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.