a place in any modern Code of law,
\nand is an argument in favour of doing away with Section 497
\naltogether. The day has long since arrived when the Section
\ndoes, in fact, need to be done away with altogether, and is
\nbeing done away with altogether.
\n28. In Sowmithri Vishnu (supra), this Court upheld Section
\n497 while repelling three arguments against its continuance, as
\nhas been noticed hereinabove. This judgment also must be
\nsaid to be swept away by the tidal wave of recent judgments
\nexpanding the scope of the fundamental rights contained in
\nArticles 14, 15, and 21. Ancient notions of the man being the
\nseducer and the woman being the victim permeate the
\njudgment, which is no longer the case today. The moving times
\nhave not left the law behind as we have just seen, and so far as
\nengaging the attention of law makers when reform of penal law
\nis undertaken, we may only hasten to add that even when the
\n45
\nCrPC was fully replaced in 1973, Section 198 continued to be
\non the statute book. Even as of today, Section 497 IPC
\ncontinues to be on the statute book. When these sections are
\nwholly outdated and have outlived their purpose, not only does
\nthe maxim of Roman law, cessante ratione legis, cessat ipsa
\nlex, apply to interdict such law, but when such law falls foul of
\nconstitutional guarantees, it is this Court\u2018s solemn duty not to
\nwait for legislation but to strike down such law. As recently as in
\nShayara Bano (supra), it is only the minority view of Khehar,
\nC.J.I. and S. Abdul Nazeer, J., that one must wait for the law to
\nchange legislatively by way of social reform. The majority view
\nwas the exact opposite, which is why Triple Talaq was found
\nconstitutionally infirm and struck down by the majority. Also, we
\nare of the view that the statement in this judgment that stability
\nof marriages is not an ideal to be scorned, can scarcely be
\napplied to this provision, as we have seen that marital stability
\nis not the object for which this provision was enacted. On all
\nthese counts, therefore, we overrule the judgment in Sowmithri
\nVishnu (supra). Equally, the judgment in V. Revathi (supra),
\nwhich upheld the constitutional validity of Section 198 must, for
\n46
\nsimilar reasons, be held to be no longer good law. We,
\ntherefore, declare that Section 497 of the Indian Penal Code,
\n1860 and Section 198 of the Code of Criminal Procedure, 1973
\nare violative of Articles 14, 15(1), and 21 of the Constitution of
\nIndia and are, therefore, struck down as being invalid.
\n\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026..J.
\n(R.F. Nariman)
\nNew Delhi;
\nSeptember 27, 2018.
\n1
\nREPORTABLE
\nIN THE SUPREME COURT OF INDIA
\nCRIMINAL ORIGINAL JURISDICTION
\nWRIT PETITION (CRIMINAL) NO 194 OF 2017
\nJOSEPH SHINE …Petitioner
\nVERSUS
\nUNION OF INDIA …Respondent
\nJ U D G M E N T
\nIndex
\nA Gender: the discursive struggle
\nB Judicial discourse on adultery
\nC Relics of the past
\nD Across frontiers
\nE Confronting patriarchy
\nF \u2018The Good Wife\u2019
\nF.1 The entrapping cage
\nG Denuding identity – women as sexual property
\nG.1 Exacting fidelity: the intimacies of marriage
\nH Towards transformative justice
\nPART A
\n2
\nDr Dhananjaya Y Chandrachud, J
\nA Gender: the discursive struggle
\n1 Our Constitution is a repository of rights, a celebration of myriad freedoms
\nand liberties. It envisages the creation of a society where the ideals of equality,
\ndignity and freedom triumph over entrenched prejudices and injustices. The
\ncreation of a just, egalitarian society is a process. It often involves the
\nquestioning and obliteration of parochial social mores which are antithetical to
\nconstitutional morality. The case at hand enjoins this constitutional court to make
\nan enquiry into the insidious permeation of patriarchal values into the legal order
\nand its role in perpetuating gender injustices.
\n2 Law and society are intrinsically connected and oppressive social values
\noften find expression in legal structures. The law influences society as well but
\nsocietal values are slow to adapt to leads shown by the law. The law on adultery
\ncannot be construed in isolation. To fully comprehend its nature and impact,
\nevery legislative provision must be understood as a \u2018discourse\u2019 about social
\nstructuring.1 However, the discourse of law is not homogenous.2
\nIn the context
\nparticularly of Section 497, it regards individuals as \u2018gendered citizens\u2019.
\n3
\nIn doing
\nso, the law creates and ascribes gender roles based on existing societal<\/p>\n

1 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications
\n(1996) at page 40
\n2
\nIbid at page 41
\n3
\nIbid
\nPART A
\n3
\nstereotypes. An understanding of law as a \u2018discourse\u2019 would lead to the
\nrecognition of the role of law in creating \u2018gendered identities\u2019.
\n4
\n3 Over the years, legal reform has had a significant role in altering the
\nposition of women in societal orderings. This is seen in matters concerning
\ninheritance and in the protection against domestic violence. However, in some
\ncases, the law operates to perpetuate an unequal world for women. Thus,
\ndepending on the manner in which it is used, law can act as an agent of social
\nchange as well as social stagnation. Scholar Patricia Williams, who has done
\nconsiderable work on the critical race theory, is sanguine about the possibility of
\nlaw engendering progressive social transformation:
\n\u201cIt is my deep belief that theoretical legal understanding and
\nsocial transformation need not be oxymoronic\u201d5
\nThe Constitution, both in text and interpretation, has played a significant role in
\nthe evolution of law from being an instrument of oppression to becoming one of
\nliberation. Used in a liberal perspective, the law can enhance democratic values.
\nAs an instrument which preserves the status quo on the other hand, the law
\npreserves stereotypes and legitimises unequal relationships based on preexisting
\nsocietal discrimination. Constantly evolving, law operates as an
\nimportant \u201csite for discursive struggle\u201d, where ideals compete and new visions
\nare shaped.6
\n. In regarding law as a \u201csite of discursive struggle\u201d, it becomes<\/p>\n

4
\nIbid
\n5 Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard University Press (1991)
\n6 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications
\n(1996) at page 41
\nPART A
\n4
\nimperative to examine the institutions and structures within which legal discourse
\noperates:7
\n\u201cThe idea of neutral dialogue is an idea which denies history,
\ndenies structure, denies the positioning of subjects.\u201d8
\nIn adjudicating on the rights of women, the Court must not lose sight of the
\ninstitutions and values which have forced women to a shackled existence so far.
\nTo fully recognise the role of law and society in shaping the lives and identities of
\nwomen, is also to ensure that patriarchal social values and legal norms are not
\npermitted to further obstruct the exercise of constitutional rights by the women of
\nour country.
\n4 In the preceding years, the Court has evolved a jurisprudence of rightsgranting
\nprimacy to the right to autonomy, dignity and individual choice. The right
\nto sexual autonomy and privacy has been granted the stature of a Constitutional
\nright. In confronting the sources of gendered injustice which threaten the rights
\nand freedoms promised in our Constitution, we set out to examine the validity of
\nSection 497 of the Indian Penal Code. In doing so, we also test the
\nconstitutionality of moral and societal regulation of women and their intimate lives
\nthrough the law.<\/p>\n

7
\nIbid
\n8 Gayatri Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogies, Routledge (1990)
\nPART B
\n5
\nB Judicial discourse on adultery
\n5 This Court, on earlier occasions, has tested the constitutionality of Section
\n497 of the Indian Penal Code as well as Section 198(2) of the Code of Criminal
\nProcedure.
\nSection 497 reads thus:
\n\u201cWhoever has sexual intercourse with a person who is and
\nwhom he knows or has reason to believe to be the wife of
\nanother man, without the consent or connivance of that man,
\nsuch sexual intercourse not amounting to the offence of rape,
\nis guilty of the offence of adultery, and shall be punished with
\nimprisonment of either description for a term which may
\nextend to five years, or with fine, or with both. In such case
\nthe wife shall not be punishable as an abettor.\u201d
\nSection 198(2) of the Code of Criminal Procedure reads thus:
\n\u201c(2) For the purposes of sub- section (1), no person other
\nthan the husband of the woman shall be deemed to be
\naggrieved by any offence punishable under section 497 or
\nsection 498 of the said Code: Provided that in the absence of
\nthe husband, some person who had care of the woman on his
\nbehalf at the time when such offence was com- mitted may,
\nwith the leave of the Court, make a complaint on his behalf.\u201d
\n6 The decision of the Constitution Bench in Yusuf Abdul Aziz v State of
\nBombay9
\n, arose from a case where the appellant was being prosecuted for
\nadultery under Section 497. On a complaint being filed, he moved the High Court
\nto determine the constitutional question about the validity of the provision, under<\/p>\n

9 1954 SCR 930
\nPART B
\n6
\nArticle 228. The High Court decided against the appellant10, but Chief Justice
\nChagla made an observation about the assumption underlying Section 497:
\n\u201cMr Peerbhoy is right when he says that the underlying idea
\nof Section 497 is that wives are properties of their husbands.
\nThe very fact that the offence is only cognizable with the
\nconsent of the husband emphasises that point of view. It may
\nbe argued that Section 497 should not find a place in any
\nmodern Code of law. Days are past, when women were
\nlooked upon as property by their husbands.\u201d
\nA narrow challenge was addressed before this Court. The judgment of Justice
\nVivian Bose records the nature of the challenge:
\n\u201c3. Under Section 497 the offence of adultery can only be
\ncommitted by a man but in the absence of any provision to
\nthe contrary the woman would be punishable as an abettor.
\nThe last sentence in Section 497 prohibits this. It runs\u2014
\n\u201cIn such case the wife shall not be punishable as an abettor\u201d.
\nIt is said that this offends Articles 14 and 15.\u201d
\nHence, the challenge was only to the prohibition on treating the wife as an
\nabettor. It was this challenge which was dealt with and repelled on the ground
\nthat Article 14 must be read with the other provisions of Part III which prescribe
\nthe ambit of the fundamental rights. The prohibition on treating the wife as an
\nabettor was upheld as a special provision which is saved by Article 15(3). The
\nconclusion was that:
\n\u201c5. Article 14 is general and must be read with the other
\nprovisions which set out the ambit of fundamental rights. Sex
\nis a sound classification and although there can be no
\ndiscrimination in general on that ground, the Constitution itself
\nprovides for special provisions in the case of women and
\nchildren. The two articles read together validate the impugned
\nclause in Section 497 of the Indian Penal Code.\u201d<\/p>\n

10 AIR 1951 Bom 470
\nPART B
\n7
\n7 The challenge was to a limited part of Section 497: that which prohibited a
\nwoman from being prosecuted as an abettor. Broader issues such as whether (i)
\nthe punishment for adultery violates Article 21; (ii) the statutory provision suffers
\nfrom manifest arbitrariness; (iii) the legislature has, while ostensibly protecting
\nthe sanctity of marriage, invaded the dignity of women; and (iv) Section 497
\nviolates Article 15(1) by enforcing gender stereotypes were neither addressed
\nbefore this Court nor were they dealt with.
\nThis Court construed the exemption granted to women from criminal sanctions as
\na \u2018special provision\u2019 for the benefit of women and thus, protected under Article
\n15(3) of the Constitution. In Union of India v Elphinstone Spinning and
\nWeaving Co. Ltd,
\n11 a Constitution Bench of this Court held:
\n\u201c17\u2026When the question arises as to the meaning of a certain
\nprovision in a statute it is not only legitimate but proper to
\nread that provision in its context. The context means the
\nstatute as a whole, the previous state of law, other statutes in
\npari materia, the general scope of the statute and the mischief
\nthat it was intended to remedy\u2026\u201d12
\nIt is of particular relevance to examine the mischief that the provision intends to
\nremedy. The history of Section 497 reveals that the law on adultery was for the
\nbenefit of the husband, for him to secure ownership over the sexuality of his wife.
\nIt was aimed at preventing the woman from exercising her sexual agency. Thus,
\nSection 497 was never conceived to benefit women. In fact, the provision is
\nsteeped in stereotypes about women and their subordinate role in marriage. The<\/p>\n

11 (2001) 4 SCC 139
\n12 Ibid. at page 164
\nPART B
\n8
\npatriarchal underpinnings of the law on adultery become evident when the
\nprovision is considered as a whole.
\n8 In the subsequent decision of the three judge Bench in Sowmithri Vishnu
\nv Union of India13
\n, the court proceeded on the basis that the earlier decision in
\nYusuf Abdul Aziz had upheld Section 497 against a challenge based on Articles
\n14 and 15 of the Constitution. This is not a correct reading or interpretation of the
\njudgment.
\n9 Sowmithri Vishnu did as a matter of fact consider the wider constitutional
\nchallenge on the ground that after the passage of thirty years, \u201cparticularly in the
\nlight of the alleged social transformation in the behavioural pattern of women in
\nmatters of sex\u201d, it had become necessary that the matter be revisited. Sowmithri
\nVishnu arose in a situation where a petition for divorce by the appellant against
\nher husband on the ground of desertion was dismissed with the finding that it
\nwas the appellant who had deserted her husband. The appellant\u2019s husband then
\nsued for divorce on the ground of desertion and adultery. Faced with this petition,
\nthe appellant urged that a decree for divorce on the ground of desertion may be
\npassed on the basis of the findings in the earlier petition. She, however, opposed
\nthe effort of the husband to urge the ground of adultery. While the trial court
\naccepted the plea of the husband to assert the ground of adultery, the High Court
\nheld in revision that a decree of divorce was liable to be passed on the ground of
\ndesertion, making it unnecessary to inquire into adultery. While the petition for<\/p>\n

13 1985 Supp SCC 137
\nPART B
\n9
\ndivorce was pending against the appellant, her husband filed a complaint under
\nSection 497 against the person with whom the appellant was alleged to be in an
\nadulterous relationship. The appellant then challenged the constitutional validity
\nof Section 497.
\nThe judgment of the three judge Bench indicates that three grounds of challenge
\nwere addressed before this Court : first, while Section 497 confers a right on the
\nhusband to prosecute the adulterer, it does not confer upon the wife to prosecute
\nthe woman with whom her husband has committed adultery; second, Section
\n497 does not confer a right on the wife to prosecute her husband who has
\ncommitted adultery with another woman; and third, Section 497 does not cover
\ncases where a man has sexual relations with an unmarried woman. The
\nsubmission before this Court was that the classification under Section 497 was
\nirrational and \u2018arbitrary\u2019. Moreover, it was also urged that while facially, the
\nprovision appears to be beneficial to a woman, it is in reality based on a notion of
\npaternalism \u201cwhich stems from the assumption that women, like chattels, are the
\nproperty of men.\u201d
\n10 The decision in Sowmithri Vishnu dealt with the constitutional challenge
\nby approaching the discourse on the denial of equality in formal, and rather
\nnarrow terms. Chandrachud, CJ speaking for the three judge Bench observed
\nthat by definition, the offence of adultery can be committed by a man and not by
\na woman. The court construed the plea of the petitioner as amounting to a
\nPART B
\n10
\nsuggestion that the definition should be recast in a manner that would make the
\noffence gender neutral. The court responded by observing that this was a matter
\nof legislative policy and that the court could invalidate the provision only if a
\nconstitutional violation is established. The logic of the court, to the effect that
\nextending the ambit of a statutory definition is a matter which requires legislative
\nchange is unexceptionable. The power to fashion an amendment to the law lies
\nwith the legislature. But this only leads to the conclusion that the court cannot
\nextend the legislative prescription by making the offence gender neutral. It does
\nnot answer the fundamental issue as to whether punishment for adultery is valid
\nin constitutional terms. The error in Sowmithri Vishnu lies in holding that there
\nwas no constitutional infringement. The judgment postulates that:
\n\u201c7\u2026It is commonly accepted that it is the man who is the
\nseducer and not the woman. This position may have
\nundergone some change over the years but it is for the
\nLegislature to consider whether Section 497 should be
\namended appropriately so as to take note of the
\n\u201ctransformation\u201d which the society has undergone. The Law
\nCommission of India in its Forty-second Report, 1971,
\nrecommended the retention of Section 497 in its present form
\nwith the modification that, even the wife, who has sexual
\nrelations with a person other than her husband, should be
\nmade punishable for adultery. The suggested modification
\nwas not accepted by the Legislature. Mrs Anna Chandi, who
\nwas in the minority, voted for the deletion of Section 497 on
\nthe ground that \u201cit is the right time to consider the question
\nwhether the offence of adultery as envisaged in Section 497
\nis in tune with our present-day notions of woman’s status in
\nmarriage\u201d. The report of the Law Commission shows that
\nthere can be two opinions on the desirability of retaining a
\nprovision like the one contained in Section 497 on the statute
\nbook. But, we cannot strike down that section on the ground
\nthat it is desirable to delete it.\u201d14<\/p>\n

14 Ibid. at page 141
\nPART B
\n11
\nThese observations indicate that the constitutional challenge was addressed
\npurely from the perspective of the argument that Section 497 is not gender
\nneutral, in allowing only the man but not to the woman in a sexual relationship to
\nbe prosecuted. The court proceeded on the assumption, which it regards as
\n\u201ccommonly accepted that it is the man who is the seducer and not the woman.\u201d
\nObserving that this position may have undergone some change, over the years,
\nthe decision holds that these are matters for the legislature to consider and that
\nthe desirability of deleting Section 497 is not a ground for invalidation.
\n11 The decision in Sowmithri Vishnu has left unanswered the fundamental
\nchallenge which was urged before the Court. Under Article 14, the challenge was
\nthat the statutory provision treats a woman purely as the property of her
\nhusband. That a woman is regarded no more than as a possession of her
\nhusband is evidenced in Section 497, in more than one context. The provision
\nstipulates that a man who has sexual intercourse with the wife of another will not
\nbe guilty of offence if the husband of the woman were to consent or, (worse still,
\nto connive. In this, it is evident that the legislature attributes no agency to the
\nwoman. Whether or not a man with whom she has engaged in sexual intercourse
\nis guilty of an offence depends exclusively on whether or not her husband is a
\nconsenting individual. No offence exists if her husband were to consent. Even if
\nher husband were to connive at the act, no offence would be made out. The
\nmirror image of this constitutional infirmity is that the wife of the man who has
\nengaged in the act has no voice or agency under the statute. Again, the law does
\nPART B
\n12
\nnot make it an offence for a married man to engage in an act of sexual
\nintercourse with a single woman. His wife is not regarded by the law as a person
\nwhose agency and dignity is affected. The underlying basis of not penalising a
\nsexual act by a married man with a single woman is that she (unlike a married
\nwoman) is not the property of a man (as the law would treat her to be if she is
\nmarried). Arbitrariness is writ large on the provision. The problem with Section
\n497 is not just a matter of under inclusion. The court in Sowmithri Vishnu
\nrecognised that an under-inclusive definition is not necessarily discriminatory and
\nthat the legislature is entitled to deal with the evil where it is felt and seen the
\nmost. The narrow and formal sense in which the provisions of Article 14 have
\nbeen construed is evident again from the following observations:
\n\u201c8\u2026The contemplation of the law, evidently, is that the wife,
\nwho is involved in an illicit relationship with another man, is a
\nvictim and not the author of the crime. The offence of
\nadultery, as defined in Section 497, is considered by the
\nLegislature as an offence against the sanctity of the
\nmatrimonial home, an act which is committed by a man, as it
\ngenerally is. Therefore, those men who defile that sanctity are
\nbrought within the net of the law. In a sense, we revert to the
\nsame point: Who can prosecute whom for which offence
\ndepends, firstly, on the definition of the offence and, secondly,
\nupon the restrictions placed by the law of procedure on the
\nright to prosecute.\u201d15
\nThe decision of the three judge Bench does not address the central challenge to
\nthe validity of Section 497. Section 497, in its effort to protect the sanctity of
\nmarriage, has adopted a notion of marriage which does not regard the man and
\nthe woman as equal partners. It proceeds on the subjection of the woman to the
\nwill of her husband. In doing so, Section 497 subordinates the woman to a<\/p>\n

15 Ibid. at page 142
\nPART B
\n13
\nposition of inferiority thereby offending her dignity, which is the core of Article 21.
\nSignificantly, even the challenge under Article 21 was addressed on behalf of the
\npetitioner in that case in a rather narrow frame. The argument before this Court
\nwas that at the trial involving an offence alleged to have been committed under
\nSection 497, the woman with whom the accused is alleged to have had sexual
\nintercourse would have no right of being heard. It was this aspect alone which
\nwas addressed in Sowmithri Vishnu when the court held that such a right of
\nbeing heard can be read in an appropriate case. Ultimately, the court held that:
\n\u201c12\u2026It is better, from the point of view of the interests of the
\nsociety, that at least a limited class of adulterous relationships
\nis punishable by law. Stability of marriages is not an ideal to
\nbe scorned.\u201d16
\nSowmithri Vishnu has thus proceeded on the logic that in specifying an offence,
\nit is for the legislature to define what constitutes the offence. Moreover, who can
\nprosecute and who can be prosecuted, are matters which fall within the domain
\nof the law. The inarticulate major premise of the judgment is that prosecution for
\nadultery is an effort to protect the stability of marriages and if the legislature has
\nsought to prosecute only a limited class of \u2018adulterous relationships\u2019, its choice
\ncould not be questioned. \u2018Sowmithri Vishnu\u2019 fails to deal with the substantive
\naspects of constitutional jurisprudence which have a bearing on the validity of
\nSection 497: the guarantee of equality as a real protection against arbitrariness,
\nthe guarantee of life and personal liberty as an essential recognition of dignity,
\nautonomy and privacy and above all gender equality as a cornerstone of a truly
\nequal society. For these reasons, the decision in Sowmithri Vishnu cannot be<\/p>\n

16 Ibid. at page 144
\nPART B
\n14
\nregarded as a correct exposition of the constitutional position. Sowmithri Vishnu
\nis overruled.
\n12 The decision of a two judge Bench in V Revathi v Union of India17
\ninvolved a challenge to Section 497 (read with Section 198(2) of the Code of
\nCriminal Procedure) which disables a wife from prosecuting her husband for
\nbeing involved in an adulterous relationship. The court noted that Section 497
\npermits neither the husband of the offending wife to prosecute her nor does it
\npermit the wife to prosecute her offending husband for being disloyal. This
\nformal sense of equality found acceptance by the court. The challenge was
\nrepelled by relying on the decision in Sowmithri Vishnu. Observing that Section
\n497 and Section 198(2) constitute a \u201clegislative packet\u201d, the court observed that
\nthe provision does not allow either the wife to prosecute an erring husband or a
\nhusband to prosecute the erring wife. In the view of the court, this indicated that
\nthere is no discrimination on the ground of sex. In the view of the court :
\n\u201c5\u2026The law does not envisage the punishment of any of the
\nspouses at the instance of each other. Thus there is no
\ndiscrimination against the woman insofar as she is not
\npermitted to prosecute her husband. A husband is not
\npermitted because the wife is not treated as an offender in the
\neye of law. The wife is not permitted as Section 198(1) read
\nwith Section 198(2) does not permit her to do so. In the
\nultimate analysis the law has meted out even-handed justice
\nto both of them in the matter of prosecuting each other or
\nsecuring the incarceration of each other. Thus no
\ndiscrimination has been practised in circumscribing the scope
\nof Section 198(2) and fashioning it so that the right to
\nprosecute the adulterer is restricted to the husband of the
\nadulteress but has not been extended to the wife of the
\nadulterer.\u201d18<\/p>\n

17 (1988) 2 SCC 72
\n18 Ibid. at page 76
\nPART C
\n15
\n13 The decision in Revathi is a reiteration of Sowmithri Vishnu. It applies
\nthe doctrine of equality and the prohibition against discrimination on the ground
\nof sex in a formalistic sense. The logic of the judgment is that since neither of the
\nspouses (man or woman) can prosecute the erring spouse, the provision does
\nnot discriminate on the ground of sex. Apart from reading equality in a narrow
\nconfine, the judgment does not deal with crucial aspects bearing on the
\nconstitutionality of the provision. Revathi, like Sowmithri Vishnu does not lay
\ndown the correct legal principle.
\nC Relics of the past
\n\u201cOur Massachusetts magistracy\u2026have not been bold to put in
\nforce the extremity of our righteous law against her. The
\npenalty thereof is death. But in their great mercy and
\ntenderness of heart they have doomed Mistress Prynne to
\nstand only a space of three hours on the platform of the
\npillory, and then and thereafter, for the remainder of her
\nnatural life to wear a mark of shame upon her bosom.\u201d19
\n14 Section 497 of the Indian Penal Code, 1860 makes adultery a punishable
\noffence against \u201cwhoever has sexual intercourse with a person who is and whom
\nhe knows or has reason to believe to be the wife of another man, without the
\nconsent or connivance of that man.\u201d It goes on to state that, \u201cin such case the
\nwife shall not be punishable as an abettor.\u201d The offence applies only to the man
\ncommitting adultery. A woman committing adultery is not considered to be an<\/p>\n

19 Nathaniel Hawthorne, The Scarlet Letter, Bantam Books (1850), at page 59
\nPART C
\n16
\n\u201cabettor\u201d to the offence. The power to prosecute for adultery rests only with the
\nhusband of the woman.
\nUnderstanding the gendered nature of Section 497 needs an inquiry into the
\norigins of the provision itself as well as the offence of adultery more broadly. The
\nhistory of adultery throws light upon disparate attitudes toward male and female
\ninfidelity, and reveals the double standard in law and morality that has been
\napplied to men and women.20
\n15 Throughout history, adultery has been regarded as an offence; it has been
\ntreated as a religious transgression, as a crime deserving harsh punishment, as
\na private wrong, or as a combination of these.21 The earliest recorded injunctions
\nagainst adultery are found in the ancient code of the Babylonian king
\nHammurabi, dating from circa 1750 B.C. The code prescribed that a married
\nwoman caught in adultery be bound to her lover and thrown into water so that
\nthey drown together.22 By contrast, Assyrian law considered adultery to be a
\nprivate wrong for which the husband or father of the woman committing adultery
\ncould seek compensation from her partner.23 English historian Faramerz
\nDabhoiwala notes that the primary purpose of these laws was to protect the
\nproperty rights of men:<\/p>\n

20 See David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008)
\n21 Ibid
\n22 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 10
\n23 Ibid, at page 11
\nPART C
\n17
\n\u201cIndeed, since the dawn of history every civilisation had
\nprescribed severe laws against at least some kind of sexual
\nimmorality. The oldest surviving legal codes (c.2100-1700
\nBCE), drawn up by the kings of Babylon made adultery
\npunishable by death and most other near Eastern and
\nclassical culture also treated it as a serious offence\u2026The
\nmain concern of such laws was usually to uphold the honour
\nand property rights of fathers, husbands and higher status
\ngroups\u2026\u201d24
\n16 In Ancient Greco-Roman societies, there existed a sexual double standard
\naccording to which adultery constituted a violation of a husband\u2019s exclusive
\nsexual access to his wife, for which the law allowed for acts of revenge.25 In 17
\nB.C., Emperor Augustus passed the Lex Julia de adulteriis coercendis, which
\nstipulated that a father was allowed to kill his daughter and her partner when
\ncaught committing adultery in his or her husband\u2019s house.26 While in the Judaic
\nbelief adultery merited death by stoning for both the adulteress and her partner,27
\nChristianity viewed adultery more as a moral and spiritual failure than as a public
\ncrime.28 The penalties of the Lex Julia were made more severe by Christian
\nemperors. Emperor Constantine, for instance, introduced the death penalty for
\nadultery, which allowed the husband the right to kill his wife if she committed
\nadultery.29 Under the Lex Julia, adultery was primarily a female offence, and the
\nlaw reflected the sentiments of upper-class Roman males.30<\/p>\n

24 Faramerz Dabhoiwala, The Origins of Sex: A History of the First Sexual Revolution (2012), at page 5
\n25 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
\n26 Vern Bullough, Medieval Concepts of Adultery, at page 7
\n27 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 27
\n28 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, Vol. 30, Journal of Family Law (1991), at
\npage 46
\n29 Vern Bullough, Medieval Concepts of Adultery, at page 7
\n30 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 27
\nPART C
\n18
\n17 Once monogamy came to be accepted as the norm in Britain between the
\nfourth and fifth centuries, adultery came to be recognized as a serious wrong that
\ninterfered with a husband\u2019s \u201crights\u201d over his wife.31 The imposition of criminal
\nsanctions on adultery was also largely based on ideas and beliefs about sexual
\nmorality which acquired the force of law in Christian Europe during the Middle
\nAges.32 The development of canon law in the twelfth century enshrined the
\nperception of adultery as a spiritual misdemeanour. In the sixteenth century,
\nfollowing the Reformation, adultery became a crucial issue because Protestants
\nplaced new emphasis on marriage as a linchpin of the social and moral order.33
\nSeveral prominent sixteenth century reformers, including Martin Luther and John
\nCalvin, argued that a marriage was irreparably damaged by infidelity, and they
\nadvocated divorce in such cases.34
\nConcerned with the \u201cmoral corruption\u201d prevalent in England since the
\nReformation, Puritans in the Massachusetts Bay Colony introduced the death
\npenalty for committing adultery.
\n35 The strict morality of the early English colonists
\nis reflected in the famous 1850 novel \u2018The Scarlet Letter\u2019 by Nathaniel
\nHawthorne, in which an unmarried woman who committed adultery and bore a
\nchild out of wedlock was made to wear the letter A (for adulterer) when she went
\nout in public; her lover was not so tagged, suggesting that women were punished<\/p>\n

31 Jeremy D. Weinstein, Adultery, Law, and the State: A History, Vol. 38, Hastings Law Journal (1986), at page 202;
\nR. Huebner, A History of Germanic Private Law (F. Philbrick trans. 1918)
\n32 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6
\n33 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
\n34 Ibid.
\n35 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 30
\nPART C
\n19
\nmore severely than men for adultery, especially when they had a child as
\nevidence.36
\n18 In 1650, England enacted the infamous Act for Suppressing the Detestable
\nSins of Incest, Adultery and Fornication, which introduced the death penalty for
\nsex with a married woman.37 The purpose of the Act was as follows:
\n\u201cFor the suppressing of the abominable and crying sins
\nof\u2026adultery\u2026 wherewith this Land is much defiled, and
\nAlmighty God highly displeased; be it enacted…That in case
\nany married woman shall\u2026be carnally known by any man
\n(other than her husband)\u2026as well the man as the
\nwoman\u2026shall suffer death.\u201d
\nThe Act was a culmination of long-standing moral concerns about sexual
\ntransgressions, sustained endeavours to regulate conjugal matters on a secular
\nplain, and a contemporaneous political agenda of socio-moral reform.38 It was
\nrepealed in 1660 during the Restoration. The common law, however, was still
\nconcerned with the effect of adultery by a married woman on inheritance and
\nproperty rights. It recognized the \u201cobvious danger of foisting spurious offspring
\nupon her unsuspecting husband and bringing an illegitimate heir into his
\nfamily.\u201d39 Accordingly, secular courts treated adultery as a private injury and a tort<\/p>\n

36 James R. Mellow, Hawthorne’s Divided Genius, The Wilson Quarterly (1982)
\n37 Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996).
\n38 Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Puritans and Revolutionaries: Essays
\nin Seventeenth-Century History Presented to Christopher Hill (Donald Pennington, Keith Thomas, eds.), at page 281
\n39 Charles E. Torcia, Wharton’s Criminal Law, Section 218, (1994) at page 528
\nPART C
\n20
\nfor criminal conversation was introduced in the late 17th century, which allowed
\nthe husband to sue his wife\u2019s lover for financial compensation.40
\n19 In 19th century Britain, married women were considered to be chattel of
\ntheir husbands in law, and female adultery was subjected to ostracism far worse
\nthan male adultery because of the problem it could cause for property inheritance
\nthrough illegitimate children.41 Consequently, many societies viewed chastity,
\ntogether with related virtues such as modesty, as more central components of a
\nwoman\u2019s honor and reputation than of a man\u2019s.42 The object of adultery laws was
\nnot to protect the bodily integrity of a woman, but to allow her husband to
\nexercise control over her sexuality, in order to ensure the purity of his own
\nbloodline. The killing of a man engaged in an adulterous act with one\u2019s wife was
\nconsidered to be manslaughter, and not murder.43 In R v Mawgridge,
\n44 Judge
\nHolt wrote that:
\n\u201c\u2026[A] man is taken in adultery with another man\u2019s wife, if the
\nhusband shall stab the adulterer, or knock out his brains, this
\nis bare manslaughter: for Jealousy is the Rage of a Man and
\nAdultery is the highest invasion of property.\u201d
\n(Emphasis supplied)
\n20 In his Commentaries on the Laws of England, William Blackstone wrote
\nthat under the common law, \u201cthe very being or legal existence of the woman<\/p>\n

40 J. E. Loftis, Congreve\u2019s Way of the World and Popular Criminal Literature, Studies in English Literature, 1500 \u2013
\n1900 36(3) (1996), at page 293
\n41 Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660\u20131800 (2009), at page 143
\n42 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 28
\n43 Blackstone\u2019s Commentaries on the Laws of England, Book IV (1778), at page 191-192
\n44 (1707) Kel. 119
\nPART C
\n21
\n[was] suspended during the marriage, or at least [was] incorporated and
\nconsolidated into that of the husband: under whose wing, protection and cover,
\nshe performe[d] everything.\u201d45 In return for support and protection, the wife owed
\nher husband \u201cconsortium\u201d of legal obligations, which included sexual
\nintercourse.46 Since adultery interfered with the husband’s exclusive entitlements,
\nit was considered to be the \u201chighest possible invasion of property,\u201d similar to
\ntheft.47 In fact, civil actions for adultery evolved from actions for enticing away a
\nservant from a master and thus depriving the master of the quasi-proprietary
\ninterest in his services.48
\nFaramerz Dabhoiwala notes that a man\u2019s wife was considered to be his property,
\nand that another man\u2019s \u201cunlawful copulation\u201d with her warranted punishment:
\n\u201c\u2026[T]he earliest English law codes, which date from this time,
\nevoke a society where women were bought and sold and
\nlived constantly under the guardianship of men. Even in
\ncases of consensual sex, its system of justice was mainly
\nconcerned with the compensation one man should pay to
\nanother for unlawful copulation with his female chattel.\u201d
\n21 When the IPC was being drafted, adultery was not a criminal offence in
\ncommon law. It was considered to be an ecclesiastical wrong \u201cleft to the feeble
\ncoercion of the Spiritual Court, according to the rules of Canon Law.\u201d49 Lord
\nThomas Babington Macaulay, Chairman of the First Law Commission of India<\/p>\n

45 William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages 442 445
\n46 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris
\nAshford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
\n47 R v. Mawgridge, (1707) Kel. 119
\n48 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris
\nAshford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
\n49 Blackstone\u2019s Commentaries on the Laws of England, Book IV (1778), at pages 64-65
\nPART C
\n22
\nand principal architect of the IPC, considered the possibility of criminalizing
\nadultery in India, and ultimately concluded that it would serve little purpose.50
\nAccording to Lord Macaulay, the possible benefits from an adultery offence could
\nbe better achieved through pecuniary compensation.51 Section 497 did not find a
\nplace in the first Draft Penal Code prepared by Lord Macaulay. On an appraisal
\nof the facts and opinions collected from all three Presidencies about the
\nfeasibility criminalizing adultery, he concluded in his Notes to the IPC that:
\n\u201c\u2026All the existing laws for the punishment of adultery are
\naltogether inefficacious for the purpose of preventing injured
\nhusbands of the higher classes from taking the law into their
\nown hands; secondly; that scarcely any native of higher
\nclasses ever has recourse to the courts of law in a case of
\nadultery for redress against either his wife, or her gallant;
\nthirdly, that the husbands who have recourse in case of
\nadultery to the Courts of law are generally poor men whose
\nwives have run away, that these husbands seldom have any
\ndelicate feelings about the intrigue, but think themselves
\ninjured by the elopement, that they consider wives as useful
\nmembers of their small households, that they generally
\ncomplain not of the wound given to their affections, not of the
\nstain on their honor , but of the loss of a menial whom they
\ncannot easily replace, and that generally their principal object
\nis that the women may be sent back.\u201d These things being
\nestablished, it seems to us that no advantage is to be
\nexpected from providing a punishment for adultery. We
\nthink it best to treat adultery merely as a civil injury.\u201d52<\/p>\n

(Emphasis supplied)
\n22 The Law Commissioners, in their Second Report on the Draft Penal Code,
\ndisagreed with Lord Macaulay\u2019s view. Placing heavy reliance upon the status of
\nwomen in India, they concluded that:<\/p>\n

50 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review
\n(2016), at page 52
\n51 Ibid.
\n52 Macaulay’s Draft Penal Code (1837), Note Q
\nPART C
\n23
\n\u201cWhile we think that the offence of adultery ought not to be
\nomitted from the code, we would limit its cognizance to
\nadultery committed with a married woman, and considering
\nthat there is much weight in the last remark in note Q,
\nregarding the condition of the women, in this country, in
\ndeference to it, we would render the male offender alone
\nliable to punishment. We would, however, put the parties
\naccused of adultery on trial \u201ctogether\u201d, and empower the
\nCourt in the event of their conviction to pronounce a decree of
\ndivorce against the guilty woman, if the husband sues for it, at
\nthe same time that her paramour is sentenced to punishment
\nby imprisonment or fine.\u201d53
\nThe Law Commissioners\u2019 decision to insert Section 497 into the IPC was rooted
\nin their concern about the possibility of the \u201cnatives\u201d resorting to illegal measures
\nto avenge the injury in cases of adultery:
\n\u201cThe backwardness of the natives to have recourse to the
\ncourts of redress in cases of adultery, [Colonel Sleeman]
\nasserts, \u201carises from the utter hopelessness on their part of
\never getting a conviction in our courts upon any evidence that
\nsuch cases admit of;\u201d that is to say, in courts in which the
\nMahommedan law is observed. \u201cThe rich man\u2026not only feels
\nthe assurance that he could not get a conviction, but dreads
\nthe disgrace of appearing publicly in one court after another,
\nto prove\u2026his own shame and his wife\u2019s dishonor. He has
\nrecourse to poison secretly, or with his wife\u2019s consent; and
\nshe will generally rather take it than be turned out into the
\nstreets a degraded outcast. The seducer escapes with
\nimpunity, he suffers nothing, while his poor victim suffers all
\nthat human nature is capable of enduring\u2026The silence of the
\nPenal Code will give still greater impunity to the seducers,
\nwhile their victims will, in three cases out of four, be
\nmurdered, or driven to commit suicide. Where husbands are
\nin the habit of poisoning their guilty wives from the want of
\nlegal means of redress, they will sometimes poison those who
\nare suspected upon insufficient grounds, and the innocent will
\nsuffer.\u201d54<\/p>\n

53 Second Report on the Indian Penal Code (1847), at pages 134-35, cited from, Law Commission of India, Fortysecond
\nReport: Indian Penal Code, at page 365
\n54 A Penal Code prepared by The Indian Law Commissioners (1838), The Second Report on the Indian Penal Code,
\nat page 74
\nPART C
\n24
\nSection 497 and Section 198 are seen to treat men and women unequally, as
\nwomen are not subject to prosecution for adultery, and women cannot prosecute
\ntheir husbands for adultery. Additionally, if there is \u201cconsent or connivance\u201d of the
\nhusband of a woman who has committed adultery, no offence can be
\nestablished. In its 42nd Report, the Law Commission of India considered the
\nlegislative history of Section 497 and the purported benefit of criminal sanctions
\nfor adultery. The Committee concluded that, \u201cthough some of us were personally
\ninclined to recommend repeal of the section, we think on the whole that the time
\nhas not yet come for making such a radical change in the existing position.\u201d55 It
\nrecommended that Section 497 be retained, but with a modification to make
\nwomen who commit adultery liable as well.
\n23 In its 156th Report, the Law Commission made a proposal which it believed
\nreflected the \u201c\u2018transformation\u2019 which the society has undergone,\u201d by suggesting
\nremoving the exemption from liability for women under Section 497.56 In 2003,
\nthe Justice Malimath Committee recommended that Section 497 be made
\ngender-neutral, by substituting the words of the provision with \u201cwhosoever has
\nsexual intercourse with the spouse of any other person is guilty of adultery.\u201d57
\nThe Committee supported earlier proposals to not repeal the offence, but to
\nequate liability for the sexes:
\n\u201cThe object of the Section is to preserve the sanctity of
\nmarriage. Society abhors marital infidelity. Therefore, there is
\nno reason for not meting out similar treatment to the wife who<\/p>\n

55 Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326
\n56 Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172
\n57 Report of the Committee on Reforms of Criminal Justice System (2003), at page 190
\nPART C
\n25
\nhas sexual intercourse with a man (other than her
\nhusband).\u201d58
\nNeither the recommendations of the Law Commission nor those of the Malimath
\nCommittee have been accepted by the Legislature. Though women are
\nexempted from prosecution under Section 497, the underlying notion upon which
\nthe provision rests, which conceives of women as property, is extremely harmful.
\nThe power to prosecute lies only with the husband (and not to the wife in cases
\nwhere her husband commits adultery), and whether the crime itself has been
\ncommitted depends on whether the husband provides \u201cconsent for the allegedly
\nadulterous act.\u201d
\n24 Women, therefore, occupy a liminal space in the law: they cannot be
\nprosecuted for committing adultery, nor can they be aggrieved by it, by virtue of
\ntheir status as their husband\u2019s property. Section 497 is also premised upon
\nsexual stereotypes that view women as being passive and devoid of sexual
\nagency. The notion that women are \u2018victims\u2019 of adultery and therefore require the
\nbeneficial exemption under Section 497 has been deeply criticized by feminist
\nscholars, who argue that such an understanding of the position of women is
\ndemeaning and fails to recognize them as equally autonomous individuals in
\nsociety.59 Effectively, Indian jurisprudence has interpreted the constitutional
\nguarantee of sex equality as a justification for differential treatment: to treat men<\/p>\n

58 Ibid.
\n59 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review
\n(2016), at page 63
\nPART C
\n26
\nand women differently is, ultimately, to act in women\u2019s interests.60 The status of
\nSection 497 as a \u201cspecial provision\u201d61 operating for the benefit of women,
\ntherefore, constitutes a paradigmatic example of benevolent patriarchy.
\n25 Throughout history, the law has failed to ask the woman question.62 It has
\nfailed to interrogate the generalizations or stereotypes about the nature,
\ncharacter and abilities of the sexes on which laws rest, and how these notions
\naffect women and their interaction with the law. A woman’s \u2018purity\u2019 and a man\u2019s
\nmarital \u2018entitlement\u2019 to her exclusive sexual possession may be reflective of the
\nantiquated social and sexual mores of the nineteenth century, but they cannot be
\nrecognized as being so today. It is not the \u201ccommon morality\u201d of the State at any
\ntime in history, but rather constitutional morality, which must guide the law. In any
\ndemocracy, constitutional morality requires the assurance of certain rights that
\nare indispensable for the free, equal, and dignified existence of all members of
\nsociety. A commitment to constitutional morality requires us to enforce the
\nconstitutional guarantees of equality before law, non-discrimination on account of
\nsex, and dignity, all of which are affected by the operation of Section 497.<\/p>\n

60 Brenda Cossman and Ratna Kapur, Subversive Sites: Feminist Engagements with Law in India (1996)
\n61 Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930
\n62 The \u2018Woman Question\u2019 was one of the great issues that occupied the middle of the nineteenth century, namely the
\nsocial purpose of women. It is used as a tool to enquire into the status of women in the law and how they interact
\nwith and are affected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard Law Review (1990)
\nPART D
\n27
\nD Across frontiers
\n26 The last few decades have been characterized by numerous countries
\naround the world taking measures to decriminalize the offence of adultery due to
\nthe gender discriminatory nature of adultery laws as well as on the ground that
\nthey violate the right to privacy. However, progressive action has primarily been
\ntaken on the ground that provisions penalising adultery are discriminatory against
\nwomen either patently on the face of the law or in their implementation. Reform
\ntowards achieving a more egalitarian society in practice has also been driven by
\nactive measures taken by the United Nations and other international human
\nrights organizations, where it has been emphasized that even seemingly genderneutral
\nprovisions criminalising adultery cast an unequal burden on women:63
\n\u201cGiven continued discrimination and inequalities faced by
\nwomen, including inferior roles attributed to them by
\npatriarchal and traditional attitudes, and power imbalances in
\ntheir relations with men, the mere fact of maintaining adultery
\nas a criminal offence, even when it applies to both women
\nand men, means in practice that women mainly will continue
\nto face extreme vulnerabilities, and violation of their human
\nrights to dignity, privacy and equality.\u201d
\nThe abolishing of adultery has been brought about in equal measure by
\nlegislatures and courts. When decisions have been handed down by the judiciary
\nacross the world, it has led to the creation of a rich body of transnational
\njurisprudence. This section will focus on a few select comparative decisions
\nemanating from the courts of those countries where the provision criminalizing
\nadultery has been struck down through judicial action. The decisions of these<\/p>\n

63 U N Working Group on Women\u2019s Human Rights: Report (18 October, 2012), available at:
\nhttp:\/\/newsarchive.ohchr.org\/EN\/NewsEvents\/Pages\/DisplayNews.aspxNewsID=12672&LangID=E
\nPART D
\n28
\ncourts reflect how the treatment of the law towards adultery has evolved with the
\npassage of time and in light of changing societal values.
\n27 In 2015, the South Korean Constitutional Court,64 by a majority of 7-2
\nstruck down Article 241 of the Criminal Law; a provision which criminalized
\nadultery with a term of imprisonment of two years as unconstitutional. In doing
\nso, South Korea joined a growing list of countries in Asia and indeed around the
\nworld that have taken the measure of effacing the offence of adultery from the
\nstatute books, considering evolving public values and societal trends. The
\nConstitutional Court had deliberated upon the legality of the provision four times
\npreviously65, but chose to strike it down when it came before it in 2015, with the
\nCourt\u2019s judgement acknowledging the shifting public perception of individual
\nrights in their private lives.
\nThe majority opinion of the Court was concurred with by five of the seven
\njudges66 who struck down the provision. The majority acknowledged that the
\ncriminal provision had a legitimate legislative purpose in intending \u201cto promote
\nthe marriage system based on good sexual culture and practice and monogamy
\nand to preserve marital fidelity between spouses.\u201d However, the Court sought to
\nstrike a balance between the legitimate interest of the legislature in promoting the<\/p>\n

64Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at
\nhttp:\/\/english.ccourt.go.kr\/cckhome\/eng\/decisions\/majordecisions\/majorDetail.do
\n65 Firstpost, South Korean court abolishes law that made adultery illegal, (February 26, 2015), available at
\nhttps:\/\/www.firstpost.com\/world\/south-korean-court-abolishes-law-saying-adultery-is-illegal-2122935.html
\n66 Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong, Justice Seo Ki-Seog and Justice
\nCho Yong-Ho (Adultery is Unconstitutional)
\nPART D
\n29
\ninstitution of marriage and marital fidelity vis-\u00e0-vis the fundamental right of an
\nindividual to self-determination, which included sexual-self-determination, and
\nwas guaranteed under Article 10 of their Constitution.67 The Court held:
\n\u201cThe right to self-determination connotes the right to sexual
\nself-determination that is the freedom to choose sexual
\nactivities and partners, implying that the provision at issue
\nrestricts the right to sexual self-determination of individuals. In
\naddition, the provision at Issue also restricts the right to
\nprivacy protected under Article 17 of the Constitution in that it
\nrestricts activities arising out of sexual life belonging to the
\nintimate private domain.\u201d
\nThe Court used the test of least restrictiveness, and began by acknowledging
\nthat there no longer existed public consensus on the criminalization of adultery,
\nwith the societal structure having changed from holding traditional family values
\nand a typeset role of family members to sexual views driven by liberal thought
\nand individualism. While recognizing that marital infidelity is immoral and
\nunethical, the Court stated that love and sexual life were intimate concerns, and
\nthey should not be made subject to criminal law. Commenting on the balance
\nbetween an individual\u2019s sexual autonomy vis-\u00e0-vis societal morality, the Court
\nremarked:
\n\u201c\u2026the society is changing into one where the private interest
\nof sexual autonomy is put before the social interest of sexual
\nmorality and families from the perspective of dignity and
\nhappiness of individuals.\u201d68<\/p>\n

67 Article 10 of the South Korean Constitution \u201cAll citizens are assured of human worth and dignity and have the right
\nto pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human
\nrights of individuals.\u201d
\n68 Supra, note 64, Part V- A (3)(1) (\u2018Change in Public\u2019s Legal Awareness\u2019 under the head of \u2018Appropriateness of
\nMeans and Least Restrictiveness\u2019)
\nPART D
\n30
\nNext, the Court analysed the appropriateness and effectiveness of criminal
\npunishment in curbing the offence of adultery. Addressing the question of
\nwhether adultery should be regulated, the Court stated that modern criminal law
\ndictated that the State should not seek to interfere in an act that is not socially
\nharmful or deleterious to legal interests, simply because it is repugnant to
\nmorality. Moreover, it held that the State had no business in seeking to control
\nan individual\u2019s actions which were within the sphere of his or her constitutionally
\nprotected rights of privacy and self-determination.
\nMoving on to the effectiveness of the provision at hand, the Court remarked that
\ncriminalizing adultery did not help save a failing marriage. The Court remarked
\nthat it was obvious that once a spouse was accused of adultery, the
\nconsequence was generally intensified spousal conflict as opposed to the
\npossibility of family harmony:
\n\u201cExisting families face breakdown with the invoking of the
\nright to file an accusation. Even after cancellation of the
\naccusation, it is difficult to hope for emotional recovery
\nbetween spouses. Therefore, the adultery crime can no
\nlonger contribute to protecting the marital system or family
\norder. Furthermore, there is little possibility that a person who
\nwas punished for adultery would remarry the spouse who had
\nmade an accusation against himself\/herself. It is neither
\npossible to protect harmonious family order because of the
\nintensified conflict between spouses in the process of criminal
\npunishment of adultery.\u201d69<\/p>\n

69 Supra, note 64, Part V- A (3)(3) (\u2018Effectiveness of Criminal Punishment\u2019, under the head of \u2018Appropriateness of
\nMeans and Least Restrictiveness\u2019)
\nPART D
\n31
\nAddressing the concern that an abolition of a penal consequence would result in
\n\u201cchaos in sexual morality\u201d or an increase of divorce due to adultery, the Court
\nconcluded that there was no data at all to support these claims in countries
\nwhere adultery is repealed, stating:
\n\u201cRather, the degree of social condemnation for adultery has
\nbeen reduced due to the social trend to value the right to
\nsexual self-determination and the changed recognition on
\nsex, despite of the punishment of adultery. Accordingly, it is
\nhard to anticipate a general and special deterrence effect for
\nadultery from the perspective of criminal policy as it loses the
\nfunction of regulating behaviour.\u201d70
\nThe Court also analysed the argument that adultery provisions protected women:
\n\u201cIt is true that the existence of adultery crimes in the past
\nKorean society served to protect women. Women were
\nsocially and economically underprivileged, and acts of
\nadultery were mainly committed by men. Therefore, the
\nexistence of an adultery crime acted as psychological
\ndeterrence for men, and, furthermore, enabled female
\nspouses to receive payment of compensation for grief or
\ndivided assets from the male spouse on the condition of
\ncancelling the adultery accusation.
\nHowever, the changes of our society diluted the justification of
\ncriminal punishment of adultery. Above all, as women\u2019s
\nearning power and economic capabilities have improved with
\nmore active social and economic activities, the premise that
\nwomen are the economically disadvantaged does not apply to
\nall married couples.\u201d
\nFinally, the Court concluded its analysis by holding that the interests of enforcing
\nmonogamy, protecting marriage and promoting marital fidelity, balanced against<\/p>\n

70 Ibid.
\nPART D
\n32
\nthe interference of the State in the rights to privacy and sexual autonomy were
\nclearly excessive and therefore failed the test of least restrictiveness.71
\n28 In 2007, the Ugandan Constitutional Court in Law Advocacy for Women
\nin Uganda v Attorney General of Uganda72, was called upon to rule on the
\nconstitutionality of Section 154 of the Penal Code, on, the grounds that it violated
\nvarious protections granted by the Ugandan Constitution and meted out
\ndiscriminatory treatment between women and men. The law as it stood allowed a
\nmarried man to have a sexual relationship with an unmarried woman. Moreover,
\nonly a man could be guilty of the offence of adultery when he had sexual
\nintercourse with a married woman. The same provision, however, penalized a
\nmarried woman who engaged in a sexual relationship with an unmarried or
\nmarried man outside of the marriage. The penalties for the offence also
\nprescribed a much stricter punishment for women as compared to their male
\ncounterparts.73 The challenge was brought primarily under Article 21 of the
\nUgandan Constitution, which guaranteed equality under the law, Article 24 which
\nmandates respect for human dignity and protection from inhuman treatment and
\nArticle 33(1), which protected the rights of women under the Constitution. 74<\/p>\n

71 Supra, note 64, Part V- A (5) (\u2018Balance of Interests & Conclusion\u2019)
\n72 Constitutional Petitions Nos. 13 \/05 \/& 05 \/06 in Law Advocacy for Women in Uganda v. Attorney General of
\nUganda, (2007) UGCC 1 (5 April, 2007), available at<\/p>\n

73 Reuters: \u2018Uganda scraps “sexist” adultery law\u2019, (April 5, 2007), available at
\nhttps:\/\/www.reuters.com\/article\/us-uganda-adultery\/uganda-scraps-sexist-adultery-law-idUSL0510814320070405
\n74 Constitutional Petitions Nos. 13 \/05 \/& 05 \/06 in Law Advocacy for Women in Uganda v. Attorney General of
\nUganda, [2007] UGCC 1 (5 April, 2007), available at<\/p>\n

PART D
\n33
\nThe Respondent prayed that the Court consider making the provision of adultery
\nequal in its treatment of men and women, instead of striking it down completely.
\nHowever, in its holding, the Court denied this request, holding it could not
\nprescribe a punishment under penal law to change the statute. The Court held
\nthat Section 154 of the Penal Code was wholly unconstitutional as being violative
\nof the provisions of the Constitution, and remarked:
\n\u201c…the respondent did not point out to us areas that his Court
\ncan or should modify and adapt to bring them in conformity
\nwith the provisions of the Constitution. The section is a penal
\none and this Court in our considered opinion cannot create a
\nsentence that the courts can impose on adulterous spouses.
\nConsequently, it is our finding that the provision of section
\n154 of the Penal Code Act is inconsistent with the stated
\nprovisions of the Constitution and it is void.\u201d75
\n29 In 2015, in DE v RH,
\n76 the Constitutional Court of South Africa held that an
\naggrieved spouse could no longer seek damages against a third party in cases of
\nadultery. Madlanga J poignantly remarked on the preservation of marriage:
\n\u201c\u2026although marriage is \u2018a human institution which is
\nregulated by law and protected by the Constitution and which,
\nin turn, creates genuine legal duties . . . Its essence . . .
\nconsists in the readiness, founded in morals, of the parties to
\nthe marriage to create and to maintain it\u2019. If the parties to the
\nmarriage have lost that moral commitment, the marriage will
\nfail and punishment meted out to a third party is unlikely to
\nchange that.\u201d<\/p>\n

The decisions of the US Supreme Court bearing on the issue of privacy have
\nbeen analysed in an incisive article, titled \u201cFor Better or for Worse: Adultery,
\nCrime and The Constitution\u201d78, by Martin Siegel. He presents three ways in which
\nadultery implicates the right to privacy. The first is that adultery must be viewed
\nas a constitutionally protected marital choice. Second, that certain adulterous
\nrelationships are protected by the freedom of association and finally, that adultery
\nconstitutes an action which is protected by sexual privacy.79 A brief study is also
\nundertaken on whether action penalizing adultery constitutes a legitimate interest
\nof the State.
\nThe first privacy interest in adultery is the right to marital choice. The U.S.
\nSupreme Court has upheld the values of \u2018fundamental liberty\u2019, \u2018freedom of
\nchoice\u2019 and \u2018the \u2018right to privacy\u2019 in marriage. With this jurisprudence, the author
\nargues, it would be strange if a decision to commit adultery is not a treated as a
\nmatter of marriage and family life as expressed in Cleveland Board80, \u2018an act
\noccurring in marriage\u2019, as held in Griswold81 or a \u2018matter of marriage and family
\nlife\u2019 as elucidated in Carey.<\/p>\n

78 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
\n45
\n79 Ibid, at page 46
\n80 Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973)
\n81 Griswold, 381 U.S. 1 (1967)
\n82 Carey, v. Population Serv. Int\u2019l, 431 U.S. 678
\nPART D
\n35
\nSiegel posits that a decision to commit adultery is a decision \u2018relating to marriage
\nand family relationships\u2019 and therefore, falls within the domain of protected
\nprivate choices. He observes that the essence of the offence is in fact the
\nmarried status of one of the actors, and the mere fact that the commission of the
\nact consisted of a mere sexual act or a series of them is legally irrelevant. If the
\nargument that adultery, though unconventional, is an act related to marriage and
\ntherefore fundamentally private is accepted, then it deserves equal protection.
\nSiegel cites Laurence Tribe, on accepting the \u2018unconventional variants\u2019 that also
\nform a part of privacy:
\n\u201cOught the \u201cright to marriage,\u201d as elucidated by Griswold,
\nLoving v. Virginia, Zablocki, Boddie v. Connecticut and
\nMoore, also include marriage’s “unconventional variants”-in
\nthis case the adulterous union\u201d83
\nThe mere fact that adultery is considered unconventional in society does not
\njustify depriving it of privacy protection. The freedom of making choices also
\nencompasses the freedom of making an \u2018unpopular\u2019 choice. This was articulated
\nby Justice Blackmun in his dissent in Hardwick84:
\n\u201cA necessary corollary of giving individuals freedom to choose
\nhow to conduct their lives is acceptance of the fact that
\ndifferent individuals will make different choices.\u201d85
\nSiegel concludes that the privacy protections afforded to marriage must extend to
\nall choices made within the marriage:<\/p>\n

83 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
\n70
\n84 Hardwick, 478 U.S.205
\n85 Ibid, at page 206
\nPART D
\n36
\n\u201cThe complexity and diversity among marriages make it all
\nthe more important that the privacy associated with that
\ninstitution be construed to include all kinds of marriages,
\nsexually exclusive as well as open, \u2018good\u2019, as well as \u2018bad\u2019.\u201d86
\nSiegel then proceeds to examine the next privacy interest in adultery, that of the
\nright to association. The right to freedom of association he states is \u2018a close
\nconstitutional relative of privacy\u201987
\n, and they often interact in an intertwined
\nmanner. Siegel proceeds to explain that adultery must not simply be looked at as
\nan act of consensual adult sexual activity, as sexual activity may simply be one
\nelement in a continuum of interactions between people:
\n\u201cSexual activity may be preliminary or incidental to a
\ndeveloping association, or it may be its final culmination and
\nsolidification. In either case, it is simply one more element of
\nthe relationship. Two people may have sex upon first
\nmeeting. In this case, associational interests seem less
\nimportant, although “loveless encounters are sometimes
\nprerequisites for genuine love relationships; to forbid the
\nformer is, therefore, to inhibit the latter.”‘ 88
\nNext, Siegel examines the plausible protection of adultery through the lens of the
\nfreedom of expression. Since the act of engaging in sexual activity can be
\ninterpreted as being expressive, Siegel claims adultery might also implicate First
\nAmendment rights. In support he cites a body of case law89,where courts have
\nheld that First Amendment rights are not limited to merely verbal expression but
\nalso encompass the right to \u2018expressive association\u2019.<\/p>\n

86 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
\n74
\n87 Ibid, at page 77
\n88 Ibid, at, page 78
\n89 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)
\nPART D
\n37
\nIn concluding his section on the right to associate, Siegel warns against the
\ndangers of classifying adultery solely as a sexual activity, as doing so would be
\nakin to protecting a part of the relationship and criminalizing the other. This would
\nbe manifestly unjust:
\n\u201cIt is difficult, both theoretically and practically, to single out
\nthe sexual contacts two people may have from the rest of
\ntheir relationship- to criminalize the one and constitutionally
\nprotect as fundamental the other\u201d. 90
\nLastly, Siegel discusses the connection between adultery and the right to sexual
\nprivacy. It is accepted that a right to privacy safeguards an individual\u2019s deeply
\npersonal choices which includes a recognition accorded to the inherently private
\nnature of all consensual adult sexual activity.91 This understanding of sexual
\nprivacy found favour with the U.S. Supreme Court, which in Thornburgh v
\nAmerican College of Obstetricians and Gynaecologists92 quoted Charles
\nFried with approval:
\n\u201cThe concept of privacy embodies the moral fact that a
\nperson belongs to himself and not to others nor to society as
\na whole.\u201d93
\nSiegel reiterates the underlying intangible value of adult consensual sexual
\nactivity:<\/p>\n

90 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
\n78
\n91 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
\n82
\n92 Thornburgh v. American College of Obstetricians and Gynaecologists, 476 U.S. 747 (1986)
\n93 Ibid, at Page 777
\nPART D
\n38
\n\u201cThe real importance of sexuality to humans, more so in
\ntoday’s world of effective birth control than ever, lies in the
\npossibilities for self-realization and definition inherent in
\nsexual choices. Sexual experience offers \u201cselftranscendence,
\nexpression of private fantasy, release of inner
\ntensions, and meaningful and acceptable expression of
\nregressive desires to be again the free child – unafraid to lose
\ncontrol, playful, vulnerable, spontaneous, sensually loved.\u201d94
\nReflecting on the relationship between marital privacy and associational freedom,
\nSpiegel remarks the \u201cheterogeneity of experience\u201d, resulting in a variety of
\nchoices, necessarily include the adulterous union which must be protected since
\nit is unrealistic to expect all individuals to conform to society\u2019s idea of sexuality:
\n\u201cBecause sex is so much a part of our personhood, we should
\nnot expect that people different in so many other ways will be
\nidentical sexually. For some, adultery is a cruel betrayal, while
\nfor others it is just comeuppance for years of spousal neglect.
\nIn some marriages, sex is the epitome of commitment, while
\nin others spouses jointly and joyfully dispense with sexual
\nmonogamy.\u201d95
\nIn concluding the author states that the foregoing three-layered analysis left no
\nroom for doubt that adultery was a matter of marriage. It therefore deserved to be
\nprotected like all other affairs occurring in marriage and implicated routine
\nprivacy-based freedoms, and it was imperative to treat is as such. Spiegel
\nconcludes by quoting the U.S. Supreme Court in Eisenstadt v Braid, on the
\nimportance of protecting the power to make a \u2018bad\u2019 choice in a marriage:
\n\u201cA marriage’s privacy and autonomy are the best routes to
\nsafeguarding liberty and pluralism. This is no less true when<\/p>\n

94 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
\nat page 85
\n95 Ibid, at Page 86
\nPART D
\n39
\nthe power to choose, as it inevitably will, results in bad
\nchoices. It is a confidence in nothing less than the theory
\nunderscoring our entire political order: Our system of
\ngovernment requires that we have faith in the ability of the
\nindividual to decide wisely, if only he is fully appraised of the
\nmerits of the controversy.\u201d96
\nWhile acknowledging the interest that the State has in preserving the institution
\nof marriage, Siegel precisely points out the inefficacy of attaching criminal
\nsanctions to adultery in the following words:
\n\u201cEven if we accept that a state is trying to foster the interests
\nof specific deceived spouses by its laws criminalizing
\nadultery, it is impossible to believe that a criminal penalty
\nimposed on one of the spouses would somehow benefit a
\nmarriage instead of representing the final nail in its coffin. And
\nif deterrence of adultery is the goal, then the state’s failure to
\narrest and prosecute offenders has long since removed any
\nfear of legal sanction.\u201d97
\nDeborah L Rhode in her book titled \u201cAdultery\u201d argues that \u201cintermittent
\nidiosyncratic invocations of adultery prohibitions do little to enforce marital vows
\nor reinforce confidence in the rule of law. There are better ways to signal respect
\nfor the institution of marriage and better uses of law enforcement than policing
\nprivate, consensual sexual activity.\u201d98<\/p>\n

96 Eisenstadt v. Baird , 405 U.S. 438, 457 (1972)
\n97 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
\n89
\n98 Deborah Rhode, Adultery: Infidelity and the Law, (Harvard University Press, 2016)
\nPART E
\n40
\nE Confronting patriarchy
\n\u201cNorms and ideals arise from the yearning that it is an
\nexpression of freedom: it does not have to be this way, it
\ncould be otherwise.\u201d99
\n30 The petitioner urged that (i) The full realisation of the ideal of equality
\nenshrined in Article 14 of the Constitution ought to be the endeavour of this
\nCourt; (ii) the operation of Section 497 is a denial of equality to women in
\nmarriage; and (iii) the provision is manifestly arbitrary and amounts to a violation
\nof the constitutional guarantee of substantive equality.
\nThe act which constitutes the offence under Section 497 of the Penal Code is a
\nman engaging in sexual intercourse with a woman who is the \u201cwife of another
\nman\u201d. For the offence to arise, the man who engages in sexual intercourse must
\neither know or have reason to believe that the woman is married. Though a man
\nhas engaged in sexual intercourse with a woman who is married, the offence of
\nadultery does not come into being where he did so with the consent or
\nconnivance of her husband.
\nThese ingredients of Section 497 lay bare several features which bear on the
\nchallenge to its validity under Article 14. The fact that the sexual relationship
\nbetween a man and a woman is consensual is of no significance to the offence, if
\nthe ingredients of the offence are established. What the legislature has<\/p>\n

99 Iris Marion Young, Justice and the Politics of Difference, Princeton University Press, 1990
\nPART E
\n41
\nconstituted as a criminal offence is the act of sexual intercourse between a man
\nand a woman who is \u201cthe wife of another man\u201d. No offence exists where a man
\nwho has a subsisting marital relationship engages in sexual intercourse with a
\nsingle woman. Though adultery is considered to be an offence relating to
\nmarriage, the legislature did not penalise sexual intercourse between a married
\nman and a single woman. Even though the man in such a case has a spouse,
\nthis is considered to be of no legal relevance to defining the scope of the offence.
\nThat is because the provision proceeds on the notion that the woman is but a
\nchattel; the property of her husband. The fact that he is engaging in a sexual
\nrelationship outside marriage is of no consequence to the law. The woman with
\nwhom he is in marriage has no voice of her own, no agency to complain. If the
\nwoman who is involved in the sexual act is not married, the law treats it with
\nunconcern. The premise of the law is that if a woman is not the property of a
\nmarried man, her act would not be deemed to be \u2018adulterous\u2019, by definition.
\n31 The essence of the offence is that a man has engaged in an act of sexual
\nintercourse with the wife of another man. But if the man to whom she is married
\nwere to consent or even to connive at the sexual relationship, the offence of
\nadultery would not be established. For, in the eyes of law, in such a case it is for
\nthe man in the marital relationship to decide whether to agree to his spouse
\nengaging in a sexual act with another. Indeed, even if the two men (the spouse
\nof the woman and the man with whom she engages in a sexual act) were to
\nconnive, the offence of adultery would not be made out.
\nPART E
\n42
\n32 Section 497 is destructive of and deprives a woman of her agency,
\nautonomy and dignity. If the ostensible object of the law is to protect the
\n\u2018institution of marriage\u2019, it provides no justification for not recognising the agency
\nof a woman whose spouse is engaged in a sexual relationship outside of
\nmarriage. She can neither complain nor is the fact that she is in a marital
\nrelationship with a man of any significance to the ingredients of the offence. The
\nlaw also deprives the married woman who has engaged in a sexual act with
\nanother man, of her agency. She is treated as the property of her husband. That
\nis why no offence of adultery would be made out if her husband were to consent
\nto her sexual relationship outside marriage. Worse still, if the spouse of the
\nwoman were to connive with the person with whom she has engaged in sexual
\nintercourse, the law would blink. Section 497 is thus founded on the notion that a
\nwoman by entering upon marriage loses, so to speak, her voice, autonomy and
\nagency. Manifest arbitrariness is writ large on the provision.
\n33 The test of manifest arbitrariness is rooted in Indian jurisprudence. In E P
\nRoyappa v State of Tamil Nadu100
\n, Justice Bhagwati characterised equality as a
\n\u201cdynamic construct\u201d which is contrary to arbitrariness:
\n\u201c85\u2026Now, what is the content and reach of this great
\nequalising principle It is a founding faith, to use the words of
\nBose. J., \u201ca way of life\u201d, and it must not be subjected to a
\nnarrow pedantic or lexicographic approach. We cannot
\ncountenance any attempt to truncate its all-embracing scope
\nand meaning, for to do so would be to violate its activist
\nmagnitude. Equality is a dynamic concept with many
\naspects and dimensions and it cannot be \u201ccribbed,<\/p>\n

100 (1974) 4 SCC 3
\nPART E
\n43
\ncabined and confined\u201d within traditional and doctrinaire
\nlimits. From a positivistic point of view, equality is
\nantithetic to arbitrariness. In fact equality and
\narbitrariness are sworn enemies; one belongs to the rule
\nof law in a republic while the other, to the whim and
\ncaprice of an absolute monarch. Where an act is
\narbitrary, it is implicit in it that it is unequal both
\naccording to political logic and constitutional law and is
\ntherefore violative of Article 14\u2026\u201d101<\/p>\n

(Emphasis supplied)
\nThe Constitution Bench in Shayara Bano v Union of India102 held the practice of
\nTriple Talaq to be unconstitutional. Justice Rohinton Nariman, in his concurring
\nopinion, applied the test of manifest arbitrariness to hold that the practice does
\nnot pass constitutional muster:
\n\u201c87. The thread of reasonableness runs through the
\nentire fundamental rights chapter. What is manifestly
\narbitrary is obviously unreasonable and being contrary to
\nthe rule of law, would violate Article 14. Further, there is an
\napparent contradiction in the three-Judge Bench decision
\nin McDowell [State of A.P. v. McDowell and Co., (1996) 3
\nSCC 709] when it is said that a constitutional challenge can
\nsucceed on the ground that a law is \u201cdisproportionate,
\nexcessive or unreasonable\u201d, yet such challenge would fail on
\nthe very ground of the law being \u201cunreasonable, unnecessary
\nor unwarranted\u201d. The arbitrariness doctrine when applied to
\nlegislation obviously would not involve the latter challenge but
\nwould only involve a law being disproportionate, excessive or
\notherwise being manifestly unreasonable. All the aforesaid
\ngrounds, therefore, do not seek to differentiate between State
\naction in its various forms, all of which are interdicted if they
\nfall foul of the fundamental rights guaranteed to persons and
\ncitizens in Part III of the Constitution.\u201d
\n103<\/p>\n

(Emphasis supplied)<\/p>\n

101 Ibid. at page 38
\n102 (2017) 9 SCC 1
\n103 Ibid. at pages 91-92
\nPART E
\n44
\nOn the application of the test of manifest arbitrariness to invalidate legislation, the
\nlearned Judge held thus:
\n\u201c 101\u2026there is no rational distinction between the two types
\nof legislation when it comes to this ground of challenge under
\nArticle 14. The test of manifest arbitrariness, therefore, as laid
\ndown in the aforesaid judgments would apply to invalidate
\nlegislation as well as subordinate legislation under Article 14.
\nManifest arbitrariness, therefore, must be something done by
\nthe legislature capriciously, irrationally and\/or without
\nadequate determining principle. Also, when something is
\ndone which is excessive and disproportionate, such
\nlegislation would be manifestly arbitrary. We are, therefore, of
\nthe view that arbitrariness in the sense of manifest
\narbitrariness as pointed out by us above would apply to
\nnegate legislation as well under Article 14.\u201d104
\n34 The decision in Shayara Bano, holds that legislation or state action which
\nis manifestly arbitrary would have elements of caprice and irrationality and would
\nbe characterized by the lack of an adequately determining principle. An
\n\u201cadequately determining principle\u201d is a principle which is in consonance with
\nconstitutional values. With respect to criminal legislation, the principle which
\ndetermines the \u201cact\u201d that is criminalized as well as the persons who may be held
\ncriminally culpable, must be tested on the anvil of constitutionality. The principle
\nmust not be determined by majoritarian notions of morality which are at odds with
\nconstitutional morality.<\/p>\n

104 Ibid. at page 99
\nPART E
\n45
\nIn Navtej Singh Johar v Union of India, (\u201cNavtej\u201d)
\n105 Justice Indu Malhotra
\nemphasized the need for a \u201csound\u201d or \u201crational principle\u201d underlying a criminal
\nprovision:
\n\u201c \u2026Section 377 insofar as it criminalises consensual sexual
\nacts between adults in private, is not based on any sound or
\nrational principle\u2026
\nFurther, the phrase \u201ccarnal intercourse against the order of
\nnature\u201d in Section 377 as a determining principle in a penal
\nprovision, is too open-ended, giving way to the scope for
\nmisuse against members of the LGBT community.\u201d
\n35 The hypothesis which forms the basis of the law on adultery is the
\nsubsistence of a patriarchal order. Section 497 is based on a notion of morality
\nwhich fails to accord with the values on which the Constitution is founded. The
\nfreedoms which the Constitution guarantees inhere in men and women alike. In
\nenacting Section 497, the legislature made an ostensible effort to protect the
\ninstitution of marriage. \u2018Ostensible\u2019 it is, because the provision postulates a
\nnotion of marriage which subverts the equality of spouses. Marriage in a
\nconstitutional regime is founded on the equality of and between spouses. Each
\nof them is entitled to the same liberty which Part III guarantees. Each of them is
\nentitled to take decisions in accordance with his and her conscience and each
\nmust have the ability to pursue the human desire for fulfilment. Section 497 is
\nbased on the understanding that marriage submerges the identity of the woman.
\nIt is based on a notion of marital subordination. In recognising, accepting and
\nenforcing these notions, Section 497 is inconsistent with the ethos of the
\nConstitution. Section 497 treats a woman as but a possession of her spouse. The<\/p>\n

105 Writ Petition (Criminal) No. 76 OF 2016
\nPART E
\n46
\nessential values on which the Constitution is founded \u2013 liberty, dignity and
\nequality \u2013 cannot allow such a view of marriage. Section 497 suffers from
\nmanifest arbitrariness.
\n36 While engrafting the provision into Chapter XX of the Penal Code \u2013 \u201cof
\noffences relating to marriage\u201d \u2013 the legislature has based the offence on an
\nimplicit assumption about marriage. The notion which the law propounds and to
\nwhich it imposes the sanctions of penal law is that the marital tie subordinates
\nthe role and position of the woman. In that view of marriage, the woman is bereft
\nof the ability to decide, to make choices and give free expression to her
\npersonality. Human sexuality is an essential aspect of identity. Choices in
\nmatters of sexuality are reflective of the human desire for expression. Sexuality
\ncannot be construed purely as a physiological attribute. In its associational
\nattributes, it links up with the human desire to be intimate with a person of one\u2019s
\nchoice. Sharing of physical intimacies is a reflection of choice. In allowing
\nindividuals to make those choices in a consensual sphere, the Constitution
\nacknowledges that even in the most private of zones, the individual must have
\nthe ability to make essential decisions. Sexuality cannot be dis-associated from
\nthe human personality. For, to be human involves the ability to fulfil sexual
\ndesires in the pursuit of happiness. Autonomy in matters of sexuality is thus
\nintrinsic to a dignified human existence. Human dignity both recognises and
\nprotects the autonomy of the individual in making sexual choices. The sexual
\nchoices of an individual cannot obviously be imposed on others in society and
\nPART E
\n47
\nare premised on a voluntary acceptance by consenting parties. Section 497
\ndenudes the woman of the ability to make these fundamental choices, in
\npostulating that it is only the man in a marital relationship who can consent to his
\nspouse having sexual intercourse with another. Section 497 disregards the
\nsexual autonomy which every woman possesses as a necessary condition of her
\nexistence. Far from being an equal partner in an equal relationship, she is
\nsubjugated entirely to the will of her spouse. The provision is proffered by the
\nlegislature as an effort to protect the institution of marriage. But it proceeds on a
\nnotion of marriage which is one sided and which denies agency to the woman in
\na marital tie. The ability to make choices within marriage and on every aspect
\nconcerning it is a facet of human liberty and dignity which the Constitution
\nprotects. In depriving the woman of that ability and recognising it in the man
\nalone, Section 497 fails to meet the essence of substantive equality in its
\napplication to marriage. Equality of rights and entitlements between parties to a
\nmarriage is crucial to preserve the values of the Constitution. Section 497
\noffends that substantive sense of equality and is violative of Article 14.
\n37 The procedural law which has been enacted in Section 198 of the Code of
\nCriminal Procedure 1973 re-enforces the stereotypes implicit in Section 497.
\nCognizance of an offence under Chapter XX of the Penal Code can be taken by
\na Court only upon a complaint of a person aggrieved. In the case of an offence
\npunishable under Section 497, only the husband of the woman is deemed to be
\naggrieved by the offence. In any event, once the provisions of Section 497 are
\nPART E
\n48
\nheld to offend the fundamental rights, the procedure engrafted in Section 198 will
\ncease to have any practical relevance.
\n38 Section 497 amounts to a denial of substantive equality. The decisions in
\nSowmithri and Revathi espoused a formal notion of equality, which is contrary
\nto the constitutional vision of a just social order. Justness postulates equality. In
\nconsonance with constitutional morality, substantive equality is \u201cdirected at
\neliminating individual, institutional and systemic discrimination against
\ndisadvantaged groups which effectively undermines their full and equal social,
\neconomic, political and cultural participation in society.\u201d106 To move away from a
\nformalistic notion of equality which disregards social realities, the Court must take
\ninto account the impact of the rule or provision in the lives of citizens.
\nThe primary enquiry to be undertaken by the Court towards the realisation of
\nsubstantive equality is to determine whether the provision contributes to the
\nsubordination of a disadvantaged group of individuals.107 The disadvantage must
\nbe addressed not by treating a woman as \u2018weak\u2019 but by construing her
\nentitlement to an equal citizenship. The former legitimizes patronising attitudes
\ntowards women. The latter links true equality to the realisation of dignity. The
\nfocus of such an approach is not simply on equal treatment under the law, but<\/p>\n

106 Kathy Lahey, Feminist Theories of (In)equality, in Equality and Judicial Nuetrality (S.Martin and K.Mahoney (eds.)
\n(1987)
\n107 Ratna Kapur On Woman, Equality and the Constitution: Through the Looking Glass of Feminism in Gender and
\nPolitics in India (Nivedita Menon ed.) (1993)
\nPART E
\n49
\nrather on the real impact of the legislation.108 Thus, Section 497 has to be
\nexamined in the light of existing social structures which enforce the position of a
\nwoman as an unequal participant in a marriage.
\nCatherine Mackinnon implores us to look more critically at the reality of this
\nfamily sphere, termed \u2018\u2018personal,\u2019\u2019 and view the family as a \u201ccrucible of women\u2019s
\nunequal status and subordinate treatment sexually, physically, economically, and
\ncivilly.\u201d109
\nIn a social order which has enforced patriarchal notions of sexuality
\nupon women and which treats them as subordinate to their spouses in
\nheterosexual marriages, Section 497 perpetuates an already existing inequality.
\n39 Facially, the law may be construed to operate as an exemption from
\ncriminal sanctions. However, when viewed in the context of a social structure
\nwhich considers the husband as the owner of the wife\u2019s sexuality, the law
\nperpetuates a deeply entrenched patriarchal order. The true realisation of the
\nsubstantive content of equality must entail an overhaul of these social structures.
\nWhen all visible and invisible forms of inequality- social, cultural, economic,
\npolitical or sexual- are recognised and obliterated; a truly egalitarian existence
\ncan be imagined.<\/p>\n

108 Maureen Maloney, An Analysis of Direct Taxes in India: A Feminist Perspective, Journal of the Indian Law Institute
\n(1988)
\n109 Catherine A Mackinnon, Sex equality under the Constitution of India: Problems, prospects, and \u2018personal laws\u2019,
\nOxford University Press and New York University School of Law (2006)
\nPART F
\n50
\nF \u2018The Good Wife\u2019
\nArticle 15 of the Constitution reads thus:
\n\u201c15. (1) The State shall not discriminate against any citizen on
\ngrounds only of religion, race, caste, sex, place of birth or any
\nof them.\u201d
\n(Emphasis supplied)
\n40 Article 15 prohibits the State from discriminating on grounds only of sex.
\nThe Petitioners contend that (i) Section 497, in so far as it places a husband and
\nwife on a different footing in a marriage perpetuates sex discrimination; (ii)
\nSection 497 is based on the patriarchal conception of the woman as property,
\nentrenches gender stereotypes, and is consequently hit by Article 15.
\nFrom a joint reading of Section 497 of the Indian Penal Code and Section 198(2)
\nof the Code of Criminal Procedure, the following propositions emerge:
\ni. Sexual relations by a married woman with another man outside her
\nmarriage without the consent of her husband is criminalized;
\nii. In an \u2018adulterous relationship\u2019, the man is punished for adultery, while the
\nwoman is not (even as an abettor);
\niii. Sexual relations by a married man with an unmarried woman are not
\ncriminalized;
\niv. Section 497 accords primacy to the consent of the husband to determine
\nwhether criminality is attached to the man who has consensual sexual
\nPART F
\n51
\nrelations with the spouse of the former. Consent or willingness of the
\nwoman is irrelevant to the offence;
\nv. A man who has sexual relations with the spouse of another man is relieved
\nof the offence only if her spouse has consented or, even connived; and
\nvi. Section 497, IPC, read with Section 198, Cr.PC, gives the man the sole
\nright to lodge a complaint and precludes a woman from initiating criminal
\nproceedings.
\n41 The operation of Section 497, by definition, is confined to the sexual
\nrelations of a woman outside her marriage. A man who has sexual intercourse
\nwith a married woman without the consent or connivance of her husband, is
\nliable to be prosecuted under the Section. However, a married man may engage
\nin sexual relations outside marriage with a single woman without any
\nrepercussion in criminal law. Though granted immunity from prosecution, a
\nwoman is forced to consider the prospect of the penal action that will attach upon
\nthe individual with whom she engages in a sexual act. To ensure the fidelity of
\nhis spouse, the man is given the power to invoke the criminal sanction of the
\nState. In effect, her spouse is empowered to curtail her sexual agency. The
\nconsent of the husband serves as the key to the exercise of the sexual agency of
\nhis spouse. That the married woman is in a consensual relationship, is of no
\nconsequence to the possible prosecution.
\nPART F
\n52
\nA married man may engage in sexual relations with an unmarried woman who is
\nnot his wife without the fear of opening his partner to prosecution and without the
\nconsent of his spouse. No recourse is provided to a woman against her husband
\nwho engages in sexual relations outside marriage. The effect of Section 497 is to
\nallow the sexual agency of a married woman to be wholly dependent on the
\nconsent or connivance of her husband. Though Section 497 does not punish a
\nwoman engaging in adultery as an abettor, a married man and a married woman
\nare placed on different pedestals in respect to their actions. The effect of Section
\n497, despite granting immunity from prosecution to the married woman, is to
\nattach a notion of wrongdoing to the exercise of her sexual agency. Despite
\nexempting her from prosecution, the exercise of her sexual agency is contingent
\non the consent or connivance of the husband. A husband is considered an
\naggrieved party by the law if his wife engages in sexual intercourse with another
\nman, but the wife is not, if her husband does the same. Viewed from this angle,
\nSection 497 discriminates between a married man and a married woman to her
\ndetriment on the ground of sex. This kind of discrimination is prohibited by the
\nnon-discrimination guarantee in Article 15 of the Constitution. Section 497 also
\nplaces a woman within marriage and the man with whom she shares a sexual
\nrelationship outside marriage on a different footing.
\n42 Section 497 criminalizes the conduct of the man who has sexual
\nintercourse with the wife of another without his consent. It exempts women from
\ncriminal liability. Underlying this exemption is the notion that women, being
\nPART F
\n53
\ndenuded of sexual agency, should be afforded the \u2018protection\u2019 of the law. In
\ncriminalizing the accused who engages in the sexual relationship, the law
\nperpetuates a gender stereotype that men, possessing sexual agency are the
\nseducers, and that women, as passive beings devoid of sexual agency, are the
\nseduced. The notion that a woman is \u2018submissive\u2019, or worse still \u2018na\u00efve\u2019 has no
\nlegitimacy in the discourse of a liberal constitution. It is deeply offensive to
\nequality and destructive of the dignity of the woman. On this stereotype, Section
\n497 criminalizes only the accused man.
\n43 Pertinent to the present enquiry, is that the provision allows only the
\nhusband to initiate a prosecution for adultery. The consent or connivance of the
\nhusband precludes prosecution. If a husband consents, his spouse is effectively
\ngranted permission to exercise her sexual agency with another individual. This
\nguarantees a degree of control to the husband over the sexual agency of his
\nspouse. As a relic of Victorian morality, this control over the sexual agency of the
\nspouse, views the wife as the property of the husband. Fidelity of the woman,
\nand the husband\u2019s control over it, is seen as maintaining the \u2018property\u2019 interest of
\na husband in his wife.110 In this view, a woman is confounded with things that can
\nbe possessed. In construing the spouse as a passive or inanimate object, the law
\non adultery seeks to punish a person who attempts theft on the property of the
\nhusband. Coontz and Henderson write that the stabilization of property rights and<\/p>\n

110 Phyllis Coleman, Who\u2019s Been Sleeping in My Bed You and Me, and the State Makes Three, Vol. 24, Indian Law
\nReview (1991)
\nPART F
\n54
\nthe desire to pass on one\u2019s property to legitimate heirs, were what motivated men
\nto restrict the sexual behavior of their wives.111
\n44 Underlying Section 497 is a gender stereotype that the infidelity of men is
\nnormal, but that of a woman is impermissible. In condemning the sexual agency
\nof the woman, only the husband, as the \u2018aggrieved\u2019 party is given the right to
\ninitiate prosecution. The proceedings once initiated, would be geared against the
\nperson who committed an act of \u2018theft\u2019 or \u2018trespass\u2019 upon his spouse. Sexual
\nrelations by a man with another man\u2019s wife is therefore considered as theft of the
\nhusband\u2019s property. Ensuring a man\u2019s control over the sexuality of his wife was
\nthe true purpose of Section 497.
\nImplicit in seeking to privilege the fidelity of women in a marriage, is the
\nassumption that a woman contracts away her sexual agency when entering a
\nmarriage. That a woman, by marriage, consents in advance to sexual relations
\nwith her husband or to refrain from sexual relations outside marriage without the
\npermission of her husband is offensive to liberty and dignity. Such a notion has
\nno place in the constitutional order. Sexual autonomy constitutes an inviolable
\ncore of the dignity of every individual. At the heart of the constitutional rights
\nguaranteed to every individual is a primacy of choice and the freedom to
\ndetermine one\u2019s actions. Curtailing the sexual autonomy of a woman or<\/p>\n

111 Women\u2019s Work, Men\u2019s Property: The Origins of Gender and Class (S Coontz and P Henderson eds.) (1986)
\nPART F
\n55
\npresuming the lack of consent once she enters a marriage is antithetical to
\nconstitutional values.
\n45 A provision of law must not be viewed as operating in isolation from the
\nsocial, political, historical and cultural contexts in which it operates. In its
\noperation, law \u201cpermeates and is inseparable from everyday living and knowing,
\nand it plays an important role in shaping (legal) consciousness.\u201d112 A contextual
\nreading of the law shows that it influences social practices, and makes
\n\u201casymmetries of power seem, if not invisible, natural and benign\u201d.113 Section 497
\nhas a significant social impact on the sexual agency of women. It builds on
\nexisting gender stereotypes and bias and further perpetuates them. Cultural
\nstereotypes are more forgiving of a man engaging in sexual relations than a
\nwoman. Women then are expected to be chaste before and faithful during
\nmarriage. In restricting the sexual agency of women, Section 497 gives legal
\nrecognition to socially discriminatory and gender-based norms. Sexual relations
\nfor a woman were legally and socially permissible when it was within her
\nmarriage. Women who committed adultery or non-marital sex were labeled
\nimmoral, shameful, and were criminally condemned.<\/p>\n

112 Rosemary Coombe, Is There a Cultural Studies of Law, in A Companion to Cultural Studies, Toby Miller (ed.),
\nOxford, (2001)
\n113 Austin Sarat, Jonathan Simon, Beyond Legal Realism: Cultural Analysis, Cultural Studies, and the Situation of
\nLegal Scholarship, Yale Journal of Law & the Humanities, (2001), at page 19
\nPART F
\n56
\nIn Anuj Garg v Hotel Association of India,
\n114 this Court struck down Section 30
\nof the Punjab Excise Act, 1914 which prohibited the employment of women in
\npremises where liquor or other intoxicating drugs were consumed by the public.
\nHolding that the law suffered from \u201cincurable fixations of stereotype morality and
\nconception of sexual role\u201d, the Court took into account \u201ctraditional cultural norms
\nas also the state of general ambience in the society\u201d and held that \u201cno law in its
\nultimate effect should end up perpetuating the oppression of women.\u201d
\nIn Navtej, one of us (Chandrachud J.) held thus:
\n\u201cA discriminatory act will be tested against constitutional
\nvalues. A discrimination will not survive constitutional scrutiny
\nwhen it is grounded in and perpetuates stereotypes about a
\nclass constituted by the grounds prohibited in Article 15(1). If
\nany ground of discrimination, whether direct or indirect is
\nfounded on a stereotypical understanding of the role of the
\nsex, it would not be distinguishable from the discrimination
\nwhich is prohibited by Article 15 on the grounds only of sex. If
\ncertain characteristics grounded in stereotypes, are to be
\nassociated with entire classes of people constituted as groups
\nby any of the grounds prohibited in Article 15(1), that cannot
\nestablish a permissible reason to discriminate. Such a
\ndiscrimination will be in violation of the constitutional
\nguarantee against discrimination in Article 15(1).\u201d
\n46 Section 497 rests on and perpetuates stereotypes about women and
\nsexual fidelity. In curtailing the sexual agency of women, it exacts sexual fidelity
\nfrom women as the norm. It perpetuates the notion that a woman is passive and
\nincapable of exercising sexual freedom. In doing so, it offers her \u2018protection\u2019 from
\nprosecution. Section 497 denudes a woman of her sexual autonomy in making its<\/p>\n

114 (2008) 3 SCC 1
\nPART F
\n57
\nfree exercise conditional on the consent of her spouse. In doing so, it
\nperpetuates the notion that a woman consents to a limited autonomy on entering
\nmarriage. The provision is grounded in and has a deep social effect on how
\nsociety perceives the sexual agency of women. In reinforcing the patriarchal
\nstructure which demands her controlled sexuality, Section 497 purports to serve
\nas a provision envisaged for the protection of the sanctity of marriage. In the
\ncontext of a constitutional vision characterized by the struggle to break through
\nthe shackles of gender stereotypes and guarantee an equal citizenship, Section
\n497 entrenches stereotypes and existing structures of discrimination and has no
\nplace in a constitutional order.
\nF.1 The entrapping cage
\n47 Section 497 exempts a woman from being punished as an abettor.
\nUnderlying this exemption is the notion that a woman is the victim of being
\nseduced into a sexual relationship with a person who is not her husband. In
\nassuming that the woman has no sexual agency, the exemption seeks to be
\njustified on the ground of being a provision that is beneficial to women and
\nprotected under Article 15(3) of the Constitution. This is contrary to the remedy
\nwhich Article 15(3) sought to embody. In Government of A P v P B
\nVijayakumar,
\n115 a two judge Bench of this Court dealt with a challenge to subrule
\n(2) of Rule 22-A of the Andhra Pradesh State and Subordinate Service<\/p>\n

115 (1995) 4 SCC 520
\nPART F
\n58
\nRules, which gave women a preference in the matter of direct recruitment.
\nSpeaking for the Court, Justice Sujata V Manohar held thus:
\n\u201c7. The insertion of Clause (3) of Article 15 in relation to
\nwomen is a recognition of the fact that for centuries, women
\nof this country have been socially and economically
\nhandicapped. As a result, they are unable to participate in the
\nsocio-economic activities of the nation on a footing of
\nequality. It is in order to eliminate this socio-economic
\nbackwardness of women and to empower them in a manner
\nthat would bring about effective equality between men and
\nwomen that Article 15(3) is placed in Article 15. Its object is to
\nstrengthen and improve the status of women\u2026\u201d116
\nIn Independent Thought v Union of India,
\n117 Justice Madan B Lokur, speaking
\nfor a two judge Bench of this Court, adverted to the drafting history of Article
\n15(3) and held thus:
\n\u201c55. The response given by Dr. Ambedkar suggests that he
\ncertainly favoured special provisions for women and children
\nwith a view to integrate them into society and to take them out
\nof patriarchal control\u2026118
\n56. What clearly emerges from this discussion is that Article
\n9(2) of the draft Constitution [now Article 15(3)] was intended
\nto discriminate in favour of women and children \u2013 a form of
\naffirmative action to their advantage.\u201d119
\n48 Article 15(3) encapsulates the notion of \u2018protective discrimination\u2019. The
\nconstitutional guarantee in Article 15(3) cannot be employed in a manner that
\nentrenches paternalistic notions of \u2018protection\u2019. This latter view of protection only
\nserves to place women in a cage. Article 15(3) does not exist in isolation. Articles<\/p>\n

116 Ibid. at page 525
\n117 (2017) 10 SCC 800
\n118 Ibid. at page 837
\n119 Ibid. at page 837
\nPART G
\n59
\n14 to 18, being constituents of a single code on equality, supplement each other
\nand incorporate a non-discrimination principle. Neither Article 15(1), nor Article
\n15(3) allow discrimination against women. Discrimination which is grounded in
\npaternalistic and patriarchal notions cannot claim the protection of Article 15(3).
\nIn exempting women from criminal prosecution, Section 497 implies that a
\nwoman has no sexual agency and that she was \u2018seduced\u2019 into a sexual
\nrelationship. Given the presumed lack of sexual agency, criminal exemption is
\nthen granted to the woman in order to \u2018protect\u2019 her. The \u2018protection\u2019 afforded to
\nwomen under Section 497 highlights the lack of sexual agency that the section
\nimputes to a woman. Article 15(3) when read with the other Articles in Part III,
\nserves as a powerful remedy to remedy the discrimination and prejudice faced by
\nwomen for centuries. Article 15(3) as an enabling provision is intended to bring
\nout substantive equality in the fullest sense. Dignity and autonomy are crucial to
\nsubstantive equality. Hence, Article 15(3) does not protect a statutory provision
\nthat entrenches patriarchal notions in the garb of protecting women.
\nG Denuding identity \u2013 women as sexual property
\n49 Charles Jean Marie wrote in 1911120 about the central forms of adultery as
\nan offence. The criminalisation of adultery came at a social cost: of disregarding
\nthe agency of a woman as a sentient being.<\/p>\n

120 Charles Jean Marie Letorneau, The Evolution of Marriage (2011)
\nPART G
\n60
\n\u201cIn all legislations the married woman is more or less openly
\nconsidered as the property of the husband and is very often
\nconfounded, absolutely confounded, with things possessed.
\nTo use her, therefore, without the authority of her owner is
\ntheft\u2026But adultery is not a common theft. An object, an inert
\npossession, are passive things; their owner may well punish
\nthe thief who has taken them, but him only. In adultery, the
\nobject of larceny, the wife, is a sentient and thinking
\nbeing- that is to say, an accomplice in the attempt on her
\nhusband\u2019s property in her own person; moreover he
\ngenerally has her in his keeping\u2026\u201d
\nThe law on adultery is but a codified rule of patriarchy. Patriarchy has permeated
\nthe lives of women for centuries. Ostensibly, society has two sets of standards of
\nmorality for judging sexual behaviour.121 One set for its female members and
\nanother for males.
\n122 Society ascribes impossible virtues to a woman and
\nconfines her to a narrow sphere of behaviour by an expectation of conformity.
\n123
\nRaising a woman to a pedestal is one part of the endeavour. The second part is
\nall about confining her to a space. The boundaries of that space are defined by
\nwhat a woman should or should not be. A society which perceives women as
\npure and an embodiment of virtue has no qualms of subjecting them to virulent
\nattack: to rape, honour killings, sex-determination and infanticide. As an
\nembodiment of virtue, society expects the women to be a mute spectator to and
\neven accepting of egregious discrimination within the home. This is part of the
\nprocess of raising women to a pedestal conditioned by male notions of what is
\nright and what is wrong for a woman. The notion that women, who are equally
\nentitled to the protections of the Constitution as their male counterparts, may be<\/p>\n

121 Nandita Haksar, Dominance, Suppression and the Law in Women and the Law: Contemporary Problems (Lotika
\nSarkar and B. Sivaramayya eds.), Vikas Publishing House (1994)
\n122 Ibid
\n123 Ibid
\nPART G
\n61
\ntreated as objects capable of being possessed, is an exercise of subjugation and
\ninflicting indignity. Anachronistic conceptions of \u2018chastity\u2019 and \u2018honour\u2019 have
\ndictated the social and cultural lives of women, depriving them of the guarantees
\nof dignity and privacy, contained in the Constitution.
\n50 The right to privacy depends on the exercise of autonomy and agency by
\nindividuals. In situations where citizens are disabled from exercising these
\nessential attributes, Courts must step in to ensure that dignity is realised in the
\nfullest sense. Familial structures cannot be regarded as private spaces where
\nconstitutional rights are violated. To grant immunity in situations when rights of
\nindividuals are in siege, is to obstruct the unfolding vision of the Constitution.
\nThe opinion delivered on behalf of four judges in K S Puttaswamy v Union of
\nIndia124 has recognised the dangers of the \u201cuse of privacy as a veneer for
\npatriarchal domination and abuse of women.\u201d On the delicate balance between
\nthe competing interests of protecting privacy as well dignity of women in the
\ndomestic sphere, the Court held:
\n\u201cThe challenge in this area is to enable the state to take the
\nviolation of the dignity of women in the domestic sphere
\nseriously while at the same time protecting the privacy
\nentitlements of women grounded in the identity of gender and
\nliberty.\u201d<\/p>\n

124 (2017) 10 SCC 1
\nPART G
\n62
\n51 In \u201cSeeing like a Feminist\u201d, Nivedita Menon has recognized the patriarchal
\nfamily as the \u201cbasis for the secondary status of women in society.\u201d
\n125 Menon
\nnotes that \u2018the personal is political\u2019.126 Her scholarly work implores us to
\nrecognise spaces which may be considered personal such as the bedroom and
\nkitchen. These spaces are immersed in power relations, but with ramifications for
\nthe public sphere.127
\nControl over women\u2019s sexuality is the key patriarchal assumption that underlies
\nfamily and marriage.
\n128 When it shifts to the \u2018public\u2019 as opposed to the \u2018private\u2019,
\nthe misogyny becomes even more pronounced.129 Section 497 embodies this. By
\nthe operation of the provision, women\u2019s sexuality is sought to be controlled in a
\nnumber of ways. First, the husband and he alone is enabled to prosecute the
\nman with whom his wife has sexual relations. Even in cases where the
\nrelationship is based on the consent of the woman, the law treats it as an
\noffence, denying a woman who has voluntarily entered into a consensual
\nrelationship of her sexual agency. Second, such a relationship would be beyond
\nthe reach of penal law if her husband consents to it. The second condition is a
\ntelling reflection of the patriarchal assumption underlying the criminal provision:
\nthat the husband is the owner of the wife\u2019s sexual agency.<\/p>\n

125 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35
\n126 Ibid.
\n127 Ibid.
\n128 Ibid.
\n129 Ibid.
\nPART G
\n63
\n52 In remedying injustices, the Court cannot shy away from delving into the
\n\u2018personal\u2019, and as a consequence, the \u2018public\u2019. It becomes imperative for us to
\nintervene when structures of injustice and persecution deeply entrenched in
\npatriarchy are destructive of constitutional freedom. But, in adjudicating on the
\nrights of women, the Court is not taking on a paternalistic role and \u201cgranting\u201d
\nrights. The Court is merely interpreting the text of the Constitution to re-state
\nwhat is already set in ink- women are equal citizens of this nation, entitled to the
\nprotections of the Constitution. Any legislation which results in the denial of these
\nConstitutional guarantees to women, cannot pass the test of constitutionality.<\/p>\n

Patriarchy and paternalism are the underpinnings of Section 497. It needs no
\niteration that misogyny and patriarchal notions of sexual control find no place in a
\nconstitutional order which has recognised dignity as intrinsic to a person,
\nautonomy being an essential component of this right. The operation of Section
\n497 denotes that \u2018adulterous women\u2019 virtually exercise no agency; or at least not
\nenough agency to make them criminally liable.
\n130
\nThey are constructed as
\nvictims. As victims, they are to be protected by being exempt from sanctions of a
\ncriminal nature.131 Not only is there a denial of sexual agency, women are also
\nnot seen to be harmed by the offence.132 Thus, the provision is not simply about
\nprotecting the sanctity of the marital relationship. It is all about protecting a
\nhusband\u2019s interest in his \u201cexclusive access to his wife\u2019s sexuality\u201d.
\n133<\/p>\n

130 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications
\n(1996) at page 119
\n131 Ibid.
\n132 Ibid.
\n133 Ibid. at page 120
\nPART G
\n64
\n53 Section 497 chains the woman to antediluvian notions of sexuality. Chief
\nJustice Dipak Misra in Navtej emphasised the importance of sexual autonomy as
\na facet of individual liberty, thus protected under Article 21 of the Constitution:
\n\u201cThe sexual autonomy of an individual to choose his\/her
\nsexual partner is an important pillar and an insegregable facet
\nof individual liberty. When the liberty of even a single person
\nof the society is smothered under some vague and archival
\nstipulation that it is against the order of nature or under the
\nperception that the majority population is peeved when such
\nan individual exercises his\/her liberty despite the fact that the
\nexercise of such liberty is within the confines of his\/her private
\nspace, then the signature of life melts and living becomes a
\nbare subsistence and resultantly, the fundamental right of
\nliberty of such an individual is abridged.\u201d
\nIn Navtej, one of us (Chandrachud J.) held that the recognition of the autonomy
\nof an individual is an acknowledgement of the State\u2019s respect for the capacity of
\nthe individual to make individual choices:
\n\u201cThe right to privacy enables an individual to exercise his or
\nher autonomy, away from the glare of societal expectations.
\nThe realisation of the human personality is dependent on the
\nautonomy of an individual. In a liberal democracy, recognition
\nof the individual as an autonomous person is an
\nacknowledgment of the State\u2019s respect for the capacity of the
\nindividual to make independent choices. The right to privacy
\nmay be construed to signify that not only are certain acts no
\nlonger immoral, but that there also exists an affirmative moral
\nright to do them.\u201d
\nTo characterise a woman as a passive object, denuded of agency, is a denial of
\nautonomy. The same judgment in Navtej has recognized sexual choices as an
\nessential attribute of autonomy, intimately connected to the self-respect of the
\nindividual:
\nPART G
\n65
\n\u201cIn order to understand how sexual choices are an essential
\nattribute of autonomy, it is useful to refer to John Rawls\u2019
\ntheory on social contract. Rawls\u2019 conception of the \u2018Original
\nPosition\u2019 serves as a constructive model to illustrate the
\nnotion of choice behind a \u201cpartial veil of ignorance.\u201d Persons
\nbehind the veil are assumed to be rational and mutually
\ndisinterested individuals, unaware of their positions in society.
\nThe strategy employed by Rawls is to focus on a category of
\ngoods which an individual would desire irrespective of what
\nindividuals\u2019 conception of \u2018good\u2019 might be. These neutrally
\ndesirable goods are described by Rawls as \u2018primary social
\ngoods\u2019 and may be listed as rights, liberties, powers,
\nopportunities, income, wealth, and the constituents of selfrespect.
\nRawls’s conception of self-respect, as a primary
\nhuman good, is intimately connected to the idea of
\nautonomy. Self-respect is founded on an individual’s
\nability to exercise her native capacities in a competent
\nmanner.\u201d
\n(Emphasis supplied)
\nG.1 Exacting fidelity: the intimacies of marriage<\/p>\n

54 Marriage as a social institution has undergone changes. Propelled by
\naccess to education and by economic and social progress, women have found
\ngreater freedom to assert their choices and preferences. The law must also
\nreflect their status as equals in a marriage, entitled to the constitutional
\nguarantees of privacy and dignity. The opinion delivered on behalf of four judges
\nin Puttaswamy held thus:
\n\u201c130\u2026As society evolves, so must constitutional doctrine.
\nThe institutions which the Constitution has created must
\nadapt flexibly to meet the challenges in a rapidly growing
\nknowledge economy. Above all, constitutional interpretation is
\nbut a process in achieving justice, liberty and dignity to every
\ncitizen.\u201d134<\/p>\n

134 Ibid. at page 414
\nPART G
\n66
\nIn Navtej, Justice Rohinton Nariman countered the assertion that the Court must
\n\u201cnot indulge in taking upon itself the guardianship of changing societal mores\u201d by
\nholding thus:
\n\u201c\u2026The very purpose of the fundamental rights chapter in the
\nConstitution of India is to withdraw the subject of liberty and
\ndignity of the individual and place such subject beyond the
\nreach of majoritarian governments so that constitutional
\nmorality can be applied by this Court to give effect to the
\nrights, among others, of \u2018discrete and insular\u2019 minorities.One
\nsuch minority has knocked on the doors of this Court as this
\nCourt is the custodian of the fundamental rights of citizens.
\nThese fundamental rights do not depend upon the
\noutcome of elections. And, it is not left to majoritarian
\ngovernments to prescribe what shall be orthodox in
\nmatters concerning social morality. The fundamental
\nrights chapter is like the north star in the universe of
\nconstitutionalism in India. Constitutional morality always
\ntrumps any imposition of a particular view of social
\nmorality by shifting and different majoritarian regimes.\u201d
\n(Emphasis supplied)
\n55 Section 497 seeks the preservation of a construct of marriage in which
\nfemale fidelity is enforced by the letter of the law and by the coercive authority of
\nthe state. Such a conception goes against the spirit of the rights-based
\njurisprudence of this Court, which seeks to protect the dignity of an individual and
\nher \u201cintimate personal choices\u201d. It cannot be held that these rights cease to exist
\nonce the woman enters into a marriage.
\n56 The identity of the woman must be as an \u2018individual in her own right\u2019. In
\nthat sense, her identity does not get submerged as a result of her marriage.
\nSection 497 lays down the norm that the identity of a married woman is but as
\nthe wife of her spouse. Underlying the norm is a notion of control over and
\nsubjugation of the woman. Such notions cannot withstand scrutiny under a liberal
\nPART G
\n67
\nconstitution. Chief Justice Dipak Misra in Navtej has drawn on the
\ninterrelationship between \u2018identity\u2019 and \u2018autonomy\u2019:
\n\u201c\u2026Autonomy is individualistic. Under the autonomy principle,
\nthe individual has sovereignty over his\/her body. He\/she can
\nsurrender his\/her autonomy wilfully to another individual and
\ntheir intimacy in privacy is a matter of their choice. Such
\nconcept of identity is not only sacred but is also in recognition
\nof the quintessential facet of humanity in a person\u2018s nature.
\nThe autonomy establishes identity and the said identity, in the
\nultimate eventuate, becomes a part of dignity in an individual.
\nThis dignity is special to the man\/woman who has a right to
\nenjoy his\/her life as per the constitutional norms and should
\nnot be allowed to wither and perish like a mushroom. It is a
\ndirectional shift from conceptual macrocosm to cognizable
\nmicrocosm. When such culture grows, there is an affirmative
\nmove towards a more inclusive and egalitarian society.\u201d
\nThis Court in Puttaswamy has elucidated that privacy is the entitlement of every
\nindividual, with no distinction to be made on the basis of the individual\u2019s position
\nin society.
\n\u201c271.Every individual in society irrespective of social class or
\neconomic status is entitled to the intimacy and autonomy
\nwhich privacy protects. It is privacy as an intrinsic and core
\nfeature of life and personal liberty which enables an individual
\nto stand up against a programme of forced sterilization. Then
\nagain, it is privacy which is a powerful guarantee if the State
\nwere to introduce compulsory drug trials of non-consenting
\nmen or women. The sanctity of marriage, the liberty of
\nprocreation, the choice of a family life and the dignity of being
\nare matters which concern every individual irrespective of
\nsocial strata or economic well being. The pursuit of happiness
\nis founded upon autonomy and dignity. Both are essential
\nattributes of privacy which makes no distinction between the
\nbirth marks of individuals.\u201d135
\n57 It would be useful to refer to decisions of this Court which have
\nemphasised on the freedoms of individuals with respect to choices in
\nrelationships. In Navtej, Chief Justice Misra highlighted the indignity suffered by<\/p>\n

135 Ibid. at page 484
\nPART G
\n68
\nan individual when \u201cacts within their personal sphere\u201d are criminalised on the
\nbasis of regressive social attitudes:
\n\u201cAn individual’s choice to engage in certain acts within their
\nprivate sphere has been restricted by criminalising the same
\non account of the age old social perception. To harness such
\nan essential decision, which defines the individualism of a
\nperson, by tainting it with criminality would violate the
\nindividual’s right to dignity by reducing it to mere letters
\nwithout any spirit.\u201d
\nThe Chief Justice observed that the \u201corganisation of intimate relations\u201d between
\n\u201cconsenting adults\u201d is a matter of complete personal choice and characterised
\nthe \u201cprivate protective sphere and realm of individual choice and autonomy\u201d as a
\npersonal right:
\n\u201cIt is true that the principle of choice can never be absolute
\nunder a liberal Constitution and the law restricts one
\nindividual\u2018s choice to prevent harm or injury to others.
\nHowever, the organisation of intimate relations is a
\nmatter of complete personal choice especially between
\nconsenting adults. It is a vital personal right falling within
\nthe private protective sphere and realm of individual
\nchoice and autonomy. Such progressive proclivity is
\nrooted in the constitutional structure and is an
\ninextricable part of human nature.\u201d
\n(Emphasis supplied)
\n.
\nIn Shakti Vahini, this Court has recognised the right to choose a partner as a
\nfundamental right under Articles 19 and 21 of the Constitution. In Shafin Jahan,
\n\u201cintimate personal choices\u201d were held to be a protected sphere, with one of us
\n(Chandrachud J) stating:
\n\u201c88.The choice of a partner whether within or outside
\nmarriage lies within the exclusive domain of each individual.
\nPART G
\n69
\nIntimacies of marriage lie within a core zone of privacy, which
\nis inviolable.\u201d<\/p>\n

58 In Navtej, one of us (Chandrachud J) held that the right to sexual privacy
\nis a natural right, fundamental to liberty and a soulmate of dignity. The application
\nof Section 497 is a blatant violation of these enunciated rights. Will a trial to prove
\nadultery lead the wife to tender proof of her fidelity In Navtej, the principle was
\nelucidated thus:
\n\u201cIn protecting consensual intimacies, the Constitution adopts
\na simple principle: the state has no business to intrude into
\nthese personal matters.\u201d<\/p>\n

In so far as two individuals engage in acts based on consent, the law cannot
\nintervene. Any intrusion in this private sphere would amount to deprivation of
\nautonomy and sexual agency, which every individual is imbued with.
\nIn Puttaswamy, it was recognised that a life of dignity entails that the \u201cinner
\nrecesses of the human personality\u201d be secured from \u201cunwanted intrusion\u201d:
\n\u201c127.The right to privacy is an element of human dignity. The
\nsanctity of privacy lies in its functional relationship with
\ndignity. Privacy ensures that a human being can lead a life of
\ndignity by securing the inner recesses of the human
\npersonality from unwanted intrusion. Privacy recognises the
\nautonomy of the individual and the right of every person to
\nmake essential choices which affect the course of life. In
\ndoing so privacy recognises that living a life of dignity is
\nessential for a human being to fulfil the liberties and freedoms
\nwhich are the cornerstone of the Constitution.\u201d136<\/p>\n

136 Ibid. at page 413
\nPART G
\n70
\n59 In criminalizing adultery, the legislature has imposed its imprimatur on the
\ncontrol by a man over the sexuality of his spouse. In doing that, the statutory
\nprovision fails to meet the touchstone of Article 21. Section 497 deprives a
\nwoman of her autonomy, dignity and privacy. It compounds the encroachment on
\nher right to life and personal liberty by adopting a notion of marriage which
\nsubverts true equality. Equality is subverted by lending the sanctions of the penal
\nlaw to a gender biased approach to the relationship of a man and a woman. The
\nstatute confounds paternalism as an instrument for protecting marital stability. It
\ndefines the sanctity of marriage in terms of a hierarchical ordering which is
\nskewed against the woman. The law gives unequal voices to partners in a
\nrelationship.
\nThis judgment has dwelt on the importance of sexual autonomy as a value which
\nis integral to life and personal liberty under Article 21. Individuals in a
\nrelationship, whether within or outside marriage, have a legitimate expectation
\nthat each will provide to the other the same element of companionship and
\nrespect for choices. Respect for sexual autonomy, it must be emphasized is
\nfounded on the equality between spouses and partners and the recognition by
\neach of them of the dignity of the other. Control over sexuality attaches to the
\nhuman element in each individual. Marriage \u2013 whether it be a sacrament or
\ncontract \u2013 does not result in ceding of the autonomy of one spouse to another.
\nPART G
\n71
\n60 Recognition of sexual autonomy as inhering in each individual and of the
\nelements of privacy and dignity have a bearing on the role of the state in
\nregulating the conditions and consequences of marital relationships. There is a
\nfundamental reason which militates against criminalization of adultery. Its
\ngenesis lies in the fact that criminalizing an act is not a valid constitutional
\nresponse to a sexual relationship outside the fold of marriage. Adultery in the
\ncourse of a subsisting marital relationship may, and very often does question the
\ncommitment of the spouse to the relationship. In many cases, a sexual
\nrelationship of one of the spouses outside of the marriage may lead to the end of
\nthe marital relationship. But in other cases, such a relationship may not be the
\ncause but the consequence of a pre-existing disruption of the marital tie. All too
\noften, spouses who have drifted apart irrevocably may be compelled for reasons
\npersonal to them to continue with the veneer of a marriage which has ended for
\nall intents and purposes. The interminably long delay of the law in the resolution
\nof matrimonial conflicts is an aspect which cannot be ignored. The realities of
\nhuman existence are too complex to place them in closed categories of right and
\nwrong and to subject all that is considered wrong with the sanctions of penal law.
\nJust as all conduct which is not criminal may not necessarily be ethically just, all
\nconduct which is inappropriate does not justify being elevated to a criminal
\nwrongdoing.
\n61 The state undoubtedly has a legitimate interest in regulating many aspects
\nof marriage. That is the foundation on which the state does regulate rights,
\nPART G
\n72
\nentitlements and duties, primarily bearing on its civil nature. Breach by one of the
\nspouses of a legal norm may constitute a ground for dissolution or annulment.
\nWhen the state enacts and enforces such legislation, it does so on the postulate
\nthat marriage as a social institution has a significant bearing on the social fabric.
\nBut in doing so, the state is equally governed by the norms of a liberal
\nConstitution which emphasise dignity, equality and liberty as its cardinal values.
\nThe legitimate aims of the state may, it must be recognized, extend to imposing
\npenal sanctions for certain acts within the framework of marriage. Physical and
\nemotional abuse and domestic violence are illustrations of the need for legislative
\nintervention. The Indian state has legitimately intervened in other situations such
\nas by enacting anti dowry legislation or by creating offences dealing with the
\nharassment of women for dowry within a marital relationship. The reason why
\nthis constitutes a legitimate recourse to the sovereign authority of the state to
\ncriminalize conduct is because the acts which the state proscribes are
\ndeleterious to human dignity. In criminalizing certain types of wrongdoing against
\nwomen, the state intervenes to protect the fundamental rights of every woman to
\nlive with dignity. Consequently, it is important to underscore that this judgment
\ndoes not question the authority and even the duty of the state to protect the
\nfundamental rights of women from being trampled upon in unequal societal
\nstructures. Adultery as an offence does not fit that paradigm. In criminalizing
\ncertain acts, Section 497 has proceeded on a hypothesis which is deeply
\noffensive to the dignity of women. It is grounded in paternalism, solicitous of
\npatriarchal values and subjugates the woman to a position where the law
\nPART H
\n73
\ndisregards her sexuality. The sexuality of a woman is part of her inviolable core.
\nNeither the state nor the institution of marriage can disparage it. By reducing the
\nwoman to the status of a victim and ignoring her needs, the provision penalizing
\nadultery disregards something which is basic to human identity. Sexuality is a
\ndefinitive expression of identity. Autonomy over one\u2019s sexuality has been central
\nto human urges down through the ages. It has a constitutional foundation as
\nintrinsic to autonomy. It is in this view of the matter that we have concluded that
\nSection 497 is violative of the fundamental rights to equality and liberty as
\nindeed, the right to pursue a meaningful life within the fold of Articles 14 and 21.
\n62 The hallmark of a truly transformative Constitution is that it promotes and
\nengenders societal change. To consider a free citizen as the property of another
\nis an anathema to the ideal of dignity. Section 497 denies the individual identity
\nof a married woman, based on age-old societal stereotypes which characterised
\nwomen as the property of their spouse. It is the duty of this Court to break these
\nstereotypes and promote a society which regards women as equal citizens in all
\nspheres of life- irrespective of whether these spheres may be regarded as \u2018public\u2019
\nor \u2018private\u2019.
\nH Towards transformative justice
\n63 Constitutional values infuse the letter of the law with meaning. True to its
\ntransformative vision, the text of the Constitution has, time and again, been
\ninterpreted to challenge hegemonic structures of power and secure the values of
\nPART H
\n74
\ndignity and equality for its citizens. One of the most significant of the battles for
\nequal citizenship in the country has been fought by women. Feminists have
\novercome seemingly insurmountable barriers to ensure a more egalitarian
\nexistence for future generations. However, the quest for equality continues.
\nWhile there has been a considerable degree of reform in the formal legal system,
\nthere is an aspect of women\u2019s lives where their subordination has historically
\nbeen considered beyond reproach or remedy. That aspect is the family. Marriage
\nis a significant social institution where this subordination is pronounced, with
\nentrenched structures of patriarchy and romantic paternalism shackling women
\ninto a less than equal existence.
\n64 The law on adultery, conceived in Victorian morality, considers a married
\nwoman the possession of her husband: a passive entity, bereft of agency to
\ndetermine her course of life. The provision seeks to only redress perceived harm
\ncaused to the husband. This notion is grounded in stereotypes about permissible
\nactions in a marriage and the passivity of women. Fidelity is only expected of the
\nfemale spouse. This anachronistic conception of both, a woman who has entered
\ninto marriage as well as the institution of marriage itself, is antithetical to
\nconstitutional values of equality, dignity and autonomy.
\nIn enforcing the fundamental right to equality, this Court has evolved a test of
\nmanifest arbitrariness to be employed as a check against state action or
\nlegislation which has elements of caprice, irrationality or lacks an adequate
\nPART H
\n75
\ndetermining principle. The principle on which Section 497 rests is the
\npreservation of the sexual exclusivity of a married woman \u2013 for the benefit of her
\nhusband, the owner of her sexuality. Significantly, the criminal provision exempts
\nfrom sanction if the sexual act was with the consent and connivance of the
\nhusband. The patriarchal underpinnings of Section 497 render the provision
\nmanifestly arbitrary.
\n65 The constitutional guarantee of equality rings hollow when eviscerated of
\nits substantive content. To construe Section 497 in a vacuum (as did Sowmithri
\nVishnu) or in formalistic terms (as did Revathi) is a refusal to recognise and
\naddress the subjugation that women have suffered as a consequence of the
\npatriarchal order. Section 497 is a denial of substantive equality in that it reinforces
\nthe notion that women are unequal participants in a marriage; incapable
\nof freely consenting to a sexual act in a legal order which regards them as the
\nsexual property of their spouse.
\n66 This Court has recognised sexual privacy as a natural right, protected
\nunder the Constitution. To shackle the sexual freedom of a woman and allow the
\ncriminalization of consensual relationships is a denial of this right. Section 497
\ndenudes a married woman of her agency and identity, employing the force of law
\nto preserve a patriarchal conception of marriage which is at odds with
\nconstitutional morality:
\n\u201cInfidelity was born on the day that natural flows of sexual
\ndesire were bound into the legal and formal permanence of
\nmarriage; in the process of ensuring male control over
\nPART H
\n76
\nprogeny and property, women were chained within the fetters
\nof fidelity.\u201d137
\nConstitutional protections and freedoms permeate every aspect of a citizen\u2019s life
\n– the delineation of private or public spheres become irrelevant as far as the
\nenforcement of constitutional rights is concerned. Therefore, even the intimate
\npersonal sphere of marital relations is not exempt from constitutional scrutiny.
\nThe enforcement of forced female fidelity by curtailing sexual autonomy is an
\naffront to the fundamental right to dignity and equality.
\n67 Criminal law must be in consonance with constitutional morality. The law
\non adultery enforces a construct of marriage where one partner is to cede her
\nsexual autonomy to the other. Being antithetical to the constitutional guarantees
\nof liberty, dignity and equality, Section 497 does not pass constitutional muster.
\nWe hold and declare that:
\n1) Section 497 lacks an adequately determining principle to criminalize
\nconsensual sexual activity and is manifestly arbitrary. Section 497 is a
\ndenial of substantive equality as it perpetuates the subordinate status
\nascribed to women in marriage and society. Section 497 violates Article 14
\nof the Constitution;<\/p>\n

137 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting Archana Verma, Stree
\nVimarsh Ke Mahotsav (2010)
\nPART H
\n77
\n2) Section 497 is based on gender stereotypes about the role of women and
\nviolates the non-discrimination principle embodied in Article 15 of the
\nConstitution;
\n3) Section 497 is a denial of the constitutional guarantees of dignity, liberty,
\nprivacy and sexual autonomy which are intrinsic to Article 21 of the
\nConstitution; and
\n4) Section 497 is unconstitutional.
\nThe decisions in Sowmithri Vishnu and Revathi are overruled.<\/p>\n

\u2026..\u2026..\u2026………………………………………J
\n[Dr Dhananjaya Y Chandrachud]
\nNew Delhi;
\nSeptember 27, 2018.<\/p>\n

1
\nIN THE SUPREME COURT OF INDIA
\nCRIMINAL ORIGINAL JURISDICTION
\nWRIT PETITION (CRIMINAL) NO. 194 OF 2017
\nJoseph Shine \u2026Petitioner
\nVersus
\nUnion of India \u2026Respondent
\nJ U D G M E N T
\nINDU MALHOTRA, J.
\n1. The present Writ Petition has been filed to challenge the
\nconstitutional validity of Section 497 of the Indian Penal
\nCode (hereinafter referred to as I.P.C.) which makes
\n\u201eadultery a criminal offence, and prescribes a
\npunishment of imprisonment upto five years and fine.
\nSection 497 reads as under:
\n497. Adultery \u2014 Whoever has sexual
\nintercourse with a person who is and
\nwhom he knows or has reason to
\nbelieve to be the wife of another man,
\nwithout the consent or connivance of
\nthat man, such sexual intercourse not
\n2
\namounting to the offence of rape, is
\nguilty of the offence of adultery, and
\nshall be punished with imprisonment of
\neither description for a term which may
\nextend to five years, or with fine, or
\nwith both. In such case the wife shall
\nnot be punishable as an abettor.
\n2. The Petitioner has also challenged Section 198(2) of the
\nCode of Criminal Procedure, 1973, (hereinafter referred to
\nas \u201cCr.P.C\u201d). Section 198(2) reads as under:
\nFor the purpose of sub-section (1), no
\nperson other than the husband of the
\nwoman shall be deemed to be
\naggrieved by any offence punishable
\nunder section 497 or section 498 of the
\nsaid Code.
\nProvided that in the absence of the
\nhusband, some person who had care
\nof the woman on his behalf at the time
\nwhen such offence was committed
\nmay, with the leave of the Court, make
\na complaint on his behalf.
\n3. The word \u201eadultery
\n1 derives its origin from the French
\nword \u201eavoutre\u2018, which has evolved from the Latin verb
\n\u201eadulterium\u2018 which means \u201cto corrupt.\u201d The concept of a
\nwife corrupting the marital bond with her husband by<\/p>\n

1 The New international Websters Comprehensive Dictionary of the English Language,
\nDeluxe Encyclopedic Edition, Trident Press International (1996 Edn.) at page 21.
\n3
\nhaving a relationship outside the marriage, was termed
\nas \u201eadultery.
\nThis definition of adultery emanated from the historical
\ncontext of Victorian morality, where a woman considered
\nto be the \u201eproperty of her husband; and the offence was
\ncommitted only by the adulterous man. The adulterous
\nwoman could not be proceeded against as an \u201eabettor,
\neven though the relationship was consensual.
\n4. THE DOCTRINE OF COVERTURE
\nAdultery, as an offence, was not a crime under
\nCommon Law, in England. It was punishable by the
\necclesiastical courts which exercised jurisdiction over
\nsacramental matters that included marriage, separation,
\nlegitimacy, succession to personal property, etc.
\n2
\nIn England, coverture determined the rights of married
\nwomen, under Common Law. A \u201efeme sole\u2018 transformed
\ninto a \u201efeme covert\u2018 after marriage. \u201eFeme covert\u2018 was
\nbased on the doctrine of \u201eUnity of Persons \u2013 i.e. the
\nhusband and wife were a single legal identity. This was<\/p>\n

2 Outhwaite, R.B. (2007). The Rise and Fall of the English Ecclesiastical Courts, 1500\u20131860.
\nCambridge, UK: Cambridge University Press
\n4
\nbased on notions of biblical morality that a husband and
\nwife were \u201eone in flesh and blood. The effect of \u201ecoverture
\nwas that a married womans legal rights were subsumed
\nby that of her husband. A married woman could not own
\nproperty, execute legal documents, enter into a contract,
\nor obtain an education against her husband’s wishes, or
\nretain a salary for herself.3
\nThe principle of \u201ecoverture was described in William
\nBlackstone’s Commentaries on the Laws of England as
\nfollows:4
\nBy marriage, the husband and wife
\nare one person in law: that is, the very
\nbeing or legal existence of the woman is
\nsuspended during the marriage, or at
\nleast is incorporated and consolidated
\ninto that of the husband: under whose
\nwing, protection, and cover, she
\nperforms everything; and is therefore
\ncalled in our law-French a feme-covert;
\nis said to be covert-baron, or under the
\nprotection and influence of her
\nhusband, her baron, or lord; and her
\ncondition during her marriage is called
\nher coverture. Upon this principle, of a
\nunion of person in husband and wife,
\ndepend almost all the legal rights,
\nduties, and disabilities, that either of
\nthem acquires by the marriage. I speak<\/p>\n

3 Fernandez, Angela \u201cTapping Reeve, Nathan Dane, and James Kent: Three Fading
\nFederalists on Marital Unity.\u201d Married Women and the Law: Coverture in England and the
\nCommon Law World, edited by Tim Stretton and Krista J. Kesselring, McGill-Queen’s
\nUniversity Press, 2013, pp. 192\u2013216.
\n4 Blackstone\u2018s Commentaries on the Laws of England, Books III & IV (8th Edn.), 1778
\n5
\nnot at present of the rights of property,
\nbut of such as are merely personal. For
\nthis reason, a man cannot grant
\nanything to his wife, or enter into
\ncovenant with her: for the grant would
\nbe to suppose her separate existence;
\nand to covenant with her, would be only
\nto covenant with himself: and therefore
\nit is also generally true, that all
\ncontracts made between husband and
\nwife, when single, are voided by the
\nintermarriage.
\n(Emphasis supplied)
\nOn this basis, a wife did not have an individual legal
\nliability for her misdeeds, since it was legally assumed
\nthat she was acting under the orders of her husband, and
\ngenerally a husband and wife were not allowed to testify
\neither for, or against each other.
\nMedieval legal treatises, such as the Bracton5,
\ndescribed the nature of \u201ecoverture and its impact on
\nmarried women’s legal actions. Bracton (supra) states
\nthat husbands wielded power over their wives, being their
\n\u201erulers and \u201ecustodians of their property. The institution
\nof marriage came under the jurisdiction of ecclesiastical
\ncourts. It made wives live in the shadow of their
\nhusbands, virtually \u201einvisible to the law.<\/p>\n

5 Bracton: De Legibus Et Consuetudinibus Angli\u00e6 (Bracton on the Laws and Customs of
\nEngland attributed to Henry of Bratton, c. 1210-1268) Vol III, pg. 115
\nAvailable at http:\/\/bracton.law.harvard.edu\/index.html
\n6
\nThe principle of coverture subsisted throughout the
\nmarriage of the couple. It was not possible to obtain a
\ndivorce through civil courts, which refused to invade into
\nthe jurisdiction of the church. Adultery was the only
\nground available to obtain divorce.
\nThe origin of adultery under Common Law was
\ndiscussed in the English case Pritchard v. Pritchard and
\nSims6, wherein it was held that:
\nIn 1857, when marriage in England
\nwas still a union for life which could be
\nbroken only by private Act of
\nParliament, under the common law,
\nthree distinct causes of action available
\nto a husband whose rights in his wife
\nwere violated by a third party, who
\nenticed her away, or who harboured
\nher or who committed adultery with
\nher\u2026In the action for adultery, known
\nas criminal conversation, which dates
\nfrom before the time of BRACTON, and
\nconsequently lay originally in trespass,
\nthe act of adultery itself was the cause
\nof action and the damages punitive at
\nlarge. It lay whether the adultery
\nresulted in the husband\u2018s losing his
\nwife\u2018s society and services or not. All
\nthree causes of action were based on
\nthe recognition accorded by the common
\nlaw to the husband\u2018s propriety which
\nwould have been hers had she been
\nfeme sole.
\n(Emphasis supplied)<\/p>\n

6 [1966] 3 All E.R. 601
\n7
\nIn the Victorian Era7, women were denied the exercise
\nof basic rights and liberties, and had little autonomy over
\ntheir choices. Their status was pari materia with that of
\nland, cattle and crop; forming a part of the \u201eestate of their
\nfathers as daughters prior to marriage, and as the \u201eestate
\nof their husband post-marriage.
\n8
\nLord Wilson in his Speech titled \u201cOut of his shadow:
\nThe long struggle of wives under English Law\u201d
\n9 speaks of
\nthe plight of women during this era:
\n8. An allied consequence of the wife\u2018s
\ncoverture was that she was not legally
\nable to enter into a contract. Apart from
\nanything else, she had no property
\nagainst which to enforce any order
\nagainst her for payment under a
\ncontract; so it was only a small step for
\nthe law to conclude that she did not
\nhave the ability to enter into the
\ncontract in the first place. If, however,
\nthe wife went into a shop and ordered
\ngoods, say of food or clothing, which the
\nlaw regarded as necessary for the
\nhousehold, the law presumed, unless
\nthe husband proved to the contrary,
\nthat she had entered into the contract<\/p>\n

7 1807 \u2013 1901 A.D.
\n8 Margot Finn (1996). Women, Consumption and Coverture in England, c. 1760\u20131860.
\nThe Historical Journal, 39, pp 703-722
\n9 The High Sheriff of Oxfordshires Annual Law Lecture given by Lord Wilson on 9 October
\n2012
\nAvailable at: https:\/\/www.supremecourt.uk\/docs\/speech-121009.pdf
\n8
\nas his authorised agent. So the
\nshopkeeper could sue him for the price
\nif the wife had obtained the goods on
\ncredit.
\n9. In the seventeenth century there was
\na development in the law relating to this
\nso-called agency of necessity. It was an
\nattempt to serve the needs of wives
\nwhose husbands had deserted them.
\nThe law began to say that, if a deserted
\nwife had not committed adultery, she
\ncould buy from the shopkeeper all such
\ngoods as were necessary for her and,
\neven if (as was highly likely) the
\nhusband had not authorised her to buy
\nthem, he was liable to pay the
\nshopkeeper for them. But the
\nshopkeeper had a problem. How was
\nhe to know whether the wife at the
\ncounter had been deserted and had not
\ncommitted adultery Sometimes a
\nhusband even placed a notice in the
\nlocal newspaper to the effect, true or
\nuntrue, that his wife had deserted him
\nor had committed adultery and that
\naccordingly he would not be liable to
\npay for her purchase of necessaries.\u2026.
\nThe remnants of \u201ecoverture sowed the seeds for the
\nintroduction of \u201eCriminal Conversation as an actionable
\ntort by a husband against his wifes paramour in
\nEngland.
\nCriminal Conversation as a tort, gave a married man
\nthe right to claim damages against the man who had
\nentered into a sexual relationship with his wife. The
\n9
\nconsent of the wife to the relationship, did not affect the
\nentitlement of her husband to sue.
\nThe legal position of matrimonial wrongs underwent a
\nsignificant change with the passing of the Matrimonial
\nCauses Act, 1857 in England.10 Section 59 of this Act
\nabolished the Common Law action for \u201ccriminal
\nconversation\u201d.11 Section 33 empowered the Courts to
\naward damages to the husband of the paramour for
\nadultery.12 The claim for damages for adultery was to be
\ntried on the same principles, and in the same manner, as
\nactions for \u201ecriminal conversation which were formerly
\ntried at Common Law.13
\nThe status of the wife, however, even after the passing
\nof the Matrimonial Causes Act, 1857 remained as<\/p>\n

10 Matrimonial Causes Act 1857; 1857 (20 & 21 Vict.) C. 85
\n11 LIX. No Action for Criminal Conversation:
\n\u201cAfter this Act shall have come into operation no Action shall be maintainable in England for
\nCriminal Conversation.\u201d
\n12 XXXIII. Husband may claim Damages from Adulterers:
\n\u201cAny Husband may, either in a Petition for Dissolution of Marriage or for Judicial
\nSeparation, or in a Petition limited to such Object only, claim Damages from any Person on
\nthe Ground of his having committed Adultery with the Wife of such Petitioner, and such
\nPetition shall be served on the alleged Adulterer and the Wife, unless the Court shall
\ndispense with such Service, or direct some other Service to be substituted; and the Claim
\nmade by every such Petition shall be heard and tried on the same principle, in the same
\nmanner, and subject to the same or the like rules and regulations as actions for criminal
\nconversations are now tried and decided in Courts of Common Law; and all the enactments
\nherein contain with reference to the hearing and decision of Petitions to the Courts shall, so
\nfar as may be necessary, be deemed applicable to the hearing and decision of Petitions
\npresented under this enactment..
\n13 Id.
\n10
\n\u201eproperty of the husband, since women had no right to
\nsue either their adulterous husband or his paramour.
\nGender equality between the spouses came to be
\nrecognised in some measure in England, with the passing
\nof the Matrimonial Causes Act, 1923 which made
\n\u201eadultery a ground for divorce, available to both spouses,
\ninstead of only the husband of the adultrous wife. The
\nright of the husband to claim damages from his wifes
\nparamour came to be abolished by The Law Reform
\n(Miscellaneous Provisions) Act of 1970 on January 1,
\n1971. In England, adultery has always been a civil wrong,
\nand not a penal offence.
\n5. SECTION 497 \u2013 HISTORICAL BACKGROUND
\n5.1. The Indo-Brahmanic traditions prevalent in India
\nmandated the chastity of a woman to be regarded
\nas her prime virtue, to be closely guarded to
\nensure the purity of the male bloodline. The
\nobjective was not only to protect the bodily
\nintegrity of the woman, but to ensure that the
\nhusband retains control over her sexuality,
\n11
\nconfirming her \u201epurity in order to ensure the
\npurity of his own bloodline.
\n14
\n5.2. The first draft of the I.P.C. released by the Law
\nCommission of India in 1837 did not include
\n\u201cadultery\u201d as an offence. Lord Macaulay was of
\nthe view that adultery or marital infidelity was a
\nprivate wrong between the parties, and not a
\ncriminal offence.15
\nThe views of Lord Macaulay were, however,
\noverruled by the other members of the Law
\nCommission, who were of the opinion that the
\nexisting remedy for \u201eadultery under Common Law
\nwould be insufficient for the \u201epoor natives, who
\nwould have no recourse against the paramour of
\ntheir wife.16
\n5.3. The debate that took place in order to determine
\nwhether \u201eadultery should be a criminal offence in
\nIndia was recorded in \u201eNote Q of \u201eA Penal Code<\/p>\n

14 Uma Chakravarti, Gendering Caste Through a Feminist Lens, STREE Publications (2003)
\nat page 71.
\n15 156th Report on the Indian Penal Code (Vol. I), Law Commission of India at para 9.43 at
\npage 169
\nAvailable at: http:\/\/lawcommissionofindia.nic.in\/101-169\/Report156Vol1.pdf
\n16 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on
\nthe Indian Penal Code
\n12
\nprepared by the Indian Law Commissioners\u2018 17.
\nThe existing laws18 for the punishment of
\nadultery were considered to be altogether
\ninefficacious for preventing the injured husband
\nfrom taking matters into his own hands.
\nThe Law Commissioners considered that by
\nnot treating \u201eadultery as a criminal offence, it
\nmay give sanction to immorality. The Report19
\nstates:
\nSome who admit that the penal
\nlaw now existing on this subject is
\nin practice of little or no use, yet
\nthink that the Code ought to
\ncontain a provision against
\nadultery. They think that such a
\nprovision, though inefficacious for
\nthe repressing of vice, would be
\ncreditable to the Indian
\nGovernment, and that by omitting
\nsuch a provision we should give a
\nsanction to immorality. They say,
\nand we believe with truth, that the
\nhigher class of natives consider
\nthe existing penal law on the
\nsubject as far too lenient, and are
\nunable to understand on what
\nprinciple adultery is treated with<\/p>\n

17 A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas
\nBabington Macaulay, Note Q
\n18 The laws governing adultery in the Colonial areas were laid down in Regulation XVII of
\n1817, and Regulation VII of 1819; the Law Commissioners observed that the strict
\nevidentiary and procedural requirements, deter the people from seeking redress.
\n19 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on
\nthe Indian Penal Code
\n13
\nmore tenderness than forgery or
\nperjury.
\n\u2026That some classes of the natives
\nof India disapprove of the lenity
\nwith which adultery is now
\npunished we fully believe, but this
\nin our opinion is a strong
\nargument against punishing
\nadultery at all. There are only two
\ncourses which in our opinion can
\nproperly be followed with respect
\nto this and other great
\nimmoralities. They ought to be
\npunished very severely, or they
\nought not to be punished at all.
\nThe circumstance that they are left
\naltogether unpunished does not
\nprove that the Legislature does not
\nregard them with disapprobation.
\nBut when they are made
\npunishable the degree of severity
\nof the punishment will always be
\nconsidered as indicating the
\ndegree of disapprobation with
\nwhich the Legislature regards
\nthem. We have no doubt that the
\nnatives would be far less shocked
\nby the total silence of the penal
\nlaw touching adultery than by
\nseeing an adulterer sent to prison
\nfor a few months while a coiner is
\nimprisoned for fourteen years.
\n(Emphasis supplied)
\nThe Law Commissioners in their Report (supra)
\nfurther stated:
\n\u2026..The population seems to be
\ndivided into two classes \u2013 those
\n14
\nwhom neither the existing
\npunishment nor any punishment
\nwhich we should feel ourselves
\njustified in proposing will satisfy,
\nand those who consider the injury
\nproduced by adultery as one for
\nwhich a pecuniary compensation
\nwill sufficiently atone. Those
\nwhose feelings of honour are
\npainfully affected by the infidelity
\nof their wives will not apply to the
\ntribunals at all. Those whose
\nfeelings are less delicate will be
\nsatisfied by a payment of money.
\nUnder such circumstances we
\nthink it best to treat adultery
\nmerely as a civil injury.
\n\u2026No body proposes that adultery
\nshould be punished with a
\nseverity at all proportioned to the
\nmisery which it produces in cases
\nwhere there is strong affection and
\na quick sensibility to family
\nhonour. We apprehend that among
\nthe higher classes in this country
\nnothing short of death would be
\nconsidered as an expiation for
\nsuch a wrong. In such a state of
\nsociety we think it far better that
\nthe law should inflict no
\npunishment than that it should
\ninflict a punishment which would
\nbe regarded as absurdly and
\nimmorally lenient.
\n(Emphasis supplied)
\nThe Law Commissioners considered the plight
\nof women in this country, which was much worse
\nthan that of women in France and England. \u201eNote
\n15
\nQ (surpa) records this as the reason for not
\npunishing women for the offence of adultery.
\nThe relevant extract of \u201eNote Q is reproduced
\nherein below:
\nThere is yet another consideration
\nwhich we cannot wholly leave out
\nof sight. Though we well know that
\nthe dearest interests of the human
\nrace are closely connected with the
\nchastity of women, and the
\nsacredness of the nuptial contract,
\nwe cannot but feel that there are
\nsome peculiarities in the state of
\nsociety in this country which may
\nwell lead a humane man to pause
\nbefore he determines to punish the
\ninfidelity of wives. The condition of
\nthe women of this country is
\nunhappily very different from that
\nof the women of England and
\nFrance. They are married while still
\nchildren. They are often neglected
\nfor other wives while still young.
\nThey share the attention (sic) of a
\nhusband with several rivals. To
\nmake laws for punishing the
\ninconstancy of the wife while the
\nlaw admits the privilege of the
\nhusband to fill his zenana with
\nwomen, is a course which we are
\nmost reluctant to adopt. We are not
\nso visionary as to think of attacking
\nby law an evil so deeply rooted in
\nthe manners of the people of this
\ncountry as polygamy. We leave it to
\nthe slow, but we trust the certain
\noperation of education and of time.
\nBut while it exists, while it
\n16
\ncontinues to produce its never
\nfailing effects on the happiness and
\nrespectability of women, we are not
\ninclined to throw into a scale
\nalready too much depressed the
\nadditional weight of the penal law.
\nWe have given the reasons which
\nlead us to believe that any
\nenactment on this subject would be
\nnugatory. And we are inclined to
\nthink that if not nugatory it would
\nbe oppressive. It would strengthen
\nhands already too strong. It would
\nweaken a class already too weak.
\nIt will be time enough to guard the
\nmatrimonial contract by penal
\nsanctions when that contract
\nbecomes just, reasonable, and
\nmutually beneficial.
\n(Emphasis supplied)
\nColonel Sleeman opposed the reasoning of the
\nLaw Commissioners on this subject. The
\n\u201ebackwardness of the natives to take recourse to
\nthe courts for redress in cases of adultery, arose
\nfrom \u201ethe utter hopelessness on their part of
\ngetting a conviction. He was of the view that if
\nadultery is not made a crime, the adulterous
\nwives will alone bear the brunt of the rage of their
\nhusbands. They might be tortured or even
\npoisoned. In his view, offences such as adultery
\n17
\nwere inexcusable and must be punished. Colonel
\nSleeman observed:
\n\u201c The silence of the Penal Code
\nwill give still greater impunity to
\nthe seducers, while their victims
\nwill, in three cases out of four, be
\nmurdered, or driven to commit
\nsuicide. Where husbands are in
\nthe habit of poisoning their guilty
\nwives from the want of legal
\nmeans of redress, they will
\nsometimes poison those who are
\nsuspected upon insufficient
\ngrounds, and the innocent will
\nsuffer.
\n\u2026Sometimes the poorest
\npersons will refuse pecuniary
\ncompensations; but generally they
\nwill be glad to get what the heads
\nof their caste or circle of society
\nmay consider sufficient to defray
\nthe expenses of a second
\nmarriage. They dare not live in
\nadultery, they would be outcasts if
\nthey did; they must be married
\naccording to the forms of their
\ncaste, and it is reasonable that the
\nseducer of the wife should be
\nmade to defray these expenses for
\nthe injured husband. The rich will,
\nof course, always refuse
\npecuniary compensation, and for
\nthe same reason that they would
\nnever prosecute the seducer in a
\ncivil court. The poor could never
\nafford so to prosecute in such a
\ncourt; and, as I have said, the
\nsilence of the Penal Code would be
\na solemn pledge of impunity to the
\n18
\nguilty seducer, under the efficient
\ngovernment like ours, that can
\nprevent the husband and father
\nfrom revenging themselves except
\nupon the females. 20
\n(Emphasis supplied)
\nThis debate along with the recommendation of
\nthe Law Commissioners was considered by the
\nIndian Law Commissioners while drafting the
\nIndian Penal Code.
\n5.4. The relevant extract from the discussion on
\nwhether to criminalize adultery was as follows:
\n\u201cWe have observed that adultery is
\nrecognised as an offence by the existing
\nlaws of all the Presidencies, and that
\nan Act has been lately passed by the
\nGovernor-General of India in Council for
\nregulating the punishment of the offence
\nin the Bombay territories. Adultery is
\npunishable by the Code Penal of
\nFrance. It is provided for in the Code of
\nLouisiana. The following are Mr.
\nLivingston\u2018s observations on the
\nsubject. Whether adultery should be
\nconsidered as an offence against public
\nmorality, or left to the operation of the
\ncivil laws, has been the subject of much
\ndiscussion. As far as I am informed, it
\nfigures in the penal law of all nations
\nexcept the English; and some of their
\nmost celebrated lawyers have
\nconsidered the omission as a defect.<\/p>\n

20 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on
\nthe Indian Penal Code
\n19
\nNeither the immorality of the act, nor
\nits injurious consequences on the
\nhappiness of females, and very
\nfrequently on the peace of society and
\nthe lives of its members, can be denied.
\nThe reason then why it should go
\nunpunished does not seem very clear. It
\nis emphatically one of that nature to
\nwhich I have just referred, in which the
\nresentment of the injured party will
\nprompt him to take vengeance into his
\nown hands, and commit a greater
\noffence, if the laws of his country refuse
\nto punish the lesser. It is the nature of
\nman, and no legislation can alter it, to
\nprotect himself where the laws refuse
\ntheir aid; very frequently where they do
\nnot; but where they will not give
\nprotection against injury, it is in vain
\nthat they attempt to punish him who
\nsupplies by his own energy their
\nremissness. Where the law refuses to
\npunish this offence, the injured party
\nwill do it for himself, he will break the
\npublic peace, and commit the greatest of
\nall crimes, and he is rarely or never
\npunished. Assaults, duels,
\nassassinations, poisonings, will be the
\nconsequence. They cannot be
\nprevented; but, perhaps, by giving the
\naid of the law to punish the offence
\nwhich they are intended to avenge, they
\nwill be less frequent; and it will, by
\ntaking away the pretext for the
\natrocious acts, in a great measure
\ninsure the infliction of the punishment
\nthey deserve. It is for these reasons
\nthat the offence of adultery forms a
\nchapter of this title.
\nHaving given mature consideration to
\nthe subject, we have, after some
\n20
\nhesitation, come to the conclusion that it
\nis not advisable to exclude this offence
\nfrom the Code. We think the reasons for
\ncontinuing to treat it as a subject for the
\ncognizance of the criminal courts
\npreponderate.\u2026.
\n\u2026While we think that the offence of
\nadultery ought not to be omitted from
\nthe Code, we would limit its cognizance
\nto adultery committed with a married
\nwoman, and considering that there is
\nmuch weight in the last remark in Note
\nQ, regarding the condition of the women
\nof this country, in deference to it we
\nwould render the male offender alone
\nliable to punishment. We would,
\nhowever, put the parties accused of
\nadultery on trial together, and empower
\nthe Court, in the event of their
\nconviction, to pronounce a decree of
\ndivorce against the guilty woman, if the
\nhusband sues for it, at the same time
\nthat her paramour is sentenced to
\npunishment by imprisonment or fine. By
\nMr. Livingstone\u2018s Code, the woman
\nforfeits her =matrimonial gains\u2018, but is
\nnot liable to other punishment.
\nWe would adopt Colonel Sleeman\u2018s
\nsuggestion as to the punishment of the
\nmale offender, limiting it to
\nimprisonment not exceeding five years,
\ninstead of seven years allowed at
\npresent, and sanctioning the imposition
\nof a fine payable to the husband as an
\nalternative, or in addition.
\n21
\n(Emphasis supplied)<\/p>\n

21 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on
\nthe Indian Penal Code
\n21
\n5.5. It was in this backdrop that Section 497 came to
\nbe included in the I.P.C.
\n6. THE QUEST FOR REFORM
\n6.1. In June 1971, the 42nd Report of the Law
\nCommission of India22 analysed various
\nprovisions of the I.P.C. and made several
\nimportant recommendations. With respect to the
\noffence of \u201eadultery, the Law Commission
\nrecommended that the adulterous woman must
\nbe made equally liable for prosecution, and the
\npunishment be reduced from 5 years to 2 years.
\nThis was however, not given effect to.
\n6.2. In August 1997, the Law Commission of India in
\nits 156th Report23 noted that the offence of
\nadultery under Section 497 is very limited in
\nscope in comparison to the misconduct of
\nadultery in divorce (civil proceedings). The section
\nconfers only upon the husband the right to<\/p>\n

22 42nd Report on the Indian Penal Code, Law Commission of India
\nAvailable at: http:\/\/lawcommissionofindia.nic.in\/1-50\/report42.pdf
\n23 156th Report on the Indian Penal Code (Vol. I), Law Commission of India, pages 169 – 172
\nAvailable at: http:\/\/lawcommissionofindia.nic.in\/101-169\/Report156Vol1.pdf
\n22
\nprosecute the adulterous male, but does not
\nconfer any right on the aggrieved wife to
\nprosecute her adultererous husband. It was
\nrecommended to introduce an amendment to
\nincorporate the concept of equality between sexes
\nin marriage vis-\u00e0-vis the offence of adultery. The
\nproposed change was to reflect the
\ntransformation of womens status in Indian
\nsociety.
\nHowever, the recommendation was not
\naccepted.
\n6.3. In March 2003, the Malimath Committee on
\nReforms of Criminal Justice System24, was
\nconstituted by the Government of India, which
\nconsidered comprehensive measures for
\nrevamping the Criminal Justice System. The
\nMalimath Committee made the following
\nrecommendation with respect to \u201cAdultery\u201d:
\n\u201c16.3.1 A man commits the offence
\nof adultery if he has sexual<\/p>\n

24 Report of the Committee on Reforms of Criminal Justice System, Government of India,
\nMinistry of Home Affairs, chaired by Justice V.S. Malimath, (2003)
\nAvailable at:https:\/\/mha.gov.in\/sites\/default\/files\/criminal_justice_system.pdf
\n23
\nintercourse with the wife of
\nanother man without the consent
\nor connivance of the husband.
\nThe object of this Section is to
\npreserve the sanctity of the
\nmarriage. The society abhors
\nmarital infidelity. Therefore, there
\nis no good reason for not meting
\nout similar treatment to wife who
\nhas sexual intercourse with a
\nmarried man.
\n16.3.2 The Committee therefore
\nsuggests that Section 497 of the
\nI.P.C. should be suitably amended
\nto the effect that whosoever has
\nsexual intercourse with the spouse
\nof any other person is guilty of
\nadultery\u2026\u2026
\n(Emphasis supplied)
\nThe recommendations of the Malimath
\nCommittee on the amendment of Section 497
\nwere referred to the Law Commission of India,
\nwhich took up the matter for study and
\nexamination. The same is pending consideration.
\n7. CONTEMPORARY INTERNATIONAL JURISPRUDENCE
\nBefore addressing the issue of the constitutional
\nvalidity of Section 497 I.P.C., it would be of interest to
\nreview how \u201eadultery is treated in various jurisdictions
\naround the world.
\n24
\nAdultery has been defined differently across various
\njurisdictions. For instance, adultery charges may require
\nthe adulterous relationship to be \u201copen and notorious,\u201d25
\nor be more than a single act of infidelity, or require
\ncohabitation between the adulterer and the adulteress.
\nSuch a definition would require a finding on the degree of
\ninfidelity.
\n26 In other instances, the spouses may also be
\npunishable for adultery. Such a provision raises a doubt
\nas to how that may secure the relationship between the
\nspouses and the institution of marriage. Another
\nvariation, in some jurisdictions is that cognizance of the
\noffence of adultery is taken only at the instance of the
\nState, and its enforcement is generally a rarity.
\n7.1. Various legal systems have found adulterous
\nconduct sufficiently injurious to justify some form
\nof criminal sanction. Such conduct is one, which
\nthe society is not only unwilling to approve, but
\nalso attaches a criminal label to it.
\nUnited States of America<\/p>\n

25 Illinois Criminal Code, 720 ILCS 5\/11-35, Adultery
\n\u201c(a) A person commits adultery when he or she has sexual intercourse with another not his or
\nher spouse, if the behavior is open and notorious,\u2026\u201d
\n26 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal Of
\nFamily Law 45, 51-52 (1991)
\n25
\nIn the United States of America, 17 out of 50
\nStates continue to treat \u201eadultery as a criminal
\noffence under the State law.27 The
\ncharacterization of the offence differs from State
\nto State.
\nIn the case of Oliverson v. West Valley City28,
\nthe constitutionality of the Utah adultery
\nstatute29 was challenged. It was contended that
\nthe statute offends the right to privacy and
\nviolates substantive due process of law under the
\nU.S. Constitution. The U.S. Court held that
\nadultery is a transgression against the
\nrelationship of marriage which the law endeavors
\nto protect. The State of Utah had an interest in
\npreventing adultery. Whether to use criminal
\nsanction was considered a matter particularly
\nwithin the ambit of the legislature. Given the
\nspecial interest of the State, it was considered
\nrational to classify adultery as a crime.<\/p>\n

27 Abhinav Sekhri, The Good, The Bad, and The Adulterous: Criminal Law and Adultery in
\nIndia, 10 Socio Legal Review 47 (2014)
\n28 875 F. Supp. 1465
\n29 Utah Code Ann. 76-7-103, (1) A married person commits adultery when he voluntarily has
\nsexual intercourse with a person other than his spouse. (2) Adultery is a class B
\nmisdemeanour.
\n26
\nA similar provision exists in the State of New
\nYork, wherein adultery is treated as a Class B
\nmisdemeanor.
\n30
\nBy way of contrast, in the State of North
\nCarolina, it was held in the Judgment of Hobbs v.
\nSmith31, that adultery should not be treated as a
\ncriminal offence. The Superior Court of North
\nCarolina, relied on the judgment of the U.S.
\nSupreme Court, in Lawrence v. Texas32 wherein it
\nwas recognized that the right to liberty provides
\nsubstantial protection to consenting adults with
\nrespect to decisions regarding their private sexual
\nconduct. The decision of an individual to commit
\nadultery is a personal decision, which is
\nsufficiently similar to other personal choices
\nregarding marriage, family, procreation,
\ncontraception, and sexuality, which fall within
\nthe area of privacy. Following this reasoning in
\nLawrence, the Superior Court of the State of<\/p>\n

30 New York Penal Laws, Article 255.17-Adultery, \u201cA person is guilty of adultery when he
\nengages in sexual intercourse with another person at a time when he has a living spouse, or
\nthe other person has a living spouse. Adultery is a class B misdemeanour.\u201d
\n31 No. 15 CVS 5646 (2017) [Superior Court of North Carolina)
\n32 539 US 558 (2003)
\n27
\nNorth Carolina held that the State Law
\ncriminalizing adultery violated the substantive
\ndue process, and the right to liberty under the
\nFourteenth Amendment to the U.S. Constitution,
\nand the provision criminalizing adultery was
\ndeclared unconstitutional.
\nCanada
\nIn Canada, the Criminal Code of Canada under
\nSection 172 imposes criminal sanctions for
\nadulterous conduct. This provision was
\nintroduced in 191833, and continues to remain on
\nthe Criminal Code.
\nThe Criminal Code of Canada prohibits
\nendangering the morals of children in a home
\nwhere one \u201cparticipates in adultery or sexual
\nimmorality or indulges in habitual drunkenness
\nor any other form of vice.\u201d<\/p>\n

33 Criminal Code of Canada, 1985, Section 172, \u201c(1) Every one who, in the home of a child,
\nparticipates in adultery or sexual immorality or indulges in habitual drunkenness or any
\nother form of vice, and thereby endangers the morals of the child or renders the home an
\nunfit place for the child to be in, is guilty of an indictable offence and liable to imprisonment
\nfor a term not exceeding two years.
\n(2) For the purposes of this section, child means a person who is or appears to be under
\nthe age of eighteen years.
\n28
\nFurthermore, Canada has a provision for
\ngranting divorce in cases of \u201cbreakdown of
\nmarriages\u201d, and adultery is a ground for
\nestablishing the same.34
\nMalaysia
\nIn Malaysia, adultery is punishable as a crime
\nunder the Islamic Laws. However, the Law Reform
\n(Marriage and Divorce) Act, 1976 made it a civil
\nwrong, for all non-Muslims. Similar to the
\nposition in Canada, this Act makes adultery a
\nground for granting divorce, as it is a proof of
\n\u201cBreakdown of Marriage\u201d.35 Interestingly though,
\nthe Act also allows either spouse, to be an
\naggrieved party and claim damages from the
\nadulterer or adulteress.36<\/p>\n

34 Divorce Act, 1968, Section 8 (1) A court of competent jurisdiction may, on application by
\neither or both spouses, grant a divorce to the spouse or spouses on the ground that there
\nhas been a breakdown of their marriage.
\n(2) Breakdown of a marriage is established only if:
\n(a) \u2026..
\n(b) the spouse against whom the divorce proceeding is brought has, since celebration of the
\nmarriage,
\n(i) committed adultery, or \u2026..
\n35 S. 54(1)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,
\n\u201c54. (1) In its inquiry into the facts and circumstances alleged as causing or leading to the
\nbreakdown of the marriage, the court shall have regard to one or more of the following facts,
\nthat is to say:
\n(a) that the respondent has committed adultery and the petitioner finds it intolerable to live
\nwith the respondent\u2026..
\n36 S. 58, Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,
\n29
\nJapan
\nIn Japan, the provision for adultery was
\nsomewhat similar to the present Section 497 of
\nI.P.C.; it punished the woman and the adulterer
\nonly on the basis of the complaint filed by the
\nhusband. In case the act of adultery was
\ncommitted with the consent of the husband, there
\nwould be no valid demand for prosecution of the
\noffence37. This provision has since been deleted.38
\nAdultery is now only a ground for divorce in
\nJapan under the Civil Code.39
\nSouth Africa<\/p>\n

58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a party to
\nthe marriage praying for divorce and alleging adultery, the party shall make the alleged
\nadulterer or adulteress a co-respondent, unless excused by the court on special grounds
\nfrom doing so.
\n(2) A petition under subsection (1) may include a prayer that the co-respondent be
\ncondemned in damages in respect of the alleged adultery.
\n(3) Where damages have been claimed against a co-respondent\u2014 (a) if, after the close of the
\nevidence for the petitioner, the court is of the opinion that there is not sufficient evidence
\nagainst the co-respondent to justify requiring him or her to reply, the co-respondent shall be
\ndischarged from the proceedings; or (b) if, at the conclusion of the hearing, the court is
\nsatisfied that adultery between the respondent and co-respondent has been proved, the
\ncourt may award the petitioner such damages as it may think fit, but so that the award
\nshall not include any exemplary or punitive element.
\n37 S. 183, Penal Code, 1907 [Japan], \u201cWhoever commits adultery with a married woman will
\nbe punished by prison upto two years. The same applies to the other party of the adultery.
\nThese offences are only prosecuted on demand of the husband. If the husband has allowed
\nthe Adultery, his demand is not valid. [ as translated by Karl-Friedrich Lenz, in History of
\nLaw in Japan since 1868, ed. Wilhelm Rohl, published by Brill, 2005, at page 623]
\n38 H. Meyers, Revision of Criminal Code of Japan Washington Law Review & State Bar
\nJournal, Vol. 25, (1950) at pp. 104-134
\n39 Article 770, Civil Code, 1896. [Japan], Article 770 (1) Only in the cases stated
\nin the following items may either husband or wife file a suit for divorce: (i) if a spouse has
\ncommitted an act of unchastity; \u2026.
\n30
\nIn South Africa, in the case of DE v. RH40 The
\nConstitutional Court of South Africa struck down
\nadultery as a ground for seeking compensation by
\nthe aggrieved persons. The Court relied on an
\nearlier judgment of Green v. Fitzgerald41 wherein
\nit was held that the offence of adultery has fallen
\nin disuse, and has ceased to be regarded as a
\ncrime.
\n42 The Court noted that even though
\nadultery was of frequent occurrence in South
\nAfrica, and the reports of divorce cases were daily
\npublished in the newspapers in South Africa, the
\nauthorities took no notice of the offence.
\nTurkey
\nIn Turkey, the decision of the Constitutional
\nCourt of Turkey from 199643 is another instance
\nwhere the Court struck down the provision of
\nadultery as a criminal offence from the Turkish
\nPenal Code of 1926. The Court noted that the
\nprovision was violative of the Right to Equality, as<\/p>\n

40 RH v. DE (594\/2013) [2014] ZASCA 133 (25 September 2014)
\n411914 AD 88
\n42 Id.
\n43 Anayasa Mahkemesi, 1996\/15; 1996\/34 (Sept. 23, 1996)
\nSee also, Anayasa Mahakemsi, 1998\/3; 1998\/28 (June 23, 1998) and Anayasa
\nMahakemsi, 1997\/45. 1998\/48 (July 16, 1998)
\n31
\nguaranteed by the Turkish Constitution since it
\ntreated men and women differently for the same
\nact.
\nSouth Korea
\nIn South Korea, adultery as a criminal offence
\nwas struck down by the Constitutional Court of
\nKorea in, what is popularly known as, the
\nAdultery Case of February 26, 201544. The
\nConstitutional Court of Korea held that Article
\n241, which provided for the offence of adultery,
\nwas unconstitutional as it violated Article 10 of
\nthe Constitution, which promotes the right to
\npersonality, the right to pursue happiness, and
\nthe right to self-determination. The right to selfdetermination
\nconnotes the right to sexual selfdetermination
\nthat is the freedom to choose
\nsexual activities and partners. Article 241 was
\nconsidered to restrict the right to privacy
\nprotected under Article 17 of the Constitution
\nsince it restricts activities arising out of sexual<\/p>\n

44 Adultery Case, 27-1 (A) KCCR 20, February 26, 2015
\n32
\nlife belonging to the intimate private domain.
\nEven though the provision had a legitimate object
\nto preserve marital fidelity between spouses, and
\nmonogamy, the court struck it down as the
\nprovision failed to achieve the \u201cappropriateness of
\nmeans and least restrictiveness\u201d The Court held
\nas follows:
\nIn recent years, the growing
\nperception of the Korean society
\nhas changed in the area of
\nmarriage and sex with the
\nchanges of the traditional family
\nsystem and family members\u2018 role
\nand position, along with rapid
\nspread of individualism and
\nliberal views on sexual life. Sexual
\nlife and love is a private matter,
\nwhich should not be subject to the
\ncontrol of criminal punishment.
\nDespite it is unethical to violate
\nthe marital fidelity, it should not
\nbe punished by criminal law\u2026.
\n\u2026..
\n\u2026The exercise of criminal
\npunishment should be the last
\nresort for the clear danger against
\nsubstantial legal interests and
\nshould be limited at least. It
\nbelongs to a free domain of
\nindividuals for an adult to have
\nvoluntary sexual relationships, but
\nit may be regulated by law when
\nit is expressed and it is against
\nthe good sexual culture and
\n33
\npractice. It would infringe on the
\nright to sexual self-determination
\nand to privacy for a State to
\nintervene and punish sexual life
\nwhich should be subject to sexual
\nmorality and social orders.
\nThe tendency of modern criminal
\nlaw directs that the State should
\nnot exercise its authority in case
\nan act, in essence, belongs to
\npersonal privacy and is not
\nsocially harmful or in evident
\nviolation of legal interests, despite
\nthe act is in contradiction to
\nmorality. According to this
\ntendency, it is a global trend to
\nabolish adultery crimes.
\n(Emphasis supplied)
\nThe Court concluded that it was difficult to see
\nhow criminalization of adultery could any longer
\nserve the public interest of protecting the
\nmonogamy-based marriage system, maintain
\ngood sexual culture, and the marital fidelity
\nbetween spouses. A consideration of Article 241
\nwhich punishes adultery failed to achieve the
\nappropriateness of means and least
\nrestrictiveness. Since the provision excessively
\nrestricted a persons sexual autonomy and
\nprivacy by criminally punishing the private and
\n34
\nintimate domain of sexual life, the said penal
\nprovision was said to have lost the balance of
\nState interest and individual autonomy.
\n8. PREVIOUS CHALLENGES TO ADULTERY IN INDIA
\nThis court has previously considered challenges to
\nSection 497 inter alia on the ground that the impugned
\nSection was violative of Articles 14 and 15 of the
\nConstitution.
\n8.1. In Yusuf Abdul Aziz v. State of Bombay45, Section
\n497 was challenged before this Court inter alia on
\nthe ground that it contravened Articles 14 and 15
\nof the Constitution, since the wife who is pari
\ndelicto with the adulterous man, is not
\npunishable even as an \u201cabettor.\u201d A Constitution
\nBench of this Court took the view that since
\nSection 497 was a special provision for the benefit
\nof women, it was saved by Article 15(3) which is
\nan enabling provision providing for protective
\ndiscrimination.<\/p>\n

45 1954 SCR 930
\n35
\nIn Yusuf Aziz (supra), the Court noted that
\nboth Articles 14 and 15 read together validated
\nSection 497.
\n8.2. Later, in Sowmithri Vishnu v. Union of India &
\nAnr.46, a three-judge bench of this Court
\naddressed a challenge to Section 497 as being
\nunreasonable and arbitrary in the classification
\nmade between men and women, unjustifiably
\ndenied women the right to prosecute her husband
\nunder Section 497.<\/p>\n

It was contended that Section 497 conferred a right only upon the husband of the adulterous woman to prosecute the adulterer; however, no such right was bestowed upon the wife of an adulterous man. The petitioners therein submitted that Section 497 was a flagrant violation of gender discrimination against women. The Court opined that the challenge had no legal basis to rest upon. The Court observed that the argument really centred on the definition, which was required to be re-cast to punish both the male and female offender for the offence of adultery.<\/p>\n

After referring to the recommendations contained in the 42nd Report of the Law Commission of India, the Court noted that there were two opinions on the desirability of retaining Section 497. However it concluded by stating that Section 497 could not be struck down on the ground that it would be desirable to delete it from the statute books.<\/p>\n

The Court repelled the plea on the ground that it is commonly accepted that it is the man who is the \u201eseducer, and not the woman. The Court recognized that this position may have undergone some change over the years, but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the \u201etransformation which the society has undergone.<\/p>\n

8.3. In V. Revathi v. Union of India47, a two-judge bench of this court upheld the constitutional validity of Section 497, I.P.C. and Section 198(2) of the Cr.P.C. The petitioner contended that whether or not the law permitted a husband to prosecute his disloyal wife, a wife cannot be lawfully disabled from prosecuting her disloyal husband. Section 198(2) Cr.P.C. operates as a fetter on the wife in prosecuting her adulterous husband. Hence, the relevant provision is unconstitutional on the ground of obnoxious discrimination.<\/p>\n

This Court held that Section 497 I.P.C. and Section 198(2) Cr.P.C. together form a legislative package. In essence, the former being substantive, and the latter being largely procedural. Women, under these provisions, neither have the right to prosecute, as in case of a wife whose husband has an adulterous relationship with another woman; nor can they be prosecuted as the pari delicto.<\/p>\n

8.4. The view taken by the two-judge bench in Revathi (supra), that the absence of the right of the wife of an adulterous husband to sue him, or his paramour, was well-balanced by the inability of the husband to prosecute his adulterous wife for adultery, cannot be sustained. The wifes inability to prosecute her husband and his paramour, should be equated with the husbands ability to prosecute his wifes paramour.<\/p>\n

9. In the present case, the constitutionality of Section 497 is assailed by the Petitioners on the specific grounds that Section 497 is violative of Articles 14, 15 and 21.<\/p>\n

9.1. Mr. Kaleeswaram Raj learned Counsel appearing for the Petitioners and Ms. Meenakshi Arora, learned Senior Counsel appearing for the Intervenors inter alia submitted that Section 497 criminalizes adultery based on a classification made on sex alone. Such a classification bears no rational nexus with the object sought to be achieved and is hence discriminatory.<\/p>\n

It was further submitted that Section 497 offends the Article 14 requirement of equal treatment before the law and discriminates on the basis of marital status. It precludes a woman from initiating criminal proceedings. Further, the consent of the woman is irrelevant to the offence. Reliance was placed in this regard on the judgment of this Court in W. Kalyani v. State48. The Petitioners submit that the age-old concept of the wife being the property of her husband, who can easily fall prey to seduction by another man, can no longer be justified as a rational basis for the classification made under Section 497. An argument was made that the \u201eprotection given to women under Section 497 not only highlights her lack of sexual autonomy, but also ignores the social repercussions of such an offence.<\/p>\n

The Petitioners have contended that Section 497 of the I.P.C. is violative of the fundamental right to privacy under Article 21, since the choice of a partner with whom she could be intimate, falls squarely within the area of autonomy over a persons sexuality. It was submitted that each individual has an unfettered right (whether married or not; whether man or woman) to engage in sexual intercourse outside his or her marital relationship.<\/p>\n

The right to privacy is an inalienable right, closely associated with the innate dignity of an individual, and the right to autonomy and selfdetermination to take decisions. Reliance was placed on the judgment in Shafin Jahan v. Asokan K.M. & Ors.49 where this Court observed that each individual is guaranteed the freedom in determining the choice of ones partner, and any interference by the State in these matters, would have a serious chilling effect on the exercise of the freedoms guaranteed by the Constitution.<\/p>\n

The Petitioners placed reliance on the judgment of K.S. Puttaswamy v. Union of India50 wherein a nine-judge bench of this Court held that the right to make decisions on vital matters concerning ones life are inviolable aspects of human personality. This Court held that:<\/p>\n

169. \u2026.. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action\u2026. (Emphasis supplied)<\/p>\n

The Petitioners and Intervenors have prayed for striking down Section 479 I.P.C. and Section 198(2) of the Cr.P.C. as being unconstitutional, unjust, illegal, arbitrary, and violative of the Fundamental Rights of citizens.<\/p>\n

9.2. On the other hand, Ms. Pinky Anand, learned ASG forcefully submitted that adultery must be retained as a criminal offence in the I.P.C. She based her argument on the fact that adultery has the effect of breaking up the family which is the fundamental unit in society. Adultery is undoubtedly morally abhorrent in marriage, and no less an offence than the offences of battery, or assault. By deterring individuals from engaging in conduct which is potentially harmful to a marital relationship, Section 497 is protecting the institution of marriage, and promoting social wellbeing.<\/p>\n

The Respondents submit that an act which outrages the morality of society, and harms its members, ought to be punished as a crime. Adultery falls squarely within this definition. The learned ASG further submitted that adultery is not an act that merely affects just two people; it has an impact on the aggrieved spouse, children, as well as society. Any affront to the marital bond is an affront to the society at large. The act of adultery affects the matrimonial rights of the spouse, and causes substantial mental injury.<\/p>\n

Adultery is essentially violence perpetrated by an outsider, with complete knowledge and intention, on the family which is the basic unit of a society.<\/p>\n

It was argued on behalf of the Union of India that Section 497 is valid on the ground of affirmative action. All discrimination in favour of women is saved by Article 15(3), and hence were exempted from punishment. Further, an underinclusive definition is not necessarily discriminatory. The contention that Section 497 does not account for instances where the husband has sexual relations outside his marriage would not render it unconstitutional. It was further submitted that the sanctity of family life, and the right to marriage are fundamental rights comprehended in the right to life under Article 21. An outsider who violates and injures these rights must be deterred and punished in accordance with criminal law. It was finally suggested that if this Court finds any part of this Section violative of the Constitutional provisions, the Court should read down that part, in so far as it is violative of the Constitution but retain the provision.<\/p>\n

DISCUSSION AND ANALYSIS<\/p>\n

10. Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution.<\/p>\n

11. Section 497 of the I.P.C. it is placed under Chapter XX of \u201cOffences Relating to Marriage\u201d. The provision of Section 497 is replete with anomalies and incongruities, such as:<\/p>\n

i. Under Section 497, it is only the male-paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an \u201eabettor.<\/p>\n

The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery51.<\/p>\n

ii. The Section only gives the right to prosecute to the husband of the adulterous wife. On the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his paramour.<\/p>\n

iii. Section 497 I.P.C. read with Section 198(2) of the Cr.P.C. only empowers the aggrieved husband, of a married wife who has entered into the adulterous relationship to initiate proceedings for the offence of adultery.<\/p>\n

iv. The act of a married man engaging in sexual intercourse with an unmarried or divorced woman, does not constitute \u201eadultery under Section 497.<\/p>\n

v. If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery. The anomalies and inconsistencies in Section 497 as stated above, would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory.<\/p>\n

12. The constitutional validity of section 497 has to be tested on the anvil of Article 14 of the Constitution.<\/p>\n

12.1. Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and<\/p>\n

15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination.<\/p>\n

12.2.Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is permissible if two conditions are satisfied:<\/p>\n

i. The classification is made on the basis of an \u201eintelligible differentia which distinguishes persons or things that are grouped together, and separates them from the rest of the group; and ii. The said intelligible differentia must have a rational nexus with the object sought to be achieved by the legal provision.<\/p>\n

The discriminatory provisions in Section 497 have to be considered with reference to the classification made. The classification must have some rational basis,52 or a nexus with the object sought to be achieved.<\/p>\n

With respect to the offence of adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved.<\/p>\n

Section 497 of the I.P.C., makes two classifications:<\/p>\n

i. The first classification is based on who has the right to prosecute:<\/p>\n

It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person given the right to prosecute for the offence of adultery. Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour.<\/p>\n

52 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (A legislation may not be amenable to a challenge on the ground of violation of Article 14 of the Constitution if its intention is to give effect to Articles 15 and 16 or when the differentiation is not unreasonable or arbitrary).<\/p>\n

ii. The second classification is based on who can be prosecuted.<\/p>\n

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an \u201cabettor\u201d to the offence.<\/p>\n

The aforesaid classifications were based on the historical context in 1860 when the I.P.C. was enacted. At that point of time, women had no rights independent of their husbands, and were treated as chattel or \u201eproperty of their husbands. Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a \u201etheft of his property, for which he could proceed to prosecute the offender.<\/p>\n

The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone.<\/p>\n

12.3.A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14. Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article<\/p>\n

14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.<\/p>\n

13. A law which could have been justified at the time of its enactment with the passage of time may become outdated and discriminatory with the evolution of society and changed circumstances.53 What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic.<\/p>\n

53 Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222; See also Ratan Arya v. State of Tamil Nadu, (1986) 3 SCC 385<\/p>\n

A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality.<\/p>\n

Section 497 of the I.P.C. was framed in the historical context that the infidelity of the wife should not be punished because of the plight of women in this country during the 1860s. Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals.55 This situation is not true 155 years after the provision was framed. With the passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change. The historical background in which Section 497 was framed, is no longer relevant in contemporary society. It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a \u201evictim, and the male offender is the \u201eseducer.<\/p>\n

54 John Vallamattom v. Union of India, (2003) 6 SCC 611<\/p>\n

55 =A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q Section 497 fails to consider both men and women as equally autonomous individuals in society. In Anuj Garg v. Hotel Assn. of India,<\/p>\n

56 this Court held that:<\/p>\n

20. At the very outset we want to define the contours of the discussion which is going to ensue. Firstly, the issue floated by the State is very significant, nonetheless it does not fall in the same class as that of rights which it comes in conflict with, ontologically. Secondly, the issue at hand has no social spillovers. The rights of women as individuals rest beyond doubts in this age. If we consider (various strands of) feminist jurisprudence as also identity politics, it is clear that time has come that we take leave of the theme encapsulated under Section 30. And thirdly we will also focus our attention on the interplay of doctrines of self-determination and an individual’s best interests. \u2026\u2026..<\/p>\n

26. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria. The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grassroot democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, pilots, et. al. …<\/p>\n

(Emphasis supplied)<\/p>\n

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 stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.<\/p>\n

There is therefore, no justification for continuance of Section 497 of the I.P.C. as framed in 1860, to remain on the statute book.<\/p>\n

14. Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favour of women and children, to protect and uplift this class of citizens. Section 497 is a penal provision for the offence of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.<\/p>\n

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as \u201ebeneficial legislation. This Court in Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by Lrs. And Ors.57 held that: Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special provision to accord to women socio-economic equality. As a fact Art. 15(3) as a fore runner to common code does animate to make law to accord socio-economic equality to every female citizen of India, irrespective of religion, race, caste or religion.<\/p>\n

In W. Kalyani v. State58 this Court has recognised the gender bias in Section 497. The court in Kalyani (supra) observed that \u201cThe provision is currently under criticism from certain quarters for showing a string gender bias for it makes the position of a married woman almost as a property of her husband.\u201d<\/p>\n

The purpose of Article 15(3) is to further socioeconomic equality of women. It permits special legislation for special classes. However, Article 15(3) cannot operate as a cover for exemption from an offence having penal consequences.<\/p>\n

A Section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination. 15. The Petitioners have contended that the right to privacy under Article 21 would include the right of two adults to enter into a sexual relationship outside marriage.<\/p>\n

The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21.<\/p>\n

In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra): (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which ensures a rational nexus between the object and the means adopted. Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.<\/p>\n

16. The issue remains as to whether \u201eadultery must be treated as a penal offence subject to criminal sanctions, or marital wrong which is a valid ground for divorce.<\/p>\n

16.1.One view is that family being the fundamental unit in society, if the same is disrupted, it would impact stability and progress. The State, therefore, has a legitimate public interest in preserving the institution of marriage. Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victim-less crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his\/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences.<\/p>\n

Throughout history, the State has long retained an area of regulation in the institution of marriage. The State has regulated various aspects of the institution of marriage, by determining the age when an adult can enter into marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas which concern society and public well-being as a whole.<\/p>\n

Adultery has the effect of not only jeopardising the marriage between the two consenting adults, but also affects the growth and moral fibre of children. Hence the State has a legitimate public interest in making it a criminal offence. 16.2.The contra view is that adultery is a marital wrong, which should have only civil consequences. 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.<\/p>\n

To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrong doing. The autonomy of an individual to make his or her choices with respect to his\/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the \u201ebest interest of the individual.<\/p>\n

Andrew Ashworth and Jeremy Horder in their commentary titled \u201ePrinciples of Criminal Law have stated that the traditional starting point of criminalization is the \u201eharm principle the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be proved before the State can classify a wrongful act as a criminal offence.<\/p>\n

John Stuart Mill states that the only purpose for which power can be rightly exercised over the member of a civilized community against his will is to prevent harm to others.<\/p>\n

The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong.61 That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.<\/p>\n

17. In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.<\/p>\n

61 A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles Of Criminalisation, Oxford: Hart Publishing (2011) Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law<\/p>\n

The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.<\/p>\n

The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his\/her personal choices.<\/p>\n

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.<\/p>\n

18. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :<\/p>\n

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.<\/p>\n

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.<\/p>\n

(iii) The decisions in Sowmithri Vishnu (supra), V.Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.<\/p>\n

(INDU MALHOTRA)
\nNew Delhi
\nSeptember 27, 2018<\/p>\n","protected":false},"excerpt":{"rendered":"

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 194 OF 2017 Joseph Shine \u2026Petitioner(s) VERSUS Union of India \u2026Respondent(s) J…<\/p>\n","protected":false},"author":1091,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_customify_content_layout":"","_customify_sidebar":"","_customify_page_header_display":"","_customify_disable_header":"","_customify_disable_header_top":"","_customify_disable_header_main":"","_customify_disable_header_bottom":"","_customify_disable_page_title":"","_customify_disable_content_vertical_padding":"","_customify_disable_footer_top":"","_customify_disable_footer_main":"","_customify_disable_footer_bottom":"","_customify_breadcrumb_display":"","_customify_header_transparent_display":"","footnotes":""},"categories":[65],"tags":[71016,22251,118,71017,43222,4645,71018,25883,45204,67913,56206,71019,71015,43081,71013,28173,71014],"class_list":["post-9924","post","type-post","status-publish","format-standard","hentry","category-judgments","tag-a-p-simester","tag-a-m-khanwilkar","tag-adultry","tag-andreas-von-hirsch","tag-articles-14","tag-cji","tag-crimes","tag-dipak-misra","tag-harms","tag-indu-malhotra","tag-joseph-shine","tag-joseph-shine-versus-union-of-india","tag-offence-of-adultery","tag-section-497","tag-sowmithri-vishnu","tag-unconstitutional","tag-v-rewathi"],"_links":{"self":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/9924","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/users\/1091"}],"replies":[{"embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/comments?post=9924"}],"version-history":[{"count":0,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/posts\/9924\/revisions"}],"wp:attachment":[{"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/media?parent=9924"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/categories?post=9924"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mynation.net\/docs\/wp-json\/wp\/v2\/tags?post=9924"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}