The Supreme Court of India has finally put to rest one of the relics of Victorian morality. The provision under Section 497 of the Indian Penal Code, 1860 that criminalised adultery has been struck down to be unconstitutional in the case of Joseph Shine vs Union of India.
By now, the internet is flooded with quips on the decriminalisation of adultery provision, while at the same time, there is a tremendous amount of misinformation, with people suspecting degradation of cultural values and possible adverse effect on the institution of marriage. Before discussing the real reasons why such a provision, at least in its current form, was highly problematic, it would be apposite to refer to the bare text of the provision:
“Section 497 IPC- 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.”
The provision posits that (a) there is sexual intercourse with the wife of another man, (b) with the knowledge that the woman is married, (c) without that wife’s husband’s consent, and (d) the woman shall not be treated as an abettor.
Clearly, each limb raises its own constitutional issues. While the provision pertains to intercourse with only a married woman and not married man, the requirement of the husband’s consent to escape legal consequences as well as the immunity to the wife from prosecution are all issues that raised the red flag and left the provision susceptible to be struck down. The provision was based upon the old notion wherein the wife was viewed as a “chattel” or “property” of the husband, not capable of making her own informed decisions. In fact, by giving only the husband the locus to file the complaint, the provision unfairly excludes a woman whose own husband is involved in an adulterous relationship from initiating any complaint against her own husband. Clearly, a provision that is based upon stereotyping the roles of one gender, which in the present case means that only men have active sexual autonomy, can never stand any test of equality.
In other words, the immunity to the woman from prosecution was not a privilege but was rather based upon an understanding that women do not have autonomy in their sexual agency, hence cannot be punished.
It is at this juncture that the issues of condoning deviant conduct are raised. It is alleged that such decisions would end up ringing the death knell of the institution of marriage. While such fears are not completely hogwash, they are misplaced since the purpose of the provision was never really to protect the institution of marriage.
This particular issue is addressed in certain terms in the opinion of Justice Nariman, who stated:
“24. …the ostensible object of Section 497, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not in fact the object of Section 497 at all… also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.”
Thus, the argument that the decision of the court would adversely affect the institution of family and marriage is certainly misconceived.
It is now argued that the decision of the court has closed the doors for any possible attempt to reintroduce this provision on the criminal statute books. Prominent scholars like Gautam Bhatia place reliance upon one of the opinions in the decision rendered by Justice Chandrachud which states:
“Constitutional protections and freedoms permeate every aspect of a citizen’s life- the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.”
It is no doubt true that constitutional rights have for far too long been held captive at the threshold of saving institutions, be it family, or government institution. In fact, marital privacy arguments are used to defend marital rape. But the court, in my opinion, seems to have overlooked two factors, namely, one what the institution of marriage connotes as well as different objects of criminal justice system, and second, the lack of access, especially for women who have no independent source of financial or family support, to contest a divorce proceedings.
While in the former, it is crucial to understand that marriages have been defined as a union of two people with exclusive commitments and the definition is seemingly standard across societies and time. The moment one spouse cheats on the other person, there is one definite aggrieved party. Criminal law has objects ranging from propelling deterrence to vindication through punitive measures, and criminalising adultery falls within both these categories. As regards the latter point, the ratio of women in India who enjoy autonomy is still heavily skewed and the immensely strict patriarchal family structure hinders easy legal access to civil proceedings.
The decision of the Supreme Court is a cause of joy on account of the evolving constitutional jurisprudence on various issues pertaining to civil rights and liberties and one can certainly hope to see the same permeate into other pressing issues like restitution of conjugal rights as well. However, there is still a need for legislative intervention to refurbish the law by taking into account the interests of all stakeholders, along with the socio- economic realities of our country.
The author is an advocate at the Punjab and Haryana High Court
Updated Date: Sep 28, 2018 18:12 PM