New Delhi:

Justice Rohinton F Nariman said almost all ancient civilisations punished the “sin of adultery” and Hammurabi’s Code of 1754 BC prescribed death by drowning as punishment for the offence, be it by the wife or the husband.

“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. 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,” he said.

“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. Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words let him who has not sinned cast the first stone,” he added.

In India, too, Manusmriti provided for punishment for those addicted to intercourse with other men’s wives “by punishment which cause terror, followed by banishment”, Justice Nariman said. “The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman. However, in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a Vedic scholar, for three years,” he added.

“In Islam, in An-Nur, namely Chapter 24 of the Quran, Verse 2 reads as follows, ‘The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe Allah and the last day, and let a party of believers witness their chastisement’,” he said.

Justice Nariman said in 17th century England, adultery was only a ground for divorce but became a capital offence in Cromwell’s puritanical England in 1650, which was nullified as soon as King Charles II came back to restore monarchy. He said in the first draft of IPC by Lord Macaulay, he had refused to make adultery a penal offence.

Narrating the adultery scenario in India, Justice Nariman said, “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.”

Sec 497 Unconstitutional, Allows Man To Control Wife’s Sexuality: Chandrachud

 

Faulting the constitutionality of Section 497, which made adultery an offence, Justice D Y Chandrachud on Thursday said marriage could not be a tool to allow a husband to curtail the sexual autonomy of his wife.

“The sexual autonomy of a woman is part of her inviolable core. Neither the state (through Section 497) nor the institution of marriage can disparage it. By reducing the woman to the status of a victim and ignoring her needs, the provision penalising adultery disregards something which is basic to human identity. Sexuality is a definitive expression of identity. Autonomy over one’s sexuality has been central to human urges down through the ages. It has a constitutional foundation as intrinsic to autonomy,” he said.

“Underlying Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible. In condemning the sexual agency of the woman, only the husband, as the ‘aggrieved’ party, is given the right to initiate prosecution… Sexual relations by a man with another man’s wife is therefore considered as theft of the husband’s property. Ensuring a man’s control over the sexuality of his wife was the true purpose of Section 497,” he added.

Scripting a chapter in the judgment titled ‘Good Wife’, Justice Chandrachud said, “Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one’s actions. Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values.

“The consent of the husband serves as the key to the exercise of the sexual agency of his spouse. That the married woman is in a consensual relationship (with another married man) is of no consequence to possible prosecution.”

Mocking the irrational social norms fastened on women, Justice Chandrachud said, “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 of Indian Penal Code gives legal recognition to socially discriminatory and genderbased 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 labelled immoral, shameful and were criminally condemned.

“Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence. 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.”

Difficult to prove, Sec 497 hardly saw any conviction

New Delhi:

Criminal lawyers were on Thursday hard pressed to recall a single case where a man was convicted for adultery under section 497 IPC, a clause now decriminalised by the Supreme Court.

Interestingly, the National Crime Records Bureau doesn’t even maintain a database on adultery cases as instances are negligible and there is a low chance of conviction in courts.

Adultery charges are sometimes levelled in cases where warring couples are trying to get an upper hand in legal battles over dowry harassment and cruelty, with desperation often triggering counter charges and FIRs. Ultimately, lawyers concede that the section rarely goes beyond the summons stage when parties either settle the matrimonial dispute or divorce each other.

Lawyer Vijay Aggarwal, who practices extensively in Delhi’s trial courts, says while he considers the SC ruling a very welcome step, it doesn’t change the equation much on the ground. “The conviction rate in section 497 IPC was negligible because proof of sexual intercourse is required to prove adultery which is seldom available as everything happens behind closed doors. Hence, such an offence is almost impossible to prove. So, this is more of a technical correction as cases were not reaching anywhere even otherwise,” he said.

However, the ruling will put an end to the practice of couples using the section more as a weapon. Lawyers told TOI it is common for cornered husbands facing dowry harassment charges to hit back against those helping the estranged wife by accusing them of adultery and prolonging criminal proceedings.

Advocate Prabhjit Jauhar, who specialises in fighting divorce cases, cited a rare case decided by the Delhi high court in 1972 where it punished a man for adultery by keeping him in custody till the rising of the court along with a fine of Rs 1,000.

“Due to it being a bailable offence which is non-cognizable (police can register case only on court orders), there ares hardly any convictions as the cases peter out in court once summoning of the accused starts and the judge has to go by actual evidence. The utility of this section was limited to forcing the other party to settle or cave in, not to result in a conviction. Viewed in that light the SC has ended misuse of this law,” Jauhar added.

Times View

The Supreme Court has been wise in decriminalising adultery. This newspaper has consistently held that while many may view adultery as morally problematic, this is a matter of personal morality and the state should stay out of it. We had called for IPC Section 497 to be scrapped on these grounds and pointed out that “using laws to enforce faithfulness in marriage is as absurd as making it legally mandatory for husband and wife to love each other”. This judgment is welcome also because it does away with a law that was blatantly patriarchal and treated married women as the property of their husbands. Even the British, who introduced it in India, did away with it in their own country as far back as 1857. Justice Chandrachud’s judgment in particular is clear that denying sexual autonomy to women is unconstitutional and unacceptable. We hope the government will now show good sense in accepting the verdict and not seek a review.

Must protect autonomy to make intimate choices’

New Delhi:

The Supreme Court had many questions against the rationale behind adultery being made a criminal offence, prominent among which was why was it not adultery if a married man had sexual relationship with an unmarried woman, divorcee or a widow?

Though it struck down adultery as a criminal offence, a bench of CJI Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra said, “There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong, including dissolution of marriage. But the pivotal question is whether it should be treated as a criminal offence. When we say so, it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty.”

It said though Section 497 pretended to protect the married woman from being proceeded against for adultery or even as abettor to the crime, it gave no right to the other woman (the adulterous married man’s wife) to file a complaint against her husband. Moreover, why did the law not punish a man for adultery if he had sexual relations with an unmarried woman or a widow, acts which were against the sanctity of marriage, the bench asked.

CJI Misra and Justice Khanwilkar said, “Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result… If adultery is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships.”

Elaborating on this, Justice Nariman said, “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 (married) man, the other man is immediately guilty of the offence.”

Justice Malhotra said, “It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a ‘victim’, and the male offender is the ‘seducer’.

“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 censures 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.”

Justice Chandrachud added, “In so far as two individuals engage in the (sexual) acts based on consent, the law cannot intervene. Any intrusion in this private sphere would amount to deprivation of autonomy and sexual agency, which every individual is imbued with

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