Introduction
Recently the offence of Adultery mentioned under section 497 of The Indian Penal Code has been decriminalized by the Hon’ble SC in the case of Joseph Shine v. Union of India 2017, striking down the previous judgments in the case of Sowmithri Vishnu v. Union of India 1985 and Yusuf Abdul Aziz v. State of Bombay 1951.The Five Judge bench of the court struck down Section 497 IPC as unconstitutional. On the grounds that it violated Articles 14, 15, and 21 of the Constitution. Additionally, the court struck down Section 198(2) CrPC only to the extent that it applies to the offense of adultery. This landmark judgment became a significant topic of debate among citizens. It garnered attention due to its association with various religious and social concerns. It was equally appreciated and criticized by the people.
In favor of the judgment
Section 497 of IPC is evidently discriminatory based on the sex of the spouse. This clear bias violates the fundamental right, namely, the Right to Equality under Article 14 of the Constitution. It is limited to the extramarital affairs of a married woman. This section imposes punishment exclusively on men engaging in adultery outside wedlock, even in cases of mutual and consensual activity. Notably, the section omits any punishment for women, even as abettors, treating married women differently from their male counterparts. Given that sexual intercourse involves at least two individuals. There is no legitimate reason to exempt or grant immunity to women from the culpability or punishment of adultery.
The intent behind the insertion of Art. 15(3) is to uplift and strengthen the social status of a particular class in society for substantive equality. While it delivers favorable outcomes such as maternity benefits and women’s quotas. However, it cannot be utilized to claim exemption from prosecution for an offense. Further, Section 497 spreads gender and sexual stereotypes, which ultimately constitute a form of discrimination based on the sex of the spouse.
Further, a nine-judge Constitutional bench in the case of K M Puttaswamy v. Union of India, stated: “sexual privacy is an integral part of the right to privacy under Article 21.” Privacy includes at least a right to make one’s own decisions about his or her intimate matters. One’s right to sexual freedom necessarily includes the right to choose a sexual partner, even when legally married to another person.. Penalizing the adulterous relationship infringes on the right to choose a sexual partner or make one’s sexual preferences. Thus, no such provision can deprive any person of their freedom to decide their sexual partner.
Section 198(2) of the Criminal Procedure Code (CrPC) grants the husband the right to prosecute the third person with whom adultery has been committed but denies the woman her right to prosecute her husband for the offense of adultery. Moreover, law cannot penalize all immoral activities. Various practices, perceived as highly immoral and existing socially, are still prevalent in our society. Social practices like inter-caste marriage or contraception may be termed as immoral by some of the societies but the state cannot prohibit these practices by law. The Delhi HC observed in the case of Naz Foundation v. Government of NCT of Delhi and stated that:
“If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality.”
Even though many religions condemn and rigorously sanction the commission of adultery, it is not an integral part of any religion, and the decriminalization of adultery will not affect any kind of religious practice or faith. This sec.497 IPC treats women as chattel or the property of their husbands. This law grants husbands a dominant position compared to wives. The women stand as the ‘property of the husband’ since she has no right to sue either their adulterous husband or his paramour u/s. 497 IPC.
Apart from this, sec. 497 of the Indian Penal Code deliberately lacks a sense of collective public good because it requires the offense to be committed without the consent or connivance of the husband. There will be no offense if the Husband gives consent to this relationship of his Wife with another man outside the wedlock. If the commission of offense depends upon the consent of any person, then there is no “collective good” in Sec. 497 IPC to hold that Adultery is an offense.
Against the judgment
The decriminalization of such a sinful act as Adultery is ultimately affecting the sanctity of marriage, society, religion, and other marriage-related institutions. This judgment of striking down Sec. 497 IPC is destructing the institution of marriage and encouraging the morale of those engaged in such offense and is going against the customs and traditions of every religion, such as in Manu smriti provided for punishment for those addicted to intercourse with other men’s wives by the punishment which causes terror, followed by banishment, in Christianity find adultery an immoral and a sin for both men and women. Even Islamic law does not support adultery.
Therefore, quashing adultery as an offense is a negative derivative of the customs and practices of every religion. The Hon’ble Bench has led to an increase in the rate of Adultery cases and guards the women. The decision will harm the religious and personal rights of the society at large.
The State can fix Section 497’s anomalies and make it gender-neutral through the authority granted by the Indian Constitution, but it would be incorrect to deem Section 497 of the IPC read with Section 198 (2) of the Criminal Procedure Code completely invalid. Art. 15 (3) allows the State to make “special provisions” for women and children. This special power allows the state to make laws that are completely in favor of women not against them. But in the present matter, given how badly women’s standing has deteriorated even today, Lord Macaulay’s basis of discrimination while crafting Section 497 of the IPC was justified and reasonable.
Decriminalizing the practice of Adultery has given the freedom to the parties of the marriage to indulge in sexual activities outside their wedlock, which would harm the stability of one’s marital relationship. The constitutional bench considered the violation of the Right to Reputation of the parties of marriage enshrined under Article 21 of the Constitution of India, but it did not discuss the rights of the child born out of such an adulterous relationship. Society may not recognize a child born out of an adulterous relationship due to the act being viewed as a social, moral, and legal wrong. This situation could ultimately lead to the violation of their fundamental right to live with dignity, as entrusted by the Constitution of India.
In the matter of Gaurav Jain v. Union of India has categorically stated that “The children have all the rights and opportunities, dignity and care, protection, and rehabilitation by the society with both hands open to bring them into the mainstream of social life without pre-stigma affixed on them for no fault of his/her.
The primary intention behind criminalizing adultery is to punish the adulterer. And then deter them from committing such a crime in the future. If turned into merely a civil wrong, making adultery a ground to seek divorce only. It could potentially provide a free license to prospective offenders to breach the sanctity of marriage without any fear. This contention aligns with the perspective expressed in Smt. Sowmithri Vishnu v. Union of India & Anr. Sexual freedom outside the wedlock becomes restricted as a result of the obligations arising out of the ties of marriage. In every religion, marriage is not simply a private matter rather it is a social institution. If this judgment ultimately permits sexual relations outside the bond of marriage, it would inevitably undermine the institution of marriage. It was deemed essential to maintain the sanctity and obligations of marriage and family by criminalizing adultery.
Conclusion
Section 497 has an inherent anomaly of gender biases, which has become significant in this progressive society. However, we shall not decriminalize the practice of adultery. Instead of striking down the entire section, the Hon’ble Court could have addressed the anomalies by making it gender-neutral. The court could have suggested to the Government of India to reformulate the section accordingly. Earlier the govt. has already highlighted the issues integrated in this section of IPC. The Hon’ble Court held that the provision is currently facing criticism from certain quarters for displaying a significant gender bias. Observation reveals that it positions the status of a married woman almost ‘equivalent to a property’ of her husband.
