Image Source - Hindustan Times
“ADULTERY MIGHT NOT BE THE CAUSE OF AN UNHAPPY MARRIAGE, BUT IT CAN BE A RESULT OF ONE”
This is what the Apex Court had to say on 27th September, 2018, while striking down the 158- year-old archaic provision of the Indian Penal Code that made adultery a criminal offence  According to the erstwhile S.497 of IPC, Adultery was a criminal offence, punishable with an imprisonment of 5 years or fine or both. Prima facie, it seems a law which is fair enough. But upon a careful study on the wordings of the said provision, the paradox becomes evident. The wordings of S.497 were as under,
“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.”
In layman’s terms, any man indulging in an affair with a married woman without the consent of her husband commits a punishable offence i.e. proceedings under this section can be carried out only if the husband objects to such a relationship between his wife and another man. Also, the woman entering in such an adulterous intercourse was exempted from punishment of any kind.
The entire idea of punishment for adultery can be found in Manu smriti, where Manu observes that, “If men persist in seeking intimate contact with other people’s wives, the king should brand them with such punishments that inspire terror and banish them from the kingdom.” The idea behind this being, that men necessarily are the perpetrators of such illicit activities and women are their victims.
There have been many challenges to this evidently archaic law previously as well. In 1954, the constitutional validity of S.497 was challenged in Yusuf Abdul Aziz v State of Bombay  wherein the constitutional validity of S.497 of IPC was challenged. The exemption of women from the punishments was claimed to be violative of the Article 14 of the Constitution of India, going against the principle of Equality; however, the plea was rejected. Then again in1985, in Sowmithri Vishnu v Union of India , the Supreme Court observed that stability in marriage is an ideal not to be scorned at. Upholding the constitutionality of the said section then, the court observed that the consent of wife in such situations is immaterial and that men are always the seducers. The same view was reiterated in 1988, wherein a wife objected to her husband’s adulterous relationship with another woman, but was labelled as a crusade of one woman against another  . However, on a brighter side there were Law Commission Reports in 1971 and 2003, which strongly advocated that this law be made gender neutral by means of a legislative amendment. But it was only in 2017, that a writ petition was filed before the Apex Court challenging the Constitutional validity of S. 497 of IPC (read with S.198 of CrPC) on the grounds of discrimination and arbitrariness of the provisions. Almost a year later, did a five-judge bench of the Hon’ble Supreme Court strike down both these sections on the grounds of them being violative of Articles 14 and 21  ; however, adultery still remained a valid ground for seeking Divorce.
There was a section of the society that criticized this development on the grounds that S. 497 safeguarded the institution of marriage by preventing the free play of adulterous relationships. Now that it has been made redundant, one may witness an increase in the number of divorces and can potentially encourage extra marital affairs. This was regarded as a step towards the breakdown of the institution of marriage. Also, it was argued that the resultant increase in cases of separation between a couple could negatively impact the children of the house. But these seem to be very small concerns when one looks at the bigger picture.
It can rightfully be said that that the provision was staggeringly sexist, crudely anti-women and definitely violative of equality. It forbade women from having relations outside marriage, but these restrictions did not apply to men. It gave husbands the exclusive right to prosecute the wife’s lover and yet failed to grant wives the same power, i.e. married women could not initiate complaints against their husbands committing adultery. The seemingly misogynistic view that Women are property or chattels of husbands is inherently condemnable. It was this notion that was broken down by the decriminalization of adultery. There have been countless instances where this provision was misused by husbands in matrimonial disputes, where they accused their spouse of having an adulterous relationship without any evidence, which lead to the woman’s reputation being tarnished for life.
Marriage is regarded as a union, which flourishes on an equal partnership between the husband and wife. The said provision regarded the husband as a master in the relationship, reflective of the society’s patriarchal dominance, and yet another instance of patriarchal monarchy over women. In the 21st century, the ancient notions of only men being the perpetrators and women being victims no longer hold true.
An important question that was raised during the entire debate around adultery was that Whether the State can monitor relationships between adults? The only time the state should be allowed in one’s bedroom was when consent was missing. Regulating individual relationships and making them a criminal offence is a direct intrusion in one’s privacy. In Joseph Shine’s case, the constitution bench, headed by the then CJI Misra observed that,
“Subjecting non-violent inter personal relationships to criminal law would amount to an infringement of the Right to Privacy under Article 21 of the Indian Constitution” Article 21  envisages within itself the right to not be subjected to Public Censure and punishments by the state unless it is absolutely necessary and it should be protected at all costs. While deciding this case, the Apex Court went a step further and held that Adultery could not be criminalized at all, thereby limiting the Parliament’s powers in attempt to criminalize it by means of a statute. It held that such a law would be violative of Art.21 and hence unconstitutional. As for the arguments opposing this development, it is of utmost importance to understand the fact adultery may not be regarded as the cause but instead is a result of an unhappy and unstable marriage. Hence, solely blaming the act of adultery for the collapse of a marriage is incorrect.
There were many review petitions filed before the Apex Court, challenging this order. However, in June 2020 the Hon’ble Supreme Court refused to hear them, thereby reiterating its stance on the issue. This paves the way for more such archaic laws (e.g. Marital rapes, etc.) to be analyzed and be done away with if and when the need arises.
1 Joseph Shine v Union of India [WP (Cr.) 194/2017]
2 AIR 1954 SC 321
3 AIR 1985 SC 1618
4 V Revathi v Union of India [AIR 1988 SC 835]
5 Joseph Shine (supra.)
6 Constitution of India, 1950