In
a historic judgement delivered on 27th September, the five judge
bench declared Section 497 of Indian Penal Code which deals with adultery as
unconstitutional. The five judge bench comprised of Chief Justice Dipak Misra
along with Justice A M Khanwilkar, Justice Nariman, Justice D Y Chandrachud and
Justice Indu Malhotra. In a unanimous judgement, the apex court declared the
158 year old section as not only archaic but also undermining gender equality
and treating women as a lesser human being. This judgement was in response to a
PIL filed last year by Italy based Indian Businessman Joseph Shine.
Section
497 declared adultery as a crime meriting a punishment upto five years or a
fine or both. The section states – “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”. The section clearly takes adultery as a crime that a man commits
against another man by indulging in sexual relationship with the latter’s wife.
The woman who has consensual sex is pushed to the margin and not held criminal
or even an abettor. She is a mere victim with no say in her own sex life.
The
section has been often critiqued and challenged for being discriminatory. The
first time the gender disparity was questioned was in 1951 in the Yusuf Aziz
versus State of Bombay case. While the petitioner held that women should be
equally held responsible in such consensual adulterous relationship, Supreme
Court stated that in popular understanding it is the man who is the seducer not
the woman. Hence the woman can only be a victim of adultery not the
perpetrator. While it may seem that the judgement gave respite to women, it
robbed women of sexual agency by reducing them to mere passive partners in an
act of sex.
The
next important judgement with regard to Section 497 was delivered in the
Sowmithri Vishnu versus Union of India case in 1985. In this judgement the SC
not only reiterated the earlier judgement but also stated that women were not
prosecuted because it will hamper the sanctity of the institution of marriage.
Similarly women cannot prosecute their husband for adultery because it will
also challenge the sanctity of marriage. Morality seemed to override notion of
justice and fairness.
In
responding to why the husband’s partner outside marriage should not be convicted,
the Court stated that it will be tantamount to a woman raging a crusade against
another woman. It seems it was assumed that crimes are committed by men against
other men, not by women against other women, hence taking for granted a
subordinate status of women in society and in marriage. The ambiguity around
such judgement was pervasive. In the next big case of V Revathy versus the
Union of India in 1988, the court again stated that not persecuting women for
adultery amounts to ‘social good’ as it gives the couple the opportunity to
mend their relationship and continue their marriage. It again upheld the
sanctity of the institution of marriage.
The
five bench judge overturned the earlier judgments and declared the law
unconstitutional. In their separate statements the judges made very important
observations. Justice Misra and Khanwilkar’s judgement read that the section
was against the dignity of women and arbitrary. Man cannot be treated as the
master of his wife. It violates article 14 and 21. Justice Nariman in a
separate judgment held that such an archaic law holds no rationale in today’s
time. It also critiques the ancient notion of looking at woman as a passive
victim of sexual engagement.
Justice
Chandrachud in a separate judgement stated that while the woman’s infidelity is
a crime and the husband can go to court, the same right has not been given to
the wives. In a marriage, fidelity cannot be extracted only from woman. Also
the very language of the section assumes that the problem is the lack of
consent of the husband, as if sexual intercourse with the wife and with the
husband’s consent won’t be adultery. This equates the status of women to
chattel and renders the section inhuman. He further observed that even after
marriage people retain autonomy and one cannot claim to control the sexuality
of the other.
Justice
Indu Malhotra stated that adultery cannot be considered a crime as it is
consensual engagement between two adults and do not jeopardize the security of
the state. The section is also absurd because it tends to institutionalise
discrimination. The court however retained the fact that adultery will continue
to be a ground of divorce. Further if an act of adultery leads to the aggrieved
spouse to suicide, the adulterous partner could be prosecuted for abetment of
suicide under Section 306 of the IPC.
Hence
it is important to reiterate that while adultery will not be a criminal
offence, the judgement in no way gave licence or promoted and encouraged
adultery. It in fact did away with an archaic law which stripped women of the
minimum agency and reduced her to someone else’s property. There have been some
outrageous claims about how families will break down and social fabric will be
weakened because adultery is no more a crime. The judgement mentioned that
there is no data to back such claims. Further the judgement makes some
excellent observations – that a relationship outside the marriage may also be
the result of an unhappy marriage, that people have the right to end
relationships if they are not happy and problems within marriage with regard to
fidelity should be solved amongst the partners.
Gone
are the days when women married solely for economic security and men married
solely for an unpaid housekeeper. Marriages these days are much more democratic
partnerships based on equality. In case of infidelity the partners should
decide whether they should continue the marriage or end it. But persecuting
someone in the name of adultery for snaring the husband’s property is not
acceptable to today’s woman.
Some
activists including the Chairperson of Delhi Commission for Women, Swati
Maliwal stated that these may lead to a large number of cases of abandonment
without formally ending marriages. While these are genuine concerns and need to
be looked into, it can be done without retaining a century old archaic law
which is a manifestation of a patriarchal society.
This
judgement of the Supreme Court should be seen along with some of the other judgements
like decriminalising Article 377, allowing entry to women of all ages in
Sabarimala temple and also the earlier judgement banning instant triple talaq.
Society, religious institutions have retained misogynist traditions for ages.
While the laws will prepare a ground for demanding equal rights and dignity for
women, the rot runs much deep. Gender discrimination can be countered only by
countering its root – a patriarchal mindset which promotes itself through both
men and women, which gets passed onto newer generations through socialisation
and this starts early at home.
Laws
must be seen through the prism of changing social relations. Majoritarian
morality cannot be the basis of law. The institution of marriage also needs to
be seen from the perspective of women. In the name of maintaining the sanctity
of marriage, marital rape is not even acknowledged in India. While the
scrapping of Section 497 is no doubt a milestone in the struggle for gender
justice and equity, it is important to ensure that the onus is not only on the
judiciary. It is high time that the larger society comes ahead to push forth
for a gender just society where women are not discriminated against and the
myriad aspects of their lives are not regulated by someone else.
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