TMI Blog2018 (9) TMI 1792X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 497. - Writ Petition (Criminal) No. 194 Of 2017 - - - Dated:- 27-9-2018 - Dipak Misra, Indu Malhotra, Dr Dhananjaya Y Chandrachud, JJ. JUDGMENT Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.) The beauty of the Indian Constitution is that it includes I you and we . Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation and the analysis has to be different, more so, where the emerging concept recognises a particular right to be planted in the compartment of a fundamental right, such as Articles 14 and 21 of the Constitution. In such a backdrop, when the constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the provision in the context of developed and progressive interpretation. A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice. That is how the matter has been placed before us. 6. At this stage, one aspect needs to be noted. At the time of initial hearing before the three-Judge Bench, the decision in Yusuf Abdul Aziz (supra) was cited and the cited Law Report reflected that the judgment was delivered by four learned Judges and later on, it was noticed, as is reflectible from the Supreme Court Reports, that the decision was rendered by a Constitution Bench comprising of five Judges of this Court. 7. The said factual discovery will not detain us any further. In Yusuf Abdul Aziz (supra), the Court was dealing with the controversy that had travelled to this Court while dealing with a different fact situation. In the said case, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitution of India. In the said case, the appellant was being prosecuted for adultery under Section 497 IPC. As soon as the complaint was filed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra Community and another v. State of Maharashtra and another(2005) 2 SCC 673) while making a reference to a larger Bench. The said order reads thus:- 12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms: (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 10. Section 198 of CrPC provides for prosecution for offences against marriage. Section 198 is reproduced below:- 198. Prosecution for offences against marriage.-(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that- (a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own wife, the wife being under 3 [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence. 11. On a perusal of the aforesaid provision, it is clear that the husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The rest of the proviso carves out an exception as to who is entitled to file a complaint when the husband is absent. It may be noted that the offence is non-cognizable. 12. The three-Judge Bench, while referring the matter, had briefly dwelled upon the impact of the provision. To appreciate the constitutional validity, first, we shall deal with the earlier pronouncements and the principles enunciated therein and how we can have a different perspective of such provisions. We have already referred to what has been stated in Yusuf Abdul Aziz (supra). 13. In Sowmithri Vishnu (supra), a petition preferred under Article 32 of the Constitution challenged the validity of Section 497 IPC. We do not intend to advert to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er whether Section 497 should be amended appropriately so as to take note of the transformation which the society has undergone . Proceeding further, the three-Judge Bench held that the offence of adultery as defined in that Section can only be committed by a man, not by a woman. Indeed, the Section expressly provides that the wife shall not be punishable even as an abettor. No grievance can then be made that the Section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, the same point is reverted to; who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute. 15. The Court further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the wife cannot be lawfully disabled from prosecuting her disloyal husband .. It placed heavy reliance on the three-Judge Bench in Sowmithri Vishnu (supra) and proceeded to state that the community punishes the outsider who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring man alone can be punished and not the erring woman. It further went on to say that it does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished, a rider has been added that if the outsider is a woman, she is not punished. There is, thus, reverse discrimination in favour of the woman rather than against her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus, there is no discrimination against the woman insofar as she is not permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution 346 Bench decisions cannot possibly be said to be good law. 61. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India. 62. Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .....means sound discretion guided by law. It must be governed by rule, not by humour : it must not be arbitrary, vague, and fanciful...... . This was in the context of service rules being seniority rules, which applied to the Income Tax Department, being held to be violative of Article 14 of the Constitution of India. 19. Thereafter, our learned brother referred to the authorities in State of Mysore v. S.R. Jayaram(1968) 1 SCR 349), Indira Nehru Gandhi v. Raj Narain(1975) Supp SCC 1), E.P. Royappa v. State of Tamil Nadu(1974) 4 SCC 3), Maneka Gandhi v. Union of India(1978) 1 SCC 248), A.L. Kalra v. Project and Equipment Corporation of India Ltd. (1984) 3 SCC 316), Ajay Hasia v. Khalid Mujib Sehravardi(1981) 1 SCC 722), K.R. Lakshmanan v. State of T.N. (1996) 2 SCC 226) and two other Constitution Bench judgments in Mithu v. State of Punjab(1983) 2 SCC 277) and Sunil Batra v. Delhi Administration(1978) 4 SCC 494) and, eventually, came to hold thus:- It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 198 CrPC deals with a person aggrieved . Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent. 27. In State of Madhya Pradesh v. Madanlal(2015) 7 SCC 681), the Court held:- Dignity of a woman is a part of her nonperishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. 28. In Pawan Kumar v. State of Himachal Pradesh(2017) 7 SCC 780), the Court, dealing with the concept of equality and dignity of a woman, observed:- 47 in a civilized society eve-teasing is causing harassment to women in educational institutions, pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority. And again:- Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger - an outsider. That is the truth in essentiality. 32. In Voluntary Health Association of Punjab v. Union of India(2013) 4 SCC 1), one of us (Dipak Misra, J.), in his concurring opinion, stated that women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership. The issue related to female foeticide and it was stated thus:- 21. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it. Henrik Ibsen emphasised on the individualism of woman. John Milton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had stated that Indian women have suffered and are suffering discrimination in silence. 28. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination. (SCC p. 148, para 28) 24. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility: Dowry is an intractable disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death. 25. Long back, Charles Fourier had stated: The extension of women s rights is the basic principle of all social progress. 26. Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court in Nikku Ram case4 had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows: Yatra tastu na pujyante sarvastatraphalah kriyah A free translation of the aforesaid is reproduced below: All the actions become unproductive in a place, where they are not treated with proper respect and dignity. 27. Another wise man of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India and others(2018) 7 SCC 192), the lis was in a different context. The Court reproduced a passage from Joseph J. Ellis which is also relevant for the present purpose. It reads:- We don t live in a world in which there exists a single definition of honour anymore, and it s a fool that hangs onto the traditional standards and hopes that the world will come around him. 35. In the said case, a contention was advanced that the existence of a woman is entirely dependent on the male view of the reputation of the family, the community and the milieu. The Court, in that context, observed:- 5. The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self-sacrificing, persons moving in physical frame having no individual autonomy, desire and identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive honour. 36. We have referred to the aforesaid as we are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband s monarchy over the wife. That apart, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (A Registered Society) v. Union of India and another(2018) 5 SCC 1), one of us has stated:- ... Human dignity is beyond definition. It may at times defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism. But what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling, and, as stated earlier, it deserves respect even when the person is dead and described as a body ..... And again:- The concept and value of dignity requires further elaboration since we are treating it as an inextricable facet of right to life that respects all human rights that a person enjoys. Life is basically self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena. Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the message, Death plucks my ear and says, Live- I am coming . That is the significance of living. But whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t another way the relationship between 'self', 'others', and 'society'. In this formulation the word 'respect' is the keyword: dignity is respect for an individual person based on the principle of freedom and capacity to make choices and a good or just social order is one which respects dignity via assuring 'contexts' and 'conditions' as the 'source of free and informed choice'. Respect for dignity thus conceived is empowering overall and not just because it, even if importantly, sets constraints state, law, and regulations. 41. From the aforesaid analysis, it is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll those acts and omissions which are not. Ordinarily a crime is a wrong which affects the security or wellbeing of the public generally so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to the general moral sense of the community. It is, however, possible to instance many crimes which exhibit neither of the foregoing characteristics. An act may be made criminal by Parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question. 44. In Kenny‟s Outlines of Criminal Law, 19th Edn., 1966 by J.W. Cecil Turner, it has been stated that:- There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore although it is true to say of crime that is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... history. Civilizations have nourished, reached their peak and passed away. In the year 1625, Carew, C.J., while delivering the opinion of the House of Lords in Re the Earldom of Oxford in a dispute relating to the descent of that Earldom, said: ... and yet time hath his revolution, there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene.... The cycle of change and experiment, rise and fall, growth and decay, and of progress and retrogression recurs endlessly in the history of man and the history of civilization. T.S. Eliot in the First Chorus from The Rock said: O perpetual revolution of configured stars, O perpetual recurrence of determined seasons, O world of spring and autumn, birth and dying; The endless cycle of idea and action, Endless invention, endless experiment. 26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences. We are absolutely conscious that the Parliament has the law making power. We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. Let it be clearly stated, by no stretch of imagination, one can say, that Section 498-A or any other provision, as mentioned hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498- A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted. [Emphasis added] 52. The purpose of referring to the aforesaid authorities is to highlight how adultery has not been granted separate exclusive space in the context of Sections 306 and 498-A IPC. 53. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite. 54. We may also usefully note here that adultery as a crime is no more prevalent in People s Republic of China, Japan, Australia, Brazil and many western European countries. The diversity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a crime would be unwarranted in law. 56. As we have held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path. 57. In view of the foregoing analysis, the decisions in Sowmithri Vishnu (supra) and V. Revathi (supra) stand overruled and any other judgment following precedents also stands overruled. 58. Consequently, the writ petition is allowed to the extent indicated hereinbefore. JUDGMENT R.F. Nariman, J. (Concurring) 1. What is before us in this writ petition is the constitutional validity of an archaic provision of the Indian Penal Code ( IPC ), namely, Section 497, which makes adultery a crime. Section 497 appears in Chapter XX of the IPC, which deals with offences relating to marriage. Section 497 reads as follows:- 497. Adultery.-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after Emperor Augustus daughter, Julia, punished Julia for adultery with banishment. Consequently, in the case of adulterers generally, both guilty parties were sent to be punished on different islands, and part of their property was confiscated. 2. In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment Thou shalt not commit adultery set out in the book of Exodus in the Old Testament. Exodus 20:14 (King James Version). Equally, since the wages of sin is death, the book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress. Leviticus 20:10 (King James Version). 3. In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Paul s letter to the Corinthians. 1 Corinthians 6:9-10 (King James Version). Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. Matthew 5:27-28 (King James Version). However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, a sin, as well as a wrong against the husband. Post 1066, the Normans who took over, viewed adultery not as a crime against the State, but rather as an ecclesiastical offence dealt with by the Church. The common law of England prescribed an action in tort for loss of consortium based on the property interest a husband had in his wife. Thus, the action for conversation, which is compensation or damages, usually represented a first step in obtaining divorce in medieval England. In fact, adultery was the only ground for divorce in seventeenth-century England, which had to be granted only by Parliament. Interestingly enough, it was only after King Charles I was beheaded in 1649, that adultery became a capital offence in Cromwell s Puritanical England in the year 1650, which was nullified as soon as King Charles II came back in what was known as the restoration of the monarchy . It will be seen therefore, that in England, except for an eleven-year period when England was ruled by the Puritans, adultery was never considered to be a criminal offence. Adultery was only a tort for which damages were payable to the husband, given his proprietary interest in his wife. 12 This tor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the husband s losing his wife s society and services or not. All three causes of action were based on the recognition accorded by the common law to the husband s propriety interest in the person of his wife, her services and earnings, and in the property which would have been hers had she been feme sole. [1966] 3 All E.R. 601, 607. 7. In England, Section LIX of the Divorce and Matrimonial Causes Act, 1857 abolished the common law action for criminal conversation while retaining, by Section XXXIII of the same Act, the power to award the husband damages for adultery committed by the wife. This position continued right till 1923, when the Matrimonial Causes Act, 1923 made adultery a ground for divorce available to both spouses instead of only the husband. The right of a husband to claim damages for adultery was abolished very recently by the Law Reforms (Miscellaneous Provisions) Act, 1970. Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970. 8. In the United States, however, Puritans who went to make a living in the American colonies, carried with them Cromwell s criminal law, thereby making adultery a capital offence. Strangely enough, this still continues in some of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished it seems to us that no advantage is to be expected from providing a punishment for adultery. The population seems to be divided into two classes- those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honor are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances we think it best to treat adultery merely as a civil injury. xxx xxx xxx These arguments have not satisfied us that adultery ought to be made punishable by law. We cannot admit that a Penal code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry be made an offence. The reasons for so doing are set out as follows: 353. Having given mature consideration to the subject, we have, after some hesitation, come to the conclusion that it is not advisable to exclude this offence from the Code. We think the reasons for continuing to treat it as a subject for the cognizance of the criminal courts preponderate. We conceive that Colonel Sleeman is probably right in regarding the difficulty of proving the offence according to the requirement of the Mohammedan law of evidence, which demands an amount of positive proof that is scarcely ever to be had in such a case, as having some effect in deterring the Natives from prosecuting adulterers in our courts, although the Regulations allow of a conviction upon strong presumption arising from circumstantial evidence. This difficulty, if it has had the effect supposed, will be removed, should the Code be adopted. Colonel Sleeman s representation of the actual consequences of the present system, which, while it recognizes the offence, renders it, in the opinion of the Natives, almost impossible to bring an offender to justice, it will be observed, coincides with and confirms practically Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Code, the maximum term of imprisonment is two years, with fine in addition, which may amount to 2,000 francs. 358. If the offence of adultery is admitted into the Penal Code, there should be a provision in the Code of Procedure to restrict the right of prosecuting to the injured husband, agreeably to Section 2, Act II of 1845. 19 (emphasis supplied) These are some of the reasons that led to the enactment of Section 497, IPC. 11. At this stage, it is important to note that by Section 199 of the Code of Criminal Procedure, 1898, it was only the husband who was to be deemed to be aggrieved by an offence punishable under Section 497, IPC. Thus, Section 199 stated: 199. Prosecution for adultery or enticing a married woman.- No Court shall take cognizance of an offence under section 497 or section 498 of the Indian Penal Code (XLV of 1860), except upon a complaint made by the husband of the woman, or, in his absence, by some person who had care of such woman on his behalf at the time when such offence was committed. 12. Even when this Code was replaced by the Code of Criminal Procedure ( CrPC ), 1973, Section 198 of the CrPC, 1973 continued the same provision with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard. (4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband. (5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence. (6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the Division Bench of the Bombay High Court in Dattatraya Motiram More v. State of Bombay, AIR 1953 Bom 311, in which the Division Bench turned down a submission that Article 15(3) is confined to laws made after the Constitution of India comes into force and would also apply to existing law thus: 8. An argument was advanced by Mr. Patel that Art. 15(3) only applies to future legislation and that as far as all laws in force before the commencement of the Constitution were concerned, those laws can only be tested by Art. 15(1) and not by Art. 15(1) read with Art. 15(3). Mr. Patel contends that Art. 15(3) permits the State in future to make a special provision for women and children, but to the extent the laws in force are concerned Art. 15(1) applies, and if the laws in force are inconsistent with Art. 15(1), those laws must be held to be void. Turning to Art. 13(1), it provides: All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Therefore, before a law in force can be declared to be void it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting law means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation; 15. Article 15(3) refers to the State making laws which therefore, obviously cannot include existing law. Article 15(3) is in this respect similar to Article 16(4), which reads as follows: 16. Equality of opportunity in matters of public employment.- xxx xxx xxx (4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. The vital difference in language between Articles 15(3) and 16(4) on the one hand, and Article 19(2)-(6) on the other, must thus be given effect. 16. Coming back to Yusuf Abdul Aziz (supra), the difference in language between Article 15(3) and Article 19(2)-(6) was not noticed. The limited ratio of this judgment merely refers to the last sentence in Section 497 which it upholds. Its ratio does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asmuch as a husband who has sexual relations with an unmarried woman is not within the net of the law, was repelled stating that an unfaithful husband may invite a civil action by the wife for separation, and that the Legislature is entitled to deal with the evil where it is felt and seen most. A challenge on the ground of Article 21 was also repelled, stating that the fact that a provision for hearing the wife is not contained in Section 497 cannot render that Section unconstitutional. This Court then referred to the judgment in Yusuf Abdul Aziz (supra) and stated that since it was a 1954 decision, and 30 years had passed since then, this Court was examining the position afresh. The Court ended with the sermon, stability of marriages is not an ideal to be scorned. 18. In V. Revathi v. Union of India and Ors., (1988) 2 SCC 72, this Court, after referring to Sowmithri Vishnu (supra), repelled a similar challenge to Section 198 of the CrPC, 1973. After referring to Sowmithri Vishnu (supra), since Section 497, IPC and Section 198, CrPC go hand in hand and constitute a legislative packet to deal with the offence of adultery committed by an outsider, the challenge to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishment meted out to a third party is unlikely to change that. (b) Grave doubts are expressed by many about the deterrent effect of the action. In most other countries it was concluded that the action (no longer) has any deterrent effect and I have no reason to think that the position in our society is all that different. Perhaps one reason is that adultery occurs in different circumstances. Every so often it happens without any premeditation, when deterrence hardly plays a role. At the other end of the scale, the adultery is sometimes carefully planned and the participants are confident that it will not be discovered. Moreover, romantic involvement between one of the spouses and a third party can be as devastating to the marital relationship as (or even more so than) sexual intercourse. (c) If deterrence is the main purpose, one would have thought that this could better be achieved by retaining the imposition of criminal sanctions or by the grant of an interdict in favour of the innocent spouse against both the guilty spouse and the third party to prevent future acts of adultery. But, as we know, the crime of adultery had become abrogated through disuse exactly 100 years ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not another offence, namely, rape. 23. The background in which this provision was enacted now needs to be stated. In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955. It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the Hindu Code , so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for divorce in Hindu Law. Further, the real heart of this archaic law discloses itself when consent or connivance of the married woman s husband is obtained the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence. 25. The aforesaid provision is also discriminatory and therefore, violative of Article 14 and Article 15(1). As has been held by us hereinabove, in treating a woman as chattel for the purposes of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well. Section 198, CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence. Consequently, Section 198 has also to be held constitutionally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnity was read into Article 21 by the judgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155], at paras 192, 197-B, 234 and 241 and Prem Shankar Shukla v. Delhi Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815], at paras 21 and 22. It is too late in the day to canvas that a fundamental right must be traceable to express language in Part III of the Constitution. As will be pointed out later in this judgment, a Constitution has to be read in such a way that words deliver up principles that are to be followed and if this is kept in mind, it is clear that the concept of privacy is contained not merely in personal liberty, but also in the dignity of the individual. xxx xxx xxx 525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual. [In 1834, Jacques-Charles DuPont de l'Eure associated the three terms liberty, equality and fraternity together in the Revue R publicaine, which he edited, as follows: Any man aspires to liberty, to equality, but he cannot achieve it without the assistance of other men, without fraternity. Many of our decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment which landed up in appeal before this Court in Yusuf Abdul Aziz s (supra). Chief Justice Chagla had stated that since the underlying idea of Section 497 is that wives are properties of their husbands, Section 497 should not find a place in any modern Code of law, and is an argument in favour of doing away with Section 497 altogether. The day has long since arrived when the Section does, in fact, need to be done away with altogether, and is being done away with altogether. 28. In Sowmithri Vishnu (supra), this Court upheld Section 497 while repelling three arguments against its continuance, as has been noticed hereinabove. This judgment also must be said to be swept away by the tidal wave of recent judgments expanding the scope of the fundamental rights contained in Articles 14, 15, and 21. Ancient notions of the man being the seducer and the woman being the victim permeate the judgment, which is no longer the case today. The moving times have not left the law behind as we have just seen, and so far as engaging the attention of law makers when reform of penal law is undertaken, we may only hasten to add that even when the CrPC was fully replaced in 1973, Section 198 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slow to adapt to leads shown by the law. The law on adultery cannot be construed in isolation. To fully comprehend its nature and impact, every legislative provision must be understood as a discourse about social structuring. 1 However, the discourse of law is not homogenous. Ibid at page 41 In the context particularly of Section 497, it regards individuals as gendered citizens . Ibid In doing so, the law creates and ascribes gender roles based on existing societal stereotypes. An understanding of law as a discourse would lead to the recognition of the role of law in creating gendered identities . Ibid 3 Over the years, legal reform has had a significant role in altering the position of women in societal orderings. This is seen in matters concerning inheritance and in the protection against domestic violence. However, in some cases, the law operates to perpetuate an unequal world for women. Thus, depending on the manner in which it is used, law can act as an agent of social change as well as social stagnation. Scholar Patricia Williams, who has done considerable work on the critical race theory, is sanguine about the possibility of law engendering progressive social trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eve 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. Section 198(2) of the Code of Criminal Procedure reads thus: (2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf. 6 The decision of the Constitution Bench in Yusuf Abdul Aziz v State of Bombay (1954 SCR 930), arose from a case where the appellant was being prosecuted for adultery under Section 497. On a complaint being filed, he moved the High Court to determine the constitutional question about the validity of the provision, under Article 228. The High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrued the exemption granted to women from criminal sanctions as a special provision for the benefit of women and thus, protected under Article 15(3) of the Constitution. In Union of India v Elphinstone Spinning and Weaving Co. Ltd, (2001) 4 SCC 139) a Constitution Bench of this Court held: 17 When the question arises as to the meaning of a certain provision in a statute it is not only legitimate but proper to read that provision in its context. The context means the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy Ibid. at page 164 It is of particular relevance to examine the mischief that the provision intends to remedy. The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency. Thus, Section 497 was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 497 was irrational and arbitrary . Moreover, it was also urged that while facially, the provision appears to be beneficial to a woman, it is in reality based on a notion of paternalism which stems from the assumption that women, like chattels, are the property of men. 10 The decision in Sowmithri Vishnu dealt with the constitutional challenge by approaching the discourse on the denial of equality in formal, and rather narrow terms. Chandrachud, CJ speaking for the three judge Bench observed that by definition, the offence of adultery can be committed by a man and not by a woman. The court construed the plea of the petitioner as amounting to a suggestion that the definition should be recast in a manner that would make the offence gender neutral. The court responded by observing that this was a matter of legislative policy and that the court could invalidate the provision only if a constitutional violation is established. The logic of the court, to the effect that extending the ambit of a statutory definition is a matter which requires legislative change is unexceptionable. The power to fashion an amendment to the law lies with the legislature. But this only leads to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty of her husband. That a woman is regarded no more than as a possession of her husband is evidenced in Section 497, in more than one context. The provision stipulates that a man who has sexual intercourse with the wife of another will not be guilty of offence if the husband of the woman were to consent or, (worse still, to connive. In this, it is evident that the legislature attributes no agency to the woman. Whether or not a man with whom she has engaged in sexual intercourse is guilty of an offence depends exclusively on whether or not her husband is a consenting individual. No offence exists if her husband were to consent. Even if her husband were to connive at the act, no offence would be made out. The mirror image of this constitutional infirmity is that the wife of the man who has engaged in the act has no voice or agency under the statute. Again, the law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman. His wife is not regarded by the law as a person whose agency and dignity is affected. The underlying basis of not penalising a sexual act by a married man with a single woman is that she (unlike a married woman) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elationships is punishable by law. Stability of marriages is not an ideal to be scorned. Ibid. at page 144 Sowmithri Vishnu has thus proceeded on the logic that in specifying an offence, it is for the legislature to define what constitutes the offence. Moreover, who can prosecute and who can be prosecuted, are matters which fall within the domain of the law. The inarticulate major premise of the judgment is that prosecution for adultery is an effort to protect the stability of marriages and if the legislature has sought to prosecute only a limited class of adulterous relationships , its choice could not be questioned. Sowmithri Vishnu fails to deal with the substantive aspects of constitutional jurisprudence which have a bearing on the validity of Section 497: the guarantee of equality as a real protection against arbitrariness, the guarantee of life and personal liberty as an essential recognition of dignity, autonomy and privacy and above all gender equality as a cornerstone of a truly equal society. For these reasons, the decision in Sowmithri Vishnu cannot be regarded as a correct exposition of the constitutional position. Sowmithri Vishnu is overruled. 12 The decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... husetts magistracy have not been bold to put in force the extremity of our righteous law against her. The penalty thereof is death. But in their great mercy and tenderness of heart they have doomed Mistress Prynne to stand only a space of three hours on the platform of the pillory, and then and thereafter, for the remainder of her natural life to wear a mark of shame upon her bosom. 19 14 Section 497 of the Indian Penal Code, 1860 makes adultery a punishable offence against 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. It goes on to state that, in such case the wife shall not be punishable as an abettor. The offence applies only to the man committing adultery. A woman committing adultery is not considered to be an abettor to the offence. The power to prosecute for adultery rests only with the husband of the woman. Understanding the gendered nature of Section 497 needs an inquiry into the origins of the provision itself as well as the offence of adultery more broadly. The history of adultery throws light upon disparate attitudes toward male and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-class Roman males. 30 17 Once monogamy came to be accepted as the norm in Britain between the fourth and fifth centuries, adultery came to be recognized as a serious wrong that interfered with a husband s rights over his wife. 31 The imposition of criminal sanctions on adultery was also largely based on ideas and beliefs about sexual morality which acquired the force of law in Christian Europe during the Middle Ages. 32 The development of canon law in the twelfth century enshrined the perception of adultery as a spiritual misdemeanour. In the sixteenth century, following the Reformation, adultery became a crucial issue because Protestants placed new emphasis on marriage as a linchpin of the social and moral order. 33 Several prominent sixteenth century reformers, including Martin Luther and John Calvin, argued that a marriage was irreparably damaged by infidelity, and they advocated divorce in such cases. Ibid. Concerned with the moral corruption prevalent in England since the Reformation, Puritans in the Massachusetts Bay Colony introduced the death penalty for committing adultery. 35 The strict morality of the early English colonists is reflected in the famous 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manslaughter, and not murder. 43 In R v Mawgridge, (1707) Kel. 119) Judge Holt wrote that: [A] man is taken in adultery with another man s wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property. (Emphasis supplied) 20 In his Commentaries on the Laws of England, William Blackstone wrote that under the common law, the very being or legal existence of the woman [was] suspended during the marriage, or at least [was] incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performe[d] everything. 45 In return for support and protection, the wife owed her husband consortium of legal obligations, which included sexual intercourse. 46 Since adultery interfered with the husband's exclusive entitlements, it was considered to be the highest possible invasion of property, similar to theft. (R v. Mawgridge, (1707) Kel. 119) In fact, civil actions for adultery evolved from actions for enticing away a servant from a master and thus depriving the master of the quasi-proprietary interest in his services. 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om providing a punishment for adultery. We think it best to treat adultery merely as a civil injury. Macaulay's Draft Penal Code (1837), Note Q (Emphasis supplied) 22 The Law Commissioners, in their Second Report on the Draft Penal Code, disagreed with Lord Macaulay s view. Placing heavy reliance upon the status of women in India, they concluded that: While we think that the offence of adultery ought not to be omitted from the code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in note Q, regarding the condition of the women, in this country, in deference to it, we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial together , and empower the Court in the event of their conviction to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine. 53 The Law Commissioners decision to insert Section 497 into the IPC was rooted in their concern about the possibility of the natives resorting to illeg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de gender-neutral, by substituting the words of the provision with whosoever has sexual intercourse with the spouse of any other person is guilty of adultery. 57 The Committee supported earlier proposals to not repeal the offence, but to equate liability for the sexes: The object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband). Ibid. Neither the recommendations of the Law Commission nor those of the Malimath Committee have been accepted by the Legislature. Though women are exempted from prosecution under Section 497, the underlying notion upon which the provision rests, which conceives of women as property, is extremely harmful. The power to prosecute lies only with the husband (and not to the wife in cases where her husband commits adultery), and whether the crime itself has been committed depends on whether the husband provides consent for the allegedly adulterous act. 24 Women, therefore, occupy a liminal space in the law: they cannot be prosecuted for committing adultery, nor c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace of the law or in their implementation. Reform towards achieving a more egalitarian society in practice has also been driven by active measures taken by the United Nations and other international human rights organizations, where it has been emphasized that even seemingly genderneutral provisions criminalising adultery cast an unequal burden on women: 63 Given continued discrimination and inequalities faced by women, including inferior roles attributed to them by patriarchal and traditional attitudes, and power imbalances in their relations with men, the mere fact of maintaining adultery as a criminal offence, even when it applies to both women and men, means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality. The abolishing of adultery has been brought about in equal measure by legislatures and courts. When decisions have been handed down by the judiciary across the world, it has led to the creation of a rich body of transnational jurisprudence. This section will focus on a few select comparative decisions emanating from the courts of those countries where the provision crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a typeset role of family members to sexual views driven by liberal thought and individualism. While recognizing that marital infidelity is immoral and unethical, the Court stated that love and sexual life were intimate concerns, and they should not be made subject to criminal law. Commenting on the balance between an individual s sexual autonomy vis- -vis societal morality, the Court remarked: the society is changing into one where the private interest of sexual autonomy is put before the social interest of sexual morality and families from the perspective of dignity and happiness of individuals. 68 Next, the Court analysed the appropriateness and effectiveness of criminal punishment in curbing the offence of adultery. Addressing the question of whether adultery should be regulated, the Court stated that modern criminal law dictated that the State should not seek to interfere in an act that is not socially harmful or deleterious to legal interests, simply because it is repugnant to morality. Moreover, it held that the State had no business in seeking to control an individual s actions which were within the sphere of his or her constitutionally protected rights of priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities have improved with more active social and economic activities, the premise that women are the economically disadvantaged does not apply to all married couples. Finally, the Court concluded its analysis by holding that the interests of enforcing monogamy, protecting marriage and promoting marital fidelity, balanced against the interference of the State in the rights to privacy and sexual autonomy were clearly excessive and therefore failed the test of least restrictiveness. 71 28 In 2007, the Ugandan Constitutional Court in Law Advocacy for Women in Uganda v Attorney General of Uganda 72 , was called upon to rule on the constitutionality of Section 154 of the Penal Code, on, the grounds that it violated various protections granted by the Ugandan Constitution and meted out discriminatory treatment between women and men. The law as it stood allowed a married man to have a sexual relationship with an unmarried woman. Moreover, only a man could be guilty of the offence of adultery when he had sexual intercourse with a married woman. The same provision, however, penalized a married woman who engaged in a sexual relationship with an unmarried or married man outside of the marr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be viewed as a constitutionally protected marital choice. Second, that certain adulterous relationships are protected by the freedom of association and finally, that adultery constitutes an action which is protected by sexual privacy. Ibid, at page 46 A brief study is also undertaken on whether action penalizing adultery constitutes a legitimate interest of the State. The first privacy interest in adultery is the right to marital choice. The U.S. Supreme Court has upheld the values of fundamental liberty , freedom of choice and the right to privacy in marriage. With this jurisprudence, the author argues, it would be strange if a decision to commit adultery is not a treated as a matter of marriage and family life as expressed in Cleveland Board(Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973), an act occurring in marriage , as held in Griswold (Griswold, 381 U.S. 1 (1967) or a matter of marriage and family life as elucidated in Carey. Carey, v. Population Serv. Int l, 431 U.S. 678 Siegel posits that a decision to commit adultery is a decision relating to marriage and family relationships and therefore, falls within the domain of protected private cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs are sometimes prerequisites for genuine love relationships; to forbid the former is, therefore, to inhibit the latter. ' Ibid, at, page 78 Next, Siegel examines the plausible protection of adultery through the lens of the freedom of expression. Since the act of engaging in sexual activity can be interpreted as being expressive, Siegel claims adultery might also implicate First Amendment rights. In support he cites a body of case law (Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984),where courts have held that First Amendment rights are not limited to merely verbal expression but also encompass the right to expressive association . In concluding his section on the right to associate, Siegel warns against the dangers of classifying adultery solely as a sexual activity, as doing so would be akin to protecting a part of the relationship and criminalizing the other. This would be manifestly unjust: It is difficult, both theoretically and practically, to single out the sexual contacts two people may have from the rest of their relationship- to criminalize the one and constitutionally protect as fundamental the other . 90 Lastly, Siegel discusses the conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vacy and autonomy are the best routes to safeguarding liberty and pluralism. This is no less true when the power to choose, as it inevitably will, results in bad choices. It is a confidence in nothing less than the theory underscoring our entire political order: Our system of government requires that we have faith in the ability of the individual to decide wisely, if only he is fully appraised of the merits of the controversy. 96 While acknowledging the interest that the State has in preserving the institution of marriage, Siegel precisely points out the inefficacy of attaching criminal sanctions to adultery in the following words: Even if we accept that a state is trying to foster the interests of specific deceived spouses by its laws criminalizing adultery, it is impossible to believe that a criminal penalty imposed on one of the spouses would somehow benefit a marriage instead of representing the final nail in its coffin. And if deterrence of adultery is the goal, then the state's failure to arrest and prosecute offenders has long since removed any fear of legal sanction. 97 Deborah L Rhode in her book titled Adultery argues that intermittent idiosyncratic i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The woman with whom he is in marriage has no voice of her own, no agency to complain. If the woman who is involved in the sexual act is not married, the law treats it with unconcern. The premise of the law is that if a woman is not the property of a married man, her act would not be deemed to be adulterous , by definition. 31 The essence of the offence is that a man has engaged in an act of sexual intercourse with the wife of another man. But if the man to whom she is married were to consent or even to connive at the sexual relationship, the offence of adultery would not be established. For, in the eyes of law, in such a case it is for the man in the marital relationship to decide whether to agree to his spouse engaging in a sexual act with another. Indeed, even if the two men (the spouse of the woman and the man with whom she engages in a sexual act) were to connive, the offence of adultery would not be made out. 32 Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the institution of marriage , it provides no justification for not recognising the agency of a woman whose spouse is engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is disproportionate, excessive or unreasonable , yet such challenge would fail on the very ground of the law being unreasonable, unnecessary or unwarranted . The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution. Ibid. at pages 91-92 (Emphasis supplied) On the application of the test of manifest arbitrariness to invalidate legislation, the learned Judge held thus: 101 there is no rational distinction between the two types of legislation when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n postulates a notion of marriage which subverts the equality of spouses. Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled to take decisions in accordance with his and her conscience and each must have the ability to pursue the human desire for fulfilment. Section 497 is based on the understanding that marriage submerges the identity of the woman. It is based on a notion of marital subordination. In recognising, accepting and enforcing these notions, Section 497 is inconsistent with the ethos of the Constitution. Section 497 treats a woman as but a possession of her spouse. The essential values on which the Constitution is founded liberty, dignity and equality cannot allow such a view of marriage. Section 497 suffers from manifest arbitrariness. 36 While engrafting the provision into Chapter XX of the Penal Code of offences relating to marriage the legislature has based the offence on an implicit assumption about marriage. The notion which the law propounds and to which it imposes the sanctions of penal law is that the marital tie subor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is violative of Article 14. 37 The procedural law which has been enacted in Section 198 of the Code of Criminal Procedure 1973 re-enforces the stereotypes implicit in Section 497. Cognizance of an offence under Chapter XX of the Penal Code can be taken by a Court only upon a complaint of a person aggrieved. In the case of an offence punishable under Section 497, only the husband of the woman is deemed to be aggrieved by the offence. In any event, once the provisions of Section 497 are held to offend the fundamental rights, the procedure engrafted in Section 198 will cease to have any practical relevance. 38 Section 497 amounts to a denial of substantive equality. The decisions in Sowmithri and Revathi espoused a formal notion of equality, which is contrary to the constitutional vision of a just social order. Justness postulates equality. In consonance with constitutional morality, substantive equality is directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society. 106 To move away from a formalistic notion of equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crimination; (ii) Section 497 is based on the patriarchal conception of the woman as property, entrenches gender stereotypes, and is consequently hit by Article 15. From a joint reading of Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure, the following propositions emerge: i. Sexual relations by a married woman with another man outside her marriage without the consent of her husband is criminalized; ii. In an adulterous relationship , the man is punished for adultery, while the woman is not (even as an abettor); iii. Sexual relations by a married man with an unmarried woman are not criminalized; iv. Section 497 accords primacy to the consent of the husband to determine whether criminality is attached to the man who has consensual sexual relations with the spouse of the former. Consent or willingness of the woman is irrelevant to the offence; v. A man who has sexual relations with the spouse of another man is relieved of the offence only if her spouse has consented or, even connived; and vi. Section 497, IPC, read with Section 198, Cr.PC, gives the man the sole right to lodge a complaint and precludes a woman from initiatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionship outside marriage on a different footing. 42 Section 497 criminalizes the conduct of the man who has sexual intercourse with the wife of another without his consent. It exempts women from criminal liability. Underlying this exemption is the notion that women, being denuded of sexual agency, should be afforded the protection of the law. In criminalizing the accused who engages in the sexual relationship, the law perpetuates a gender stereotype that men, possessing sexual agency are the seducers, and that women, as passive beings devoid of sexual agency, are the seduced. The notion that a woman is submissive , or worse still na ve has no legitimacy in the discourse of a liberal constitution. It is deeply offensive to equality and destructive of the dignity of the woman. On this stereotype, Section 497 criminalizes only the accused man. 43 Pertinent to the present enquiry, is that the provision allows only the husband to initiate a prosecution for adultery. The consent or connivance of the husband precludes prosecution. If a husband consents, his spouse is effectively granted permission to exercise her sexual agency with another individual. This guarantees a degree o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lays an important role in shaping (legal) consciousness. 112 A contextual reading of the law shows that it influences social practices, and makes asymmetries of power seem, if not invisible, natural and benign . 113 Section 497 has a significant social impact on the sexual agency of women. It builds on existing gender stereotypes and bias and further perpetuates them. Cultural stereotypes are more forgiving of a man engaging in sexual relations than a woman. Women then are expected to be chaste before and faithful during marriage. In restricting the sexual agency of women, Section 497 gives legal recognition to socially discriminatory and gender-based norms. Sexual relations for a woman were legally and socially permissible when it was within her marriage. Women who committed adultery or non-marital sex were labeled immoral, shameful, and were criminally condemned. In Anuj Garg v Hotel Association of India, (2008) 3 SCC 1) this Court struck down Section 30 of the Punjab Excise Act, 1914 which prohibited the employment of women in premises where liquor or other intoxicating drugs were consumed by the public. Holding that the law suffered from incurable fixations of stereotyp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emption is the notion that a woman is the victim of being seduced into a sexual relationship with a person who is not her husband. In assuming that the woman has no sexual agency, the exemption seeks to be justified on the ground of being a provision that is beneficial to women and protected under Article 15(3) of the Constitution. This is contrary to the remedy which Article 15(3) sought to embody. In Government of A P v P B Vijayakumar, (1995) 4 SCC 520) a two judge Bench of this Court dealt with a challenge to subrule (2) of Rule 22-A of the Andhra Pradesh State and Subordinate Service Rules, which gave women a preference in the matter of direct recruitment. Speaking for the Court, Justice Sujata V Manohar held thus: 7. The insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and wom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (Charles Jean Marie Letorneau, The Evolution of Marriage (2011) about the central forms of adultery as an offence. The criminalisation of adultery came at a social cost: of disregarding the agency of a woman as a sentient being. In all legislations the married woman is more or less openly considered as the property of the husband and is very often confounded, absolutely confounded, with things possessed. To use her, therefore, without the authority of her owner is theft But adultery is not a common theft. An object, an inert possession, are passive things; their owner may well punish the thief who has taken them, but him only. In adultery, the object of larceny, the wife, is a sentient and thinking being- that is to say, an accomplice in the attempt on her husband s property in her own person; moreover he generally has her in his keeping The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated the lives of women for centuries. Ostensibly, society has two sets of standards of morality for judging sexual behaviour. 121 One set for its female members and another for males. Ibid Society ascribes impossible virtues to a woman and confines her to a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e personal is political . Ibid. Her scholarly work implores us to recognise spaces which may be considered personal such as the bedroom and kitchen. These spaces are immersed in power relations, but with ramifications for the public sphere. Ibid. Control over women s sexuality is the key patriarchal assumption that underlies family and marriage. Ibid. When it shifts to the public as opposed to the private , the misogyny becomes even more pronounced. Ibid. Section 497 embodies this. By the operation of the provision, women s sexuality is sought to be controlled in a number of ways. First, the husband and he alone is enabled to prosecute the man with whom his wife has sexual relations. Even in cases where the relationship is based on the consent of the woman, the law treats it as an offence, denying a woman who has voluntarily entered into a consensual relationship of her sexual agency. Second, such a relationship would be beyond the reach of penal law if her husband consents to it. The second condition is a telling reflection of the patriarchal assumption underlying the criminal provision: that the husband is the owner of the wife s sexual agency. 52 In remedying injustices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsistence and resultantly, the fundamental right of liberty of such an individual is abridged. In Navtej, one of us (Chandrachud J.) held that the recognition of the autonomy of an individual is an acknowledgement of the State s respect for the capacity of the individual to make individual choices: The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State s respect for the capacity of the individual to make independent choices. The right to privacy may be construed to signify that not only are certain acts no longer immoral, but that there also exists an affirmative moral right to do them. To characterise a woman as a passive object, denuded of agency, is a denial of autonomy. The same judgment in Navtej has recognized sexual choices as an essential attribute of autonomy, intimately connected to the self-respect of the individual: In order to understand how sexual choices are an essential attribute of au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes. (Emphasis supplied) 55 Section 497 seeks the preservation of a construct of marriage in which female fidelity is enforced by the letter of the law and by the coercive authority of the state. Such a conception goes against the spirit of the rights-based jurisprudence of this Court, which seeks to protect the dignity of an individual and her intimate personal choices . It cannot be held that these rights cease to exist once the woman enters into a marriage. 56 The identity of the woman must be as an individual in her own right . In that sense, her identity does not get submerged as a result of her marriage. Section 497 lays down the norm that the identity of a married woman is but as the wife of her spouse. Underlyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al sphere are criminalised on the basis of regressive social attitudes: An individual's choice to engage in certain acts within their private sphere has been restricted by criminalising the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual's right to dignity by reducing it to mere letters without any spirit. The Chief Justice observed that the organisation of intimate relations between consenting adults is a matter of complete personal choice and characterised the private protective sphere and realm of individual choice and autonomy as a personal right: It is true that the principle of choice can never be absolute under a liberal Constitution and the law restricts one individual s choice to prevent harm or injury to others. However, the organisation of intimate relations is a matter of complete personal choice especially between consenting adults. It is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. Such progressive proclivity is rooted in the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal liberty by adopting a notion of marriage which subverts true equality. Equality is subverted by lending the sanctions of the penal law to a gender biased approach to the relationship of a man and a woman. The statute confounds paternalism as an instrument for protecting marital stability. It defines the sanctity of marriage in terms of a hierarchical ordering which is skewed against the woman. The law gives unequal voices to partners in a relationship. This judgment has dwelt on the importance of sexual autonomy as a value which is integral to life and personal liberty under Article 21. Individuals in a relationship, whether within or outside marriage, have a legitimate expectation that each will provide to the other the same element of companionship and respect for choices. Respect for sexual autonomy, it must be emphasized is founded on the equality between spouses and partners and the recognition by each of them of the dignity of the other. Control over sexuality attaches to the human element in each individual. Marriage whether it be a sacrament or contract does not result in ceding of the autonomy of one spouse to another. 60 Recognition of sexual autonomy as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state has legitimately intervened in other situations such as by enacting anti dowry legislation or by creating offences dealing with the harassment of women for dowry within a marital relationship. The reason why this constitutes a legitimate recourse to the sovereign authority of the state to criminalize conduct is because the acts which the state proscribes are deleterious to human dignity. In criminalizing certain types of wrongdoing against women, the state intervenes to protect the fundamental rights of every woman to live with dignity. Consequently, it is important to underscore that this judgment does not question the authority and even the duty of the state to protect the fundamental rights of women from being trampled upon in unequal societal structures. Adultery as an offence does not fit that paradigm. In criminalizing certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality. The sexuality of a woman is part of her inviolable core. Neither the state nor the institution of marriage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks to only redress perceived harm caused to the husband. This notion is grounded in stereotypes about permissible actions in a marriage and the passivity of women. Fidelity is only expected of the female spouse. This anachronistic conception of both, a woman who has entered into marriage as well as the institution of marriage itself, is antithetical to constitutional values of equality, dignity and autonomy. In enforcing the fundamental right to equality, this Court has evolved a test of manifest arbitrariness to be employed as a check against state action or legislation which has elements of caprice, irrationality or lacks an adequate determining principle. The principle on which Section 497 rests is the preservation of the sexual exclusivity of a married woman for the benefit of her husband, the owner of her sexuality. Significantly, the criminal provision exempts from sanction if the sexual act was with the consent and connivance of the husband. The patriarchal underpinnings of Section 497 render the provision manifestly arbitrary. 65 The constitutional guarantee of equality rings hollow when eviscerated of its substantive content. To construe Section 497 in a vacuum (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on; 3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution; and 4) Section 497 is unconstitutional. The decisions in Sowmithri Vishnu and Revathi are overruled. JUDGMENT INDU MALHOTRA, J. 1. The present Writ Petition has been filed to challenge the constitutional validity of Section 497 of the Indian Penal Code (hereinafter referred to as I.P.C.) which makes adultery‟ a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. Section 497 reads as under: 497. Adultery - 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. 2. The Petitioner has also challenged Section 198(2) of the Code of Criminal Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquires by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all contracts made between husband and wife, when single, are voided by the intermarriage. (Emphasis supplied) On this basis, a wife did not have an individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract. Apart from anything else, she had no property against which to enforce any order against her for payment under a contract; so it was only a small step for the law to conclude that she did not have the ability to enter into the contract in the first place. If, however, the wife went into a shop and ordered goods, say of food or clothing, which the law regarded as necessary for the household, the law presumed, unless the husband proved to the contrary, that she had entered into the contract as his authorised agent. So the shopkeeper could sue him for the price if the wife had obtained the goods on credit. 9. In the seventeenth century there was a development in the law relating to this so-called agency of necessity. It was an attempt to serve the needs of wives whose husbands had deserted them. The law began to say that, if a deserted wife had not committed adultery, she could buy from the shopkeeper all such goods as were necessary for her and, even if (as was highly likely) the husband had not authorised her to buy them, he was liable to pay the shopkeeper for them. But the shopkeeper had a problem. How was he to know whether the wife at the counter had been deserted an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his own bloodline. 14 5.2. The first draft of the I.P.C. released by the Law Commission of India in 1837 did not include adultery as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence. 15 The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, who were of the opinion that the existing remedy for adultery‟ under Common Law would be insufficient for the poor natives‟, who would have no recourse against the paramour of their wife. 16 5.3. The debate that took place in order to determine whether adultery‟ should be a criminal offence in India was recorded in Note Q‟ of A Penal Code prepared by the Indian Law Commissioners 17 . The existing laws 18 for the punishment of adultery were considered to be altogether inefficacious for preventing the injured husband from taking matters into his own hands. The Law Commissioners considered that by not treating adultery‟ as a criminal offence, it may give sanction to immorality. The Report 19 states: Some who admit that the penal law now existing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quick sensibility to family honour. We apprehend that among the higher classes in this country nothing short of death would be considered as an expiation for such a wrong. In such a state of society we think it far better that the law should inflict no punishment than that it should inflict a punishment which would be regarded as absurdly and immorally lenient. (Emphasis supplied) The Law Commissioners considered the plight of women in this country, which was much worse than that of women in France and England. Note Q‟ (surpa) records this as the reason for not punishing women for the offence of adultery. The relevant extract of Note Q‟ is reproduced herein below: There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest interests of the human race are closely connected with the chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily very different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider sufficient to defray the expenses of a second marriage. They dare not live in adultery, they would be outcasts if they did; they must be married according to the forms of their caste, and it is reasonable that the seducer of the wife should be made to defray these expenses for the injured husband. The rich will, of course, always refuse pecuniary compensation, and for the same reason that they would never prosecute the seducer in a civil court. The poor could never afford so to prosecute in such a court; and, as I have said, the silence of the Penal Code would be a solemn pledge of impunity to the guilty seducer, under the efficient government like ours, that can prevent the husband and father from revenging themselves except upon the females. 20 (Emphasis supplied) This debate along with the recommendation of the Law Commissioners was considered by the Indian Law Commissioners while drafting the Indian Penal Code. 5.4. The relevant extract from the discussion on whether to criminalize adultery was as follows: We have observed that adultery is recognised as an offence by the existing laws of all the Presidencies, and that an Act has been lately passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note Q, regarding the condition of the women of this country, in deference to it we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial together, and empower the Court, in the event of their conviction, to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine. By Mr. Livingstone s Code, the woman forfeits her matrimonial gains , but is not liable to other punishment. We would adopt Colonel Sleeman s suggestion as to the punishment of the male offender, limiting it to imprisonment not exceeding five years, instead of seven years allowed at present, and sanctioning the imposition of a fine payable to the husband as an alternative, or in addition. 21 (Emphasis supplied) 5.5. It was in this backdrop that Section 497 came to be included in the I.P.C. 6. THE QUEST FOR REFORM 6.1. In June 1971, the 42nd Report of the Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious jurisdictions around the world. Adultery has been defined differently across various jurisdictions. For instance, adultery charges may require the adulterous relationship to be open and notorious, 25 or be more than a single act of infidelity, or require cohabitation between the adulterer and the adulteress. Such a definition would require a finding on the degree of infidelity.26 In other instances, the spouses may also be punishable for adultery. Such a provision raises a doubt as to how that may secure the relationship between the spouses and the institution of marriage. Another variation, in some jurisdictions is that cognizance of the offence of adultery is taken only at the instance of the State, and its enforcement is generally a rarity. 7.1. Various legal systems have found adulterous conduct sufficiently injurious to justify some form of criminal sanction. Such conduct is one, which the society is not only unwilling to approve, but also attaches a criminal label to it. * United States of America In the United States of America, 17 out of 50 States continue to treat adultery‟ as a criminal offence under the State law. 27 The characterization of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akdown of marriages , and adultery is a ground for establishing the same. 34 * Malaysia In Malaysia, adultery is punishable as a crime under the Islamic Laws. However, the Law Reform (Marriage and Divorce) Act, 1976 made it a civil wrong, for all non-Muslims. Similar to the position in Canada, this Act makes adultery a ground for granting divorce, as it is a proof of Breakdown of Marriage .35 Interestingly though, the Act also allows either spouse, to be an aggrieved party and claim damages from the adulterer or adulteress. 36 * Japan In Japan, the provision for adultery was somewhat similar to the present Section 497 of I.P.C.; it punished the woman and the adulterer only on the basis of the complaint filed by the husband. In case the act of adultery was committed with the consent of the husband, there would be no valid demand for prosecution of the offence37. This provision has since been deleted.38 Adultery is now only a ground for divorce in Japan under the Civil Code. 39 * South Africa In South Africa, in the case of DE v. RH (RH v. DE (594/2013) [2014] ZASCA 133 (25 September 2014) The Constitutional Court of South Africa struck down adultery as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unethical to violate the marital fidelity, it should not be punished by criminal law . .. The exercise of criminal punishment should be the last resort for the clear danger against substantial legal interests and should be limited at least. It belongs to a free domain of individuals for an adult to have voluntary sexual relationships, but it may be regulated by law when it is expressed and it is against the good sexual culture and practice. It would infringe on the right to sexual self-determination and to privacy for a State to intervene and punish sexual life which should be subject to sexual morality and social orders. The tendency of modern criminal law directs that the State should not exercise its authority in case an act, in essence, belongs to personal privacy and is not socially harmful or in evident violation of legal interests, despite the act is in contradiction to morality. According to this tendency, it is a global trend to abolish adultery crimes. (Emphasis supplied) The Court concluded that it was difficult to see how criminalization of adultery could any longer serve the public interest of protecting the monogamy-based marriage system, maintain goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stating that Section 497 could not be struck down on the ground that it would be desirable to delete it from the statute books. The Court repelled the plea on the ground that it is commonly accepted that it is the man who is the seducer‟, and not the woman. The Court recognized that this position may have undergone some change over the years, but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the transformation‟ which the society has undergone. 8.3. In V. Revathi v. Union of India (1988) 2 SCC 72), a two-judge bench of this court upheld the constitutional validity of Section 497, I.P.C. and Section 198(2) of the Cr.P.C. The petitioner contended that whether or not the law permitted a husband to prosecute his disloyal wife, a wife cannot be lawfully disabled from prosecuting her disloyal husband. Section 198(2) Cr.P.C. operates as a fetter on the wife in prosecuting her adulterous husband. Hence, the relevant provision is unconstitutional on the ground of obnoxious discrimination. This Court held that Section 497 I.P.C. and Section 198(2) Cr.P.C. together form a legislative package. In essence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual has an unfettered right (whether married or not; whether man or woman) to engage in sexual intercourse outside his or her marital relationship. The right to privacy is an inalienable right, closely associated with the innate dignity of an individual, and the right to autonomy and selfdetermination to take decisions. Reliance was placed on the judgment in Shafin Jahan v. Asokan K.M. Ors. (2018 SCC Online SC 343) where this Court observed that each individual is guaranteed the freedom in determining the choice of one‟s partner, and any interference by the State in these matters, would have a serious chilling effect on the exercise of the freedoms guaranteed by the Constitution. The Petitioners placed reliance on the judgment of K.S. Puttaswamy v. Union of India (2017) 10 SCC 1) wherein a nine-judge bench of this Court held that the right to make decisions on vital matters concerning one‟s life are inviolable aspects of human personality. This Court held that: 169. .. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r instances where the husband has sexual relations outside his marriage would not render it unconstitutional. It was further submitted that the sanctity of family life, and the right to marriage are fundamental rights comprehended in the right to life under Article 21. An outsider who violates and injures these rights must be deterred and punished in accordance with criminal law. It was finally suggested that if this Court finds any part of this Section violative of the Constitutional provisions, the Court should read down that part, in so far as it is violative of the Constitution but retain the provision. DISCUSSION AND ANALYSIS 10. Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution. 11. Section 497 of the I.P.C. it is placed under Chapter XX of Offences Relating to Marriage . The provision of Section 497 is replete with anomalies and incongruities, such as: i. Under Section 497, it is only the male-paramour who is punishable for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved. Section 497 of the I.P.C., makes two classifications: i. The first classification is based on who has the right to prosecute: It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person given the right to prosecute for the offence of adultery. Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour. ii. The second classification is based on who can be prosecuted. It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an abettor to the offence. The aforesaid classifications were based on the historical context in 1860 when the I.P.C. was enacted. At that point of time, women had no rights independent of their husbands, and were treated as chattel or property‟ of their husbands. Hence, the offence of adultery was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tel Assn. of India (2008) 3 SCC 1) this Court held that: 20. At the very outset we want to define the contours of the discussion which is going to ensue. Firstly, the issue floated by the State is very significant, nonetheless it does not fall in the same class as that of rights which it comes in conflict with, ontologically. Secondly, the issue at hand has no social spillovers. The rights of women as individuals rest beyond doubts in this age. If we consider (various strands of) feminist jurisprudence as also identity politics, it is clear that time has come that we take leave of the theme encapsulated under Section 30. And thirdly we will also focus our attention on the interplay of doctrines of self-determination and an individual's best interests. .. 26. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria. The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classes. However, Article 15(3) cannot operate as a cover for exemption from an offence having penal consequences. A Section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination. 15. The Petitioners have contended that the right to privacy under Article 21 would include the right of two adults to enter into a sexual relationship outside marriage. The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21. In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) Anr. v. UOI Anr. (supra): (i) legality, which postulates the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely an act committed against an individual victim. To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrong doing. The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the best interest‟ of the individual. Andrew Ashworth and Jeremy Horder in their commentary titled Principles of Criminal Law‟ (Oxford University Press, (7th Edn.) May 2013) have stated that the traditional starting point of criminalization is the harm principle‟ the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be proved before the State can classify a wrongful act as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Vishnu (supra), V. Rewathi (supra) and W. Kalyani (supra) hereby stand overruled. NOTES: 5 Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard University Press (1991) 6 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 41 6 THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886). 8 DHARMASUTRAS THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 70-71 (Translation by Patrick Olivelle, Oxford University Press 1999). 10 THE KORAN (AL QUR AN): ARABIC-ENGLISH BILINGUAL EDITION WITH AN INTRODUCTION BY MOHAMED A. ARAFA 363 (Maulana Muhammad Ali Translation, TellerBooks, 2018). 12 Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex between Domestic Relations Attorneys and Their Clients, 23 HARVARD WOMEN S LAW JOURNAL 1, 21-22 (2000) [ Linda Fitts Mischler ]. 18 A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 (G.H. Huttmann, The Bengal Military Orphan Press, 1837). 19 COPIES OF THE SPECIAL RE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 281 39 Charles E. Torcia, Wharton's Criminal Law, Section 218, (1994) at page 528 40 J. E. Loftis, Congreve s Way of the World and Popular Criminal Literature, Studies in English Literature, 1500 1900 36(3) (1996), at page 293 41 Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660 1800 (2009), at page 143 42 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 28 43 Blackstone s Commentaries on the Laws of England, Book IV (1778), at page 191-192 45 William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages 442 445 46 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161 48 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161 49 Blackstone s Commentaries on the Laws of England, Book IV (1778), at pages 64-65 50 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 Supra, note 64, Part V- A (3)(3) ( Effectiveness of Criminal Punishment , under the head of Appropriateness of Means and Least Restrictiveness ) 71 Supra, note 64, Part V- A (5) ( Balance of Interests Conclusion ) 72 Constitutional Petitions Nos. 13 /05 / 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007), available at https://ulii.org/ug/judgment/constitutional-court/2007/1 73 Reuters: Uganda scraps sexist adultery law , (April 5, 2007), available at https://www.reuters.com/article/us-uganda-adultery/uganda-scraps-sexist-adultery-law-idUSL0510814320070405 74 Constitutional Petitions Nos. 13 /05 / 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of Uganda, [2007] UGCC 1 (5 April, 2007), available at https://ulii.org/ug/judgment/constitutional-court/2007/1 78 Martin J. Siegel, For Better or For Worse: Adultery, Crime the Constitution, Journal of Family Law, Vol.30, (1991) 45 86 Martin J. Siegel, For Better or For Worse: Adultery, Crime the Constitution, Journal of Family Law, Vol.30, (1991) 74 90 Martin J. Siegel, For Better or For Worse: Adultery, Crime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Sage Publications (1996) at page 119 137 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting Archana Verma, Stree Vimarsh Ke Mahotsav (2010) 1 The New international Webster‟s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.) at page 21. 2 Outhwaite, R.B. (2007). The Rise and Fall of the English Ecclesiastical Courts, 1500 1860. Cambridge, UK: Cambridge University Press 3 Fernandez, Angela Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity. Married Women and the Law: Coverture in England and the Common Law World, edited by Tim Stretton and Krista J. Kesselring, McGill-Queen's University Press, 2013, pp. 192 216. 4 Blackstone s Commentaries on the Laws of England, Books III IV (8th Edn.), 1778 5 Bracton: De Legibus Et Consuetudinibus Angli (Bracton on the Laws and Customs of England attributed to Henry of Bratton, c. 1210-1268) Vol III, pg. 115 Available at http://bracton.law.harvard.edu/index.html 8 Margot Finn (1996). Women, Consumption and Coverture in England, c. 1760 1860. The Histori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Second Report on the Indian Penal Code 21 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code 22 42nd Report on the Indian Penal Code, Law Commission of India Available at: http://lawcommissionofindia.nic.in/1-50/report42.pdf 23 156th Report on the Indian Penal Code (Vol. I), Law Commission of India, pages 169 - 172 Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf 25 Illinois Criminal Code, 720 ILCS 5/11-35, Adultery (a) A person commits adultery when he or she has sexual intercourse with another not his or her spouse, if the behavior is open and notorious, 26 Martin Siegel, For Better or for Worse: Adultery, Crime the Constitution, 30 Journal Of Family Law 45, 51-52 (1991) 27 Abhinav Sekhri, The Good, The Bad, and The Adulterous: Criminal Law and Adultery in India, 10 Socio Legal Review 47 (2014) 29 Utah Code Ann. 76-7-103, (1) A married person commits adultery when he voluntarily has sexual intercourse with a person other than his spouse. (2) Adultery is a class B misdemeanour. 30 New York Penal Laws, Article 255.17-Adultery, A person is guilty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harged from the proceedings; or (b) if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the petitioner such damages as it may think fit, but so that the award shall not include any exemplary or punitive element. 37 S. 183, Penal Code, 1907 [Japan], Whoever commits adultery with a married woman will be punished by prison upto two years. The same applies to the other party of the adultery. These offences are only prosecuted on demand of the husband. If the husband has allowed the Adultery, his demand is not valid. [ as translated by Karl-Friedrich Lenz, in History of Law in Japan since 1868, ed. Wilhelm Rohl, published by Brill, 2005, at page 623] 38 H. Meyers, Revision of Criminal Code of Japan Washington Law Review State Bar Journal, Vol. 25, (1950) at pp. 104-134 39 Article 770, Civil Code, 1896. [Japan], Article 770 (1) Only in the cases stated in the following items may either husband or wife file a suit for divorce: (i) if a spouse has committed an act of unchastity; . 43 Anayasa Mahkemesi, 1996/15; 1996/34 (Sept. 23, 1996) See also, Anayasa Mah ..... X X X X Extracts X X X X X X X X Extracts X X X X
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