With Supreme Court of India giving back to back progressive judgments one can say that society for sure is changing gradually, be it legalizing gay marriages or banning triple talaq. These judgments are the origin point of change in moral and societal values India is going to witness. On the historic day of 27th September 2018 Supreme Court of India in the case of Joseph Shine v Union of India held that Section 497 of the Indian Penal Code, which criminalizes adultery, as unconstitutional, stating said law is discriminatory. Chief Justice of India, Dipak Misra said it’s time to say that husband is not the master of wife. Women can no longer be treated as chattel where her consent is not appreciated. We cannot slaughter her core values.
Adultery means voluntary sexual intercourse of a married person other than with spouse. The legal definition of adultery however varies from country to country and statute to statute. While at many places adultery is when a woman has voluntary sexual intercourse with a person other than her husband, at other places adultery is when a woman has voluntary sexual intercourse with a third person without her husband’s consent.
Though the modern trend is to decriminalize adultery, historically many cultures have regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery. In most cultures both the man and the woman are equally punishable. However, according to ancient Hindu law, in ancient Greece and in Roman law, only the offending female spouse could be killed and men were not heavily punished.
In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC), 1860. As it stands, this Section makes only men having sexual intercourse with the wives of other men without the consent of their husbands punishable and women cannot be punished even as abettors. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law Commission of India recommended redefining Section 497 to make women also punishable for adultery. The Central Government accordingly has sought the views of all the 30 states in the country regarding the implementation of the said recommendations.
An Analysis of Section 497 prior the judgement
Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
The Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz , Sowmithri Vishnu and V. Revathi.
In the case of Yusuf Aziz the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution.
In the case of Sowmithri and V.Revathi it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband.
It must be mentioned here that all of the above decisions of the Supreme Court had restricted their scope to the determination of Constitutional validity of Section 497 as it stands. They should not be taken as an authority over the question whether Section 497 is required at all.
Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate.