Adultery case: How Supreme Court underlined women’s autonomy as facet of human dignity
- The “beauty” of the Constitution is that it includes “I, you and me”, Chief Justice of India DipakMisra observed in a landmark judgment that decriminalised adultery.
- In a unanimous verdict through four concurring opinions on a five-judge Bench — CJI Misra and Justice A M Khanwilkar; Justice R F Nariman; Justice D Y Chandrachud; Justice InduMalhotra — the Supreme Court struck down the archaic Section 497 of the Indian Penal Code (IPC) due to its “manifest arbitrariness” in punishing only men for adultery and for treating a woman as her husband’s property.
- In his judgment, the CJI (D.MISHRA) declared that the husband is neither master of his wife, nor does he have legal sovereignty over her.
- He observed that “any system treating a woman with indignity… invites the wrath of the Constitution”.
- Justice Chandrachudoverruled the judgment of his father. In 1985, former CJI Y V Chandrachud had upheld Section 497 (Sowmithri Vishnu vs Union Of India &Anr); Justice D Y Chandrachud called the provision a relic of Victorian morality and observed that it “proceeds on the notion that the woman is but a chattel; the property of her husband”.
- Justice Chandrachudemphasised the ability to make choices as a fundamental facet of human liberty and dignity, and observed: “Autonomy in matters of sexuality is intrinsic to a dignified human existence…
- Section 497 denudes the woman of the ability to make these fundamental choices.”
- Justice Nariman termed Section 497 violative of Article 14 (equality) and Article 15 as it discriminated on grounds of sex and punishes just men.
- Referring to “ancient notions” of the man being the seducer and the woman being the victim, he said this is is no longer the case today.
- Justice Malhotraobserved that Section 497 institutionialised discrimination and was “replete with anomalies and incongruities”, such as an adulterous relationship not constituting an offence if a married woman had her husband’s consent.
‘Theft’ & ‘adultery’
- The court noted striking similarities between the offences of ‘theft’ and ‘adultery’ under the IPC. Under Section 497, a wife could not prosecute her husband or his lover for violating the so-called sanctity of the matrimonial home, as the husband was not her exclusive property but a husband.
- Under Section 198(2) of Code of Criminal Procedure, 1973 — also struck down — only a husband could prosecute the man with whom his wife had a sexual relationship.
- Moreover, if the husband had an affair with an unmarried woman, divorcee or widow, no offence of adultery is made out against anybody.