JOSEPH SHINE versus UNION OF INDIA

[2018] 11 S.C.R. 765

JOSEPH SHINE

UNION OF INDIA

(Writ Petition (Criminal) No. 194 of 2017)

SEPTEMBER 27, 2018[DIPAK MISRA, CJI, R.F. NARIMAN,A.M. KHANWILKAR, DR. D.Y. CHANDRACHUD ANDINDU MALHOTRA, JJ.]

Penal Code, 1860: s.497 – s. 198 of Cr.P.C – Offence ofAdultery – Whether unconstitutional, being violative of Articles 14,15 and 21 – Held: (Per Court): s. 497 IPC and s. 198 Cr.P.C. beingviolative of Articles 14, 15 and 21 of the Constitution, areunconstitutional – (Per Dipak Misra, CJI): s. 497 treats women,subordinate to men – The rationale of the provision suffers fromabsence of logicality of approach and therefore suffers from viceof Art. 14 being manifestly arbitrary – Section 497 also createsinvidious distinctions based on gender stereotypes which creates adent in the individual dignity of women and hence offends Art. 21 –Offence of adultery u/s. 497 IPC does not fit into the concept ofcrime – If it is treated as crime, there would be immense intrusioninto the extreme privacy of the matrimonial sphere – Section 198Cr.P.C. deals with procedure for filing complaint in relation tooffence u/s. 497 IPC, and hence it is also unconstitutional – (PerR.F. Nariman, J.): What is punished as ‘adultery’ is not ‘adultery’per se, but the proprietary interest of married man in his wife –The archaic law u/s. 497 has long outlived its purpose and does notsquare with today’s constitutional morality – It has become utterlyirrational, manifestly arbitrary and discriminatory and henceviolative of Art. 14 and 15(1) – Dignity of individual is facet ofArt. 21 – statutory provision which degrades the status of women,falls foul of modern constitutional doctrine and must be struck downbeing violative of Art. 21 – Section 198 Cr.P.C. also beingdiscriminatory provision, is held constitutionally infirm – (PerChandrachud, J:): Right to sexual autonomy and privacy has beengranted the stature of constitutional right – Section 497, in its

DEF

Aeffort to protect the sanctity of marriage, has adopted notion ofmarriage which does not regard the man and the woman as equalpartners – Section 497 thus subordinates the woman to positionof inferiority – Constitutional morality requires the court to enforceconstitutional guarantees of equality before law, non-discriminationon account of sex and dignity, all of which are affected by operationBof s. 497 – Therefore, s. 497 IPC violates Art. 14 – It is based ongender stereotypes about the role of women and violates the non-discrimination principle embodied in Art. 15 – It is also denial ofthe constitutional guarantees of dignity, liberty, privacy and sexualautonomy which are intrinsic to Art. 21 – Thus, Section 497 IPC isCunconstitutional – (Per Indu Malhotra, J.): Section 497 IPC failsto consider both men and women as equally autonomous individualsin society – The anomalies and inconsistencies in s. 497 IPC wouldrender the provision liable to be struck down on the ground of beingarbitrary and discriminatory – Any legislation which treats similarly

situated persons unequally or discriminates between persons onDthe basis of sex alone is liable to be struck down as being violativeof Articles 14 and 15 – Right to privacy u/Art. 21 would include theright of two adults to enter into sexual relationship outsidemarriage – An invasion of privacy u/Art. 21, by the State must meeta three-fold requirement i.e. (i) legality, (ii) need and (iii)Eproportionality – Section 497 IPC as it stands today fails to meetthe three fold requirement and therefore violative of Art. 21 – Section198(2) of Cr.P.C. which contains the procedure for prosecutionunder Chapter XX of IPC shall be unconstitutional only to the extentthat it is applicable to the offence of adultery u/s. 497 IPC –Constitution of India – Arts. 14, 15 and 21.F

Constitution of India:

Art. 15(3) – Protective discrimination – Applicability of – Tos.497 IPC – Held ( Per: R.F. Nariman, J.): Art. 15(3) is applicableonly to the law made by the State after coming into force of theGConstitution and not to “existing law” – s. 497 is, in constitutionallanguage, an “existing law” which continues, by virtue of Art.372(1), to apply, and could not be said to be law made by the“State” – (Per D.Y. Chandrachud, J.): - Art. 15 (3) does not protecta statutory provision that entrenches patriarchal notions in garb ofprotecting women – ‘Protection’ afforded to women u/s. 497

highlights the lack of sexual agency that the Section imputes to awoman – (Per: Indu Malhotra, J.): – The purpose of Art. 15(3) isto further socio-economic equality of women – Section 497 cannotbe considered to be beneficial legislation covered by Art. 15(3) –Penal Code, 1860 – s. 497.

Art. 21 – Right to privacy and personal liberty – Held: (PerIndu Malhotra, J.): An invasion of privacy u/Art. 21, by the Statemust be justified on the basis of law that is reasonable and valid –Such invasion must meet three-fold requirement i.e. (i) legality, (ii)need and (iii) proportionality – Section 497 of IPC fails to meet thethree-fold requirement – Therefore, right to privacy u/Art.21 wouldinclude the right of two adults to enter into sexual relationshipoutside marriage – Penal Code, 1860 – s. 497.

Art. 21 – Right to live with dignity – Scope of – Held: (Per:Indu Malhotra, J.): – Right to live with dignity includes the rightnot to be subjected to public censure and punishment by the Stateexcept where absolutely necessary – Penal Code, 1860 – s. 497.

Criminal Law:

Criminal sanction – When justified – Held:(Per: InduMalhotra, J.) – Criminal sanction may be justified where there is apublic element in the wrong – State must follow the minimalistapproach in the criminalization of offences, keeping in view therespect for the autonomy of the individual to make his/her personalchoices – Adultery is only moral wrong qua the spouse and thefamily – In order to determine what conduct requires Stateinterference through criminal sanction, the State must considerwhether civil remedy will serve the purpose – Where civil remedyfor wrongful act is sufficient, it may not warrant criminal sanctionby the State – Penal Code, 1860 – s. 497 – Remedy.

Presumption:

Presumption of constitutionality – Held: (Per InduMalhotra, J.) – There would be no presumption of constitutionalityin pre-constitutional law – Constitutionalism.

Legislation:

Purpose of legislation – Held (Per Dipak Misra, CJI) – Alegislation should serve and promote good life – It should be fit

BCD

Aand equitable so that it can have right to command obedience.Law:

Constitutionality of procedural law – When substantiveprovision is held unconstitutional – Held (Per Dipak Misra, CJI)When the substantive provision goes, the procedural provision hasBto to pave the same path.

Doctrine/Principle:

Principle of Conventure – Explained.

Maxim:C

‘Cessante ratione legis, cessat ipsa lex’ – Applicability of.

Words & Phrases:

‘Adultery’ – Meaning of.

‘Crime’ – Meaning of.D

Allowing the writ petition, the Court

HELD: Per: Dipak Misra, CJI (For himself andA.M. Khanwilkar, J.)

1.1 The progression in law and the perceptual shift compelsEthe present to have penetrating look to the past. Though thereis necessity of certainty of law, yet with the societal changes andmore so, when the rights are expanded by the Court in respectof certain aspects having regard to the reflective perception ofthe organic and living Constitution, it is not apposite to have anFinflexible stand on the foundation that the concept of certainty oflaw should be allowed to prevail and govern. [Para 2][804-C-D]1.2 constitutional court cannot remain entrenched in aprecedent, for the controversy relates to the lives of human beingswho transcendentally grow. It can be announced with certitudethat transformative constitutionalism asserts itself every momentGand asserts itself to have its space. It is abhorrent to any kind ofregressive approach. The whole thing can be viewed from anotherperspective. What might be acceptable at one point of time maymelt into total insignificance at another point of time. However,the change perceived should not be in sphere of fancy orHindividual fascination, but should be founded on the solid

bedrock of change that the society has perceived, thespheres in which the legislature has responded and therights that have been accentuated by the constitutional courts.[Para 3][804-G-H; 805-A-B]

1.3 Despite conferring many right on women within theparameters of progressive jurisprudence and expansiveconstitutional vision, the Court cannot conceive of women stillbeing treated as property of men, and secondly, where thedelicate relationship between husband and wife does not remainso, it is seemingly implausible to allow criminal offence to enterand make third party culpable. [Para 3][805-B-C]

On the subjection of women by John Stuart Mill, 1869Chapter 1 - referred to.

2.1 The husband of the woman has been treated to be aperson aggrieved for the offences punishable under Sections 497and 498 of the IPC. The rest of the proviso carves out an exceptionas to who is entitled to file complaint when the husband is absent.The offence is non-cognizable. [Para 11][811-D-E]

2.2 On reading of s. 497 IPC it is demonstrable thatwomen are treated as subordinate to men inasmuch as it laysdown that when there is connivance or consent of the man, thereis no offence. This treats the woman as chattel. It treats her asthe property of man and totally subservient to the will of themaster. It is reflection of the social dominance that was prevalentwhen the penal provision was drafted. [Para 22][818-F-G]

2.3 Section 497 IPC does not bring within its purview anextra marital relationship with an unmarried woman or widow.The dictionary meaning of “adultery” is that married personcommits adultery if he has sex with woman with whom he hasnot entered into wedlock. ‘Adultery’ is the voluntary sexualintercourse of married person with person other than theoffender’s husband or wife. However, the provision has made it arestricted one as consequence of which man, in certainsituations, becomes criminally liable for having committedadultery while, in other situations, he cannot be branded as aperson who has committed adultery so as to invite the culpabilityof Section 497 IPC. [Para 23][818-G-H; 819-A-B]

770SUPREME COURT REPORTS

A2.4 Section 198 CrPC deals with “person aggrieved”. Sub-section (2) of Section 198 treats the husband of the woman asdeemed to be aggrieved by an offence committed under Section497 IPC. and in the absence of husband, some person who hadcare of the woman on his behalf at the time when such offencewas committed with the leave of the court. It does not considerBthe wife of the adulterer as an aggrieved person. The offenceand the deeming definition of an aggrieved person, is absolutelyand manifestly arbitrary as it does not even appear to be rationaland it can be stated with emphasis that it confers licence on thehusband to deal with the wife as he likes which is extremelyCexcessive and disproportionate. It does not treat woman as anabettor but protects woman and simultaneously, it does notenable the wife to file any criminal prosecution against thehusband. Indubitably, she can take civil action but the husbandis also entitled to take civil action. However, that does not savethe provision as being manifestly arbitrary. Thus, on the oneDhand, it protects woman and on the other, it does not protectthe other woman. The rationale of the provision suffers from theabsence of logicality of approach and, therefore, it suffers fromthe vice of Article 14 of the Constitution being manifestly arbitrary.[Para 23][819-B-F]

EShayara Bano v. Union of India and others (2017) 9SCC 1: [ 2017] 7 SCR 797 – followed.

State of Mysore v. S.R. Jayaram (1968) 1 SCR 349;Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC1: [1976] SCR 347; E.P. Royappa v. State of TamilFNadu (1974) 4 SCC 3: [1974] 2 SCR 348; ManekaGandhi v. Union of India (1978) 1 SCC 248: [1978] 2SCR 621; A.L. Kalra v. Project and EquipmentCorporation of India Ltd. (1984) 3 SCC 316 : [1984]3 SCR 646; Ajay Hasia v. Khalid Mujib Sehravardi(1981) 1 SCC 722 :[1981] 2 SCR 79; K.R. LakshmananGv. State of T. N. (1996) 2 SCC 7 226 : [1996] 1 SCR395; Mithu v. State of Punjab (1983) 2 SCC 277:[1983]2 SCR 690; Sunil Batra v. Delhi Administration (1978)4 SCC 494 : [1979] 1 SCR 392;Charu Khurana andothers v. Union of India and others (2015) 1 SCC 192:[2014] 12 SCR 259 – referred to.

HBlack’s Law Dictionary – referred to.

3. There cannot be patriarchal monarchy over the daughteror, for that matter, husband’s monarchy over the wife. That apart,there cannot be community exposition of masculine dominance.The Court, with the passage of time, has recognized theconceptual equality of woman and the essential dignity which awoman is entitled to have. There can be no curtailment of thesame. But, Section 497 IPC effectively does the same by creatinginvidious distinctions based on gender stereotypes whichcreates dent in the individual dignity of women. Besides,the emphasis on the element of connivance or consent of thehusband tantamounts to subordination of women.Therefore, the same offends Article 21 of the Constitution.[Paras 36, 41][826-D-E; 831-B-C]

Arun Kumar Agrawal and another v. National InsuranceCompany Limited and others (2010) 9 SCC 218: [2010]9 SCR 303; State of Madhya Pradesh v. Madanlal(2015) 7 SCC 681: [2015] 7 SCR 998; Pawan Kumarv. State of Himachal Pradesh (2017) 7 SCC 780 : [2017]3 SCR 458; Voluntary Health Association of Punjab v.Union of India (2013) 4 SCC 1: [2013] 5 SCR 111;Shakti Vahini v. Union of India and others (2018) 7SCC 192; K.S. Puttaswamy and another v. Union ofIndia and others (2017) 10 SCC 1; National LegalServices Authority v. Union of India and Others (2014)5 SCC 438; Common Cause (A Registered Society) v.Union of India and another (2018) 5 SCC 1:[2008] 8SCR 1; Shamima Farooqui v. Shahid Khan (2015) 5SCC 705 – referred to.

R v. R (1991) 4 ALL ER 481 – referred to.

Lord Denning The Due Process of Law (London,Butterworths, 1980) – referred to.

4.1"a good legislation should be fit and equitable so that itcan have right to command obedience”. These are twocompartments, namely, ‘equity’ and ‘utility’. Thus, laws andlegislations are necessary to serve and promote good life.[Para 42][831-H; 832-A]

A4.2 Treating adultery an offence, would tantamount to theState entering into real private realm. Under the existingprovision, the husband is treated as an aggrieved person and thewife is ignored as victim. Presently, the provision is reflectiveof tripartite labyrinth. situation may be conceived of whereequality of status and the right to file case may be conferred onBthe wife. In either situation, the whole scenario is extremelyprivate. It stands in contradistinction to the demand for dowry,domestic violence, sending someone to jail for non-grant ofmaintenance or filing complaint for second marriage. Adulterystands on different footing from the aforesaid offences.C[Para 49][835-C-D]

4.3 The Parliament has the law making power. The Courtmakes it very clear that it is not making law or legislating butonly stating that particular act, i.e., adultery does not fit into theconcept of crime. If it is treated as crime, there would beDimmense intrusion into the extreme privacy of the matrimonialsphere. It is better to be left as ground for divorce. For anyother purpose as the Parliament has perceived or may, at anytime, perceive, to treat it as criminal offence will offend the twofacets of Article 21 of the Constitution, namely, dignity of husbandand wife, as the case may be, and the privacy attached to aErelationship between the two. [Para 49][835-E-F]

4.4 In case of adultery, the law expects the parties to remainloyal and maintain fidelity throughout and also makes the adultererthe culprit. This expectation by law is command which getsinto the core of privacy. That apart, it is discriminatory commandFand also socio-moral one. Two individuals may part on the saidground but to attach criminality to the same is inapposite.[Para 53][837-C-D]

4.5 When the parties to marriage lose their moralcommitment of the relationship, it creates dent in the marriageGand it will depend upon the parties how they deal with the situation.Some may exonerate and live together and some may seekdivorce. It is absolutely matter of privacy at its pinnacle. Thetheories of punishment, whether deterrent or reformative, wouldnot save the situation. punishment is unlikely to establishHcommitment, if punishment is meted out to either of them or

third party. Adultery, in certain situations, may not be the causeof an unhappy marriage. It can be the result. It is difficult toconceive of such situations in absolute terms. The issue thatrequires to be determined is whether the said ‘act’ should bemade criminal offence especially when on certain occasions, itcan be the cause and in certain situations, it can be the result. Ifthe act is treated as an offence and punishment is provided, itwould tantamount to punishing people who are unhappy in maritalrelationships and any law that would make adultery crime wouldhave to punish indiscriminately both the persons whose marriageshave been broken down as well as those persons whose marriagesare not. law punishing adultery as crime cannot makedistinction between these two types of marriages. It is bound tobecome law which would fall within the sphere of manifestarbitrariness. [Para 54][837-E-H; 838-A-B]

4.6 Thinking of adultery from the point of view of criminalitywould be retrograde step. This Court has travelled on the pathof transformative constitutionalism and, therefore, it is absolutelyinappropriate to sit in time machine to different era where themachine moves on the path of regression. Hence, to treat adulteryas crime would be unwarranted in law. [Para 55][838-C-D]

Central Inland Water Transport Corporation Limitedand another v. Brojo Nath Ganguly (1986) 3 SCC 156:[1986] 2 SCR 278; Common Cause (A RegisteredSociety) v. Union of India and another (2018) 5 SCC1:[2008] 8 SCR 1 – relied on.

Pinakin Mahipatray Rawal v. State of Gujarat (2013)10 SCC 48 : [2013] 10 SCR 306; GhusabhaiRaisangbhai Chorasiya v. State of Gujarat (2015) 11SCC 753:[2015] 2 SCR 594 – referred to.

“Principles of Criminal Liability” Halsbury’s Laws ofEngland, 4th Edn., Vol. 11 p.11,; Kenny’s Outlines ofCriminal Law, 19th Edn., 1966 by J.W. Cecil Turner –referred to.

5. As the court has held that Section 497 IPC isunconstitutional and adultery should not be treated as an offence,it is appropriate to declare Section 198 CrPC which deals with

Athe procedure for filing complaint in relation to the offence ofadultery as unconstitutional. When the substantive provisiongoes, the procedural provision has to pave the same path.[Para 56][838-F]

Sowmithri Vishnu v. Union of India and another (1985)BSupp SCC 137:[1985] Suppl. SCR 741; V. Revathi v.Union of India and others (1988) 2 SCC 72 : [1988] 3SCR 73 – overruled.

Yusuf Abdul Aziz v. State of Bombay 1954 SCR 930;W. Kalyani v. State through Inspector of Police andCanother (2012) 1 SCC 358; Central Board of DawoodiBohra Community and another v. State of Maharashtraand another (2005) 2 SCC 673: [2004] 6 Suppl. SCR1054; W. Kalyani v. State Thro’ Inspector of Police andanother (2012) 1 SCC 358 – referred to.

DPer: R. F. Nariman, J.(Concurring)

1. The crime of adultery punishes only third-party maleoffender as against the crime of bigamy, which punishes thebigamist, be it man or woman. What is therefore punished as‘adultery’ is not ‘adultery’ per se but the proprietary interest of aEmarried man in his wife. [Para 1][839-F-G]

2. Article 15(3) of the Constitution is not applicable in thepresent case as Art. 15(3) states that, “nothing in this Articleshall prevent the State from making special provision forwomen”, would refer to the “State” as either Parliament or theState Legislatures or the Executive Government of the CentreFor the States, set up under the Constitution after it has come intoforce. Section 497 is, in constitutional parlance, an “existing law”which continues, by virtue of Article 372(1), to apply, and couldnot therefore, be said to be law made by the “State”, meaningany of the entities referred to above. Article 15(3) refers to theGState making laws which therefore, obviously cannot includeexisting law. Article 15(3) is in this respect similar to Article 16(4).Article 19(2)-(6) clearly refers to “existing law” as being distinctfrom “the State making any law”, indicating that the State makingany law would be laws made after the Constitution comes intoforce as opposed to “existing law”, which are pre-constitutionalH

laws enacted before the Constitution came into force, as is clearfrom the definition of “existing law” contained in Article 366(10).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 begiven effect. [Paras 12-15][851-B-C; 852-D; 853-D]

Yusuf Abdul Aziz v. State 1954 SCR 930; DattatrayaMotiram More v. State of Bombay AIR 1953 Bom 311

– referred to

3.1 In order to constitute the offence of adultery, thefollowing must be established: Sexual intercourse between amarried woman and man who is not her husband; the man whohas sexual intercourse with the married woman must know orhas reason to believe that she is the wife of another man; suchsexual intercourse must take place with her consent, i.e., it mustnot amount to rape; sexual intercourse with the married womanmust take place without the consent or connivance of her husband.[Para 21][857-D-F]

3.2 What is apparent on cursory reading of theseingredients is that married man, who has sexual intercoursewith an unmarried woman or widow, does not commit the offenceof adultery. Also, if man has sexual intercourse with marriedwoman with the consent or connivance of her husband, he doesnot commit the offence of adultery. The consent of the womancommitting adultery is material only for showing that the offenceis not another offence, namely, rape. [Para 22][857-G]

3.3 This archaic law has long outlived its purpose and doesnot square with today’s constitutional morality, in that the veryobject with which it was made has since become manifestlyarbitrary, having lost its rationale long ago and having become intoday’s day and age, utterly irrational. On this basis alone, thelaw deserves to be struck down, for with the passage of time,Article 14 springs into action and interdicts such law as beingmanifestly arbitrary. legislation can be struck down on theground of manifest arbitrariness. [Para 23][858-F-G]

3.4 It is clear, therefore, that the ostensible object of Section497, as pleaded by the State, being to protect and preserve thesanctity of marriage, is not in fact the object of Section 497 at all.

AThe sanctity of marriage can be utterly destroyed by marriedman having sexual intercourse with an unmarried woman or awidow. Also, if the husband consents or connives at such sexualintercourse, the offence is not committed, thereby showing thatit is not sanctity of marriage which is sought to be protected andpreserved, but proprietary right of husband. Secondly, noBdeterrent effect has been shown to exist, or ever to have existed,which may be legitimate consideration for State enactingcriminal law. Also, manifest arbitrariness is writ large even incases where the offender happens to be married woman whosemarriage has broken down, as result of which she no longercohabits with her husband, and may in fact, have obtained decreeCfor judicial separation against her husband, preparatory to adivorce being granted. If, during this period, she has sex withanother man, the other man is immediately guilty of the offence.[Para 24][859-B-E]

3.5 Section 497 of IPC is also discriminatory and therefore,Dviolative of Article 14 and Article 15(1). In treating woman aschattel for the purposes of this provision, it is clear thatsuch provision discriminates against women on groundsof sex only, and must be struck down on this ground as well.[Para 25][859-E-F]

EShayara Bano v. Union of India and Ors. (2017) 9 SCC1 : [2017] 7 SCR 797;Justice K.S. Puttaswamy (Retd.)and Anr. v. Union of India and Ors. (2017) 10 SCC 1 :[2017] 10 SCR 569 – relied on.

4. The dignity of the individual, which is spoken of in theFPreamble to the Constitution of India, is facet of Article 21 ofthe Constitution. statutory provision belonging to the hoarypast which demeans or degrades the status of woman obviouslyfalls foul of modern constitutional doctrine and must be struckdown on this ground also. [Para 26][863-D-E]

5. Section 198, CrPC is also blatantly discriminatoryGprovision, in that it is the husband alone or somebody on hisbehalf who can file complaint against another man for thisoffence. Consequently, Section 198 has also to be heldconstitutionally infirm. [Para 25][859-F-G]

6. Ancient notions of the man being the seducer and theHwoman being the victim permeate the judgment, which is no

longer the case today. The moving times have not left the lawbehind and so far as engaging the attention of law makers whenreform of penal law is undertaken, that even when the CrPC wasfully replaced in 1973, Section 198 continued to be on the statutebook. Even as of today, Section 497 IPC continues to be on thestatute book. When these sections are wholly outdated and haveoutlived their purpose, not only does the maxim of Roman law,“cessante ratione legis, cessat ipsa lex,” apply to interdict suchlaw, but when such law falls foul of constitutional guarantees, it isthis Court’s solemn duty not to wait for legislation but to strikedown such law. [Para 28][864-B-D]

7. Therefore, Section 497 of IPC and Section 198 of theCode of Criminal Procedure, 1973 are violative of Articles 14,15(1), and 21 of the Constitution of India and are, therefore, struckdown as being invalid. [Para 28][864-F-G]

Sowmithri Vishnu v. Union of India and Anr. (1985) SuppSCC 137:[1985] Suppl. SCR 741; V. Revathi v. Unionof India and Ors. (1988) 2 SCC 72 : [1988] 3 SCR 73– overruled.

Charcles A. Tinker v. Frederick L. Colwell 193 US 473(1904); Pritchard v. Pritchard and Sims [1966] 3 AllE.R. 601 – referred to.

The Laws of Manu 150 (Translation by G. Buhler,Clarendon Press, UK, 1886); Dharmasutras – The LawCodes of Apastamba, Gautama, Baudhayana, And Vasistha70-71 (Translation by Patrick Olivelle, OxfordUniversity Press 1999); The Koran (Al–Qur’an): Arabic-English Bilingual Edition with an Introduction by MohamedA. ‘Arafa 363 (Maulana Muhammad Ali Translation,Teller Books, 2018; Linda Fitts Mischler, Personal MoralsMasquerading as Professional Ethics: Regulations BanningSex between Domestic Relations Attorneys and TheirClients, 23 Harvard Women’s Law Journal 1, 21-22(2000); Penal Code prepared by the Indian LawCommissioners, and published by command of the GovernorGeneral of India in Council 91-93 (G.H. Huttmann, TheBengal Military Orphan Press, 1837 – referred to.

APer Dr. Y Chandrachud, J. (Concurring)

1. In adjudicating on the rights of women, the Court mustnot lose sight of the institutions and values which have forcedwomen to shackled existence so far. To fully recognise the roleof law and society in shaping the lives and identities of women, isBalso to ensure that patriarchal social values and legal norms arenot permitted to further obstruct the exercise of constitutionalrights by the women. [Para 3][866-F]

2. The Court has evolved jurisprudence of rights- grantingprimacy to the right to autonomy, dignity and individual choice.CThe right to sexual autonomy and privacy has been granted thestature of constitutional right. [Para 4][866-G; 867-A]

3. The history of Section 497 reveals that the law on adulterywas for the benefit of the husband, for him to secure ownershipover the sexuality of his wife. It was aimed at preventing theDwoman from exercising her sexual agency. Thus, Section 497 wasnever conceived to benefit women. In fact, the provision issteeped in stereotypes about women and their subordinate rolein marriage. The patriarchal underpinnings of the law on adulterybecome evident when the provision is considered as whole.[Para 7][869-C-D]E4. Section 497, in its effort to protect the sanctity ofmarriage, has adopted notion of marriage which does not regardthe man and the woman as equal partners. It proceeds on thesubjection of the woman to the will of her husband. In doing so,Section 497 subordinates the woman to position of inferiorityFthereby offending her dignity, which is the core of Article 21.[Para 11][872-G-H; 873-A-B]

5. Section 497 of the Penal Code, 1860 makes adultery apunishable offence against “whoever has sexual intercourse witha person who is and whom he knows or has reason to believe toGbe the wife of another man, without the consent or connivance ofthat man.” It goes on to state that, “in such case the wife shallnot be punishable as an abettor.” The offence applies only to theman committing adultery. woman committing adultery is notconsidered to be an “abettor” to the offence. The power to

prosecute for adultery rests only with the husband of the woman.[Para 14][875-B-C]

6. The history of adultery throws light upon disparateattitudes toward male and female infidelity, and reveals the doublestandard in law and morality that has been applied to men andwomen. [Para 14][875-D]

7. In its 156th Report, the Law Commission made aproposal which it believed reflected the “‘transformation’ whichthe society has undergone,” by suggesting removing theexemption from liability for women under Section 497. In 2003,the Justice Malimath Committee recommended that Section 497be made gender-neutral, by substituting the words of the provisionwith “whosoever has sexual intercourse with the spouse of anyother person is guilty of adultery.” The Committee supportedearlier proposals to not repeal the offence, but to equate liabilityfor the sexes. Neither the recommendations of the LawCommission nor those of the Malimath Committee have beenaccepted by the Legislature. Though women are exempted fromprosecution under Section 497, the underlying notion upon whichthe provision rests, which conceives of women as property, isextremely harmful. The power to prosecute lies only with thehusband (and not to the wife in cases where her husband commitsadultery), and whether the crime itself has been committeddepends on whether the husband provides “consent for theallegedly adulterous act.” [Para 23][882-B-C; F]

8. Women, therefore, occupy liminal space in the law: theycannot be prosecuted for committing adultery, nor can they beaggrieved by it, by virtue of their status as their husband’sproperty. Section 497 is also premised upon sexual stereotypesthat view women as being passive and devoid of sexual agency.Effectively, Indian jurisprudence has interpreted the constitutionalguarantee of sex equality as justification for differentialtreatment: to treat men and women differently is, ultimately, toact in women’s interests. The status of Section 497 as “specialprovision” operating for the benefit of women, therefore,constitutes paradigmatic example of benevolent patriarchy.[Para 24][882-F-G; 883-A-B]

A9. woman’s ‘purity’ and man’s marital ‘entitlement’ toher exclusive sexual possession may be reflective of theantiquated social and sexual mores of the nineteenth century,but they cannot be recognized as being so today. It is not the“common morality” of the State at any time in history, but ratherconstitutional morality, which must guide the law. In anyBdemocracy, constitutional morality requires the assurance ofcertain rights that are indispensable for the free, equal, anddignified existence of all members of society. commitment toconstitutional morality requires the Court to enforce theconstitutional guarantees of equality before law, non-Cdiscrimination on account of sex, and dignity, all of which areaffected by the operation of Section 497. [Para 25][883-C-D]10. Numerous countries around the world have takenmeasures to decriminalize the offence of adultery due to thegender discriminatory nature of adultery laws as well as on theDground that they violate the right to privacy. However,progressive action has primarily been taken on the ground thatprovisions penalising adultery are discriminatory against womeneither patently on the face of the law or in their implementation.Reform towards achieving more egalitarian society in practicehas also been driven by active measures taken by the UnitedENations and other international human rights organizations,where it has been emphasized that even seeminglygender-neutral provisions criminalising adultery cast anunequal burden on women. The abolishing of adultery has beenbrought about in equal measure by legislatures and courts.F[Para 26][883-E-F; 884-A-C]

11. The act which constitutes the offence under Section 497of the Penal Code is man engaging in sexual intercourse with awoman who is the “wife of another man”. For the offence to arise,the man who engages in sexual intercourse must either know orGhave reason to believe that the woman is married. Though manhas engaged in sexual intercourse with woman who is married,the offence of adultery does not come into being where he did sowith the consent or connivance of her husband. These ingredientsof Section 497 lay bare several features which bear on thechallenge to its validity under Article 14. The fact that the sexualHrelationship between man and woman is consensual is of no

significance to the offence, if the ingredients of the offence areestablished. What the legislature has constituted as criminaloffence is the act of sexual intercourse between man and womanwho is “the wife of another man”. [Para 30][893-D-F]

12. No offence exists where man who has subsistingmarital relationship engages in sexual intercourse with singlewoman. Though adultery is considered to be an offence relatingto marriage, the legislature did not penalise sexual intercoursebetween married man and single woman. Even though theman in such case has spouse, this is considered to be of nolegal relevance to defining the scope of the offence. That isbecause the provision proceeds on the notion that the woman isbut chattel; the property of her husband. The fact that he isengaging in sexual relationship outside marriage is of noconsequence to the law. The woman with whom he is in marriagehas no voice of her own, no agency to complain. If the womanwho is involved in the sexual act is not married, the law treats itwith unconcern. The premise of the law is that if woman is notthe property of married man, her act would not be deemed tobe ‘adulterous’, by definition. [Para 30][893-G; 894-A-B]

13. Section 497 is destructive of and deprives woman ofher agency, autonomy and dignity. If the ostensible object of thelaw is to protect the ‘institution of marriage’, it provides nojustification for not recognising the agency of woman whosespouse is engaged in sexual relationship outside of marriage.She can neither complain nor is the fact that she is in maritalrelationship with man of any significance to the ingredients ofthe offence. The law also deprives the married woman who hasengaged in sexual act with another man, of her agency. She istreated as the property of her husband. That is why no offence ofadultery would be made out if her husband were to consent toher sexual relationship outside marriage. Worse still, if the spouseof the woman were to connive with the person with whom shehas engaged in sexual intercourse, the law would blink. Section497 is thus founded on the notion that woman by entering uponmarriage loses, so to speak, her voice, autonomy and agency.Manifest arbitrariness is writ large on the provision.[Para 32][894-D-G]

A14. The hypothesis which forms the basis of the law onadultery is the subsistence of patriarchal order. Section 497 isbased on notion of morality which fails to accord with the valueson which the Constitution is founded. The freedoms which theConstitution guarantees inhere in men and women alike. Inenacting Section 497, the legislature made an ostensible effortBto protect the institution of marriage. Marriage in constitutionalregime is founded on the equality of and between spouses. Eachof them is entitled to the same liberty which Part III guarantees.Each of them is entitled to take decisions in accordance with hisand her conscience and each must have the ability to pursue theChuman desire for fulfilment. Section 497 is based on theunderstanding that marriage submerges the identity of the woman.It is based on notion of marital subordination. In recognising,accepting and enforcing these notions, Section 497 is inconsistentwith the ethos of the Constitution. Section 497 treats woman as

but possession of her spouse. The essential values on whichDthe Constitution is founded – liberty, dignity and equality – cannotallow such view of marriage. Section 497 suffers from manifestarbitrariness. [Para 35][897-A-D]

15. While engrafting the provision into Chapter XX of thePenal Code – “of offences relating to marriage” – the legislatureEhas based the offence on an implicit assumption about marriage.The notion which the law propounds and to which it imposes thesanctions of penal law is that the marital tie subordinates the roleand position of the woman. In that view of marriage, the womanis bereft of the ability to decide, to make choices and give free

Fexpression to her personality. Human sexuality is an essentialaspect of identity. Choices in matters of sexuality are reflectiveof the human desire for expression. Autonomy in matters ofsexuality is thus intrinsic to dignified human existence. Humandignity both recognises and protects the autonomy of theindividual in making sexual choices. The sexual choices of anGindividual cannot obviously be imposed on others in society andare premised on voluntary acceptance by consenting parties.[Para 36][897-E-F; 898-A]

16. Section 497 denudes the woman of the ability to makethese fundamental choices, in postulating that it is only the manHin marital relationship who can consent to his spouse having

sexual intercourse with another. Section 497 disregards the sexualautonomy which every woman possesses as necessary conditionof her existence. Far from being an equal partner in an equalrelationship, she is subjugated entirely to the will of her spouse.The provision is proffered by the legislature as an effort to protectthe institution of marriage. But it proceeds on notion of marriagewhich is one sided and which denies agency to the woman in amarital tie. The ability to make choices within marriage and onevery aspect concerning it is facet of human liberty and dignitywhich the Constitution protects. In depriving the woman of thatability and recognising it in the man alone, Section 497 fails tomeet the essence of substantive equality in its application tomarriage. Equality of rights and entitlements between parties toa marriage is crucial to preserve the values of the Constitution.Section 497 offends that substantive sense of equality and isviolative of Article 14. [Para 36][898-A-D]

17. The procedural law which has been enacted in Section198 of the Code of Criminal Procedure 1973 re-enforces thestereotypes implicit in Section 497. Cognizance of an offenceunder Chapter XX of the Penal Code can be taken by Courtonly upon complaint of person aggrieved. In the case of anoffence punishable under Section 497, only the husband of thewoman is deemed to be aggrieved by the offence. In any event,once the provisions of Section 497 IPC are held to offend thefundamental rights, the procedure engrafted in Section 198 Cr.P.C.will cease to have any practical relevance. [Para 37][898-E]18. Section 497 IPC amounts to denial of substantiveequality. The decisions in *Sowmithri and **Revathi Casesespoused formal notion of equality, which is contrary to theconstitutional vision of just social order. Justness postulatesequality. In consonance with constitutional morality, substantiveequality is “directed at eliminating individual, institutional andsystemic discrimination against disadvantaged groups whicheffectively undermines their full and equal social, economic,political and cultural participation in society.” To move away froma formalistic notion of equality which disregards social realities,the Court must take into account the impact of the rule orprovision in the lives of citizens. [Para 38][898-F-H]

A19. The primary enquiry to be undertaken by the Courttowards the realisation of substantive equality is to determinewhether the provision contributes to the subordination of adisadvantaged group of individuals. The disadvantage must beaddressed not by treating woman as ‘weak’ but by construingher entitlement to an equal citizenship. The former legitimizesBpatronising attitudes towards women. The latter links true equalityto the realisation of dignity. The focus of such an approach is notsimply on equal treatment under the law, but rather on the realimpact of the legislation. Thus, Section 497 has to beexamined in the light of existing social structures which enforceCthe position of woman as an unequal participant in marriage.[Para 38][899-A-C]

20. From joint reading of Section 497 of the Indian PenalCode and Section 198(2) of the Code of Criminal Procedure, thefollowing propositions emerge: Sexual relations by marriedDwoman with another man outside her marriage without the consentof her husband is criminalized; In an ‘adulterous relationship’,the man is punished for adultery, while the woman is not (even asan abettor); Sexual relations by married man with an unmarriedwoman are not criminalized; Section 497 accords primacy to theconsent of the husband to determine whether criminality isEattached to the man who has consensual sexual relations withthe spouse of the former. Consent or willingness of the woman isirrelevant to the offence; man who has sexual relations with thespouse of another man is relieved of the offence only if her spousehas consented or, even connived; and Section 497, IPC, readFwith Section 198, Cr.PC, gives the man the sole right to lodge acomplaint and precludes woman from initiating criminalproceedings. [Para 40][900-B-F]

21. The operation of Section 497, by definition, is confinedto the sexual relations of woman outside her marriage. manGwho has sexual intercourse with married woman without theconsent or connivance of her husband, is liable to be prosecutedunder the Section. However, married man may engage in sexualrelations outside marriage with single woman without anyrepercussion in criminal law. Though granted immunity fromprosecution, woman is forced to consider the prospect of theHpenal action that will attach upon the individual with whom she

engages in sexual act. To ensure the fidelity of his spouse, theman is given the power to invoke the criminal sanction of theState. In effect, her spouse is empowered to curtail her sexualagency. The consent of the husband serves as the key to theexercise of the sexual agency of his spouse. That the marriedwoman is in consensual relationship, is of no consequence tothe possible prosecution. [Para 41][900-G-H; 901-A]

22. The effect of Section 497 is to allow the sexual agencyof married woman to be wholly dependent on the consent orconnivance of her husband. Though Section 497 does not punisha woman engaging in adultery as an abettor, married man and amarried woman are placed on different pedestals in respect totheir actions. The effect of Section 497 IPC, despite grantingimmunity from prosecution to the married woman, is to attach anotion of wrongdoing to the exercise of her sexual agency. Despiteexempting her from prosecution, the exercise of her sexual agencyis contingent on the consent or connivance of the husband. Ahusband is considered an aggrieved party by the law if his wifeengages in sexual intercourse with another man, but the wife isnot, if her husband does the same. Viewed from this angle, Section497 IPC discriminates between married man and marriedwoman to her detriment on the ground of sex. This kind ofdiscrimination is prohibited by the non-discrimination guaranteein Article 15 of the Constitution. Section 497 IPC alsoplaces woman within marriage and the man with whom sheshares sexual relationship outside marriage on different footing.[Para 41][902-D-E]

23. Underlying Section 497 IPC is gender stereotype thatthe infidelity of men is normal, but that of woman isimpermissible. In condemning the sexual agency of the woman,only the husband, as the ‘aggrieved’ party is given the right toinitiate prosecution. The proceedings once initiated, would begeared against the person who committed an act of ‘theft’ or‘trespass’ upon his spouse. Sexual relations by man with anotherman’s wife is therefore considered as theft of the husband’sproperty. Ensuring man’s control over the sexuality of his wifewas the true purpose of Section 497 IPC. [Para 44][902-D-E]

24. That woman, by marriage, consents in advance tosexual relations with her husband or to refrain from sexual

CDE

Arelations outside marriage without the permission of her husbandis offensive to the values of liberty and dignity. Such notion hasno place in the constitutional order. Sexual autonomy constitutesan inviolable core of the dignity of every individual. At the heartof the constitutional rights guaranteed to every individual is aprimacy of choice and the freedom to determine one’s actions.BCurtailing the sexual autonomy of woman or presuming thelack of consent once she enters marriage is antithetical toconstitutional values. [Para 44][902-F-G; 903-A]

25. provision of law must not be viewed as operating inisolation from the social, political, historical and cultural contextsCin which it operates. In its operation, law “permeates and isinseparable from everyday living and knowing, and it plays animportant role in shaping (legal) consciousness.” contextualreading of the law shows that it influences social practices, andmakes “asymmetries of power seem, if not invisible, natural andDbenign”. Section 497 IPC has significant social impact on thesexual agency of women. It builds on existing gender stereotypesand bias and further perpetuates them. Cultural stereotypes aremore forgiving of man engaging in sexual relations than awoman. Women then are expected to be chaste before and faithfulduring marriage. In restricting the sexual agency of women,ESection 497 gives legal recognition to socially discriminatory andgender-based norms. Sexual relations for woman were legallyand socially permissible when it was within her marriage. Womenwho committed adultery or non-marital sex were labeled immoral,shameful, and were criminally condemned. [Para 45][903-B-D]F26. Article 15(3) encapsulates the notion of ‘protectivediscrimination’. The constitutional guarantee in Article 15(3)cannot be employed in manner that entrenches paternalisticnotions of ‘protection’. This latter view of protection only servesto place women in cage. Article 15(3) does not exist in isolation.GArticles 14 to 18, being constituents of single code on equality,supplement each other and incorporate non-discriminationprinciple. Neither Article 15(1), nor Article 15(3) allowdiscrimination against women. Discrimination which is groundedin paternalistic and patriarchal notions cannot claim the protectionof Article 15(3). In exempting women from criminal prosecution,HSection 497 implies that woman has no sexual agency and that

she was ‘seduced’ into sexual relationship. The ‘protection’afforded to women under Section 497 highlights the lack of sexualagency that the section imputes to woman. Article 15(3) whenread with the other Articles in Part III, serves as powerfulremedy to remedy the discrimination and prejudice faced bywomen for centuries. Article 15(3) as an enabling provision isintended to bring out substantive equality in the fullest sense.Dignity and autonomy are crucial to substantive equality. Hence,Article 15(3) does not protect statutory provision thatentrenches patriarchal notions in the garb of protecting women.[Para 48][905-A-G; 906-A-C]

27. The right to privacy depends on the exercise ofautonomy and agency by individuals. In situations where citizensare disabled from exercising these essential attributes, courtsmust step in to ensure that dignity is realised in the fullest sense.Familial structures cannot be regarded as private spaces whereconstitutional rights are violated. To grant immunity in situationswhen rights of individuals are in siege, is to obstruct the unfoldingvision of the Constitution. [Para 50][907-D-E]

28. Constitutional protections and freedoms permeate everyaspect of citizen’s life - the delineation of private or publicspheres become irrelevant as far as the enforcement ofconstitutional rights is concerned. Therefore, even the intimatepersonal sphere of marital relations is not exempt fromconstitutional scrutiny. The enforcement of forced female fidelityby curtailing sexual autonomy is an affront to thfundamental right to dignity and equality. In remedyinginjustices, the Court cannot shy away from delving into the‘personal’, and as consequence, the ‘public’. Itbecomes imperative for the Court to intervene whenstructures of injustice and persecution deeply entrenched inpatriarchy are destructive of constitutional freedom. But,in adjudicating on the rights of women, the Court is nottaking on paternalistic role and “granting” rights. The Court ismerely interpreting the text of the Constitution tore-state what is already set in ink-women are equalcitizens of this nation, entitled to the protections of theConstitution. Any legislation which resultsin the denial of these Constitutional guarantees towomen, cannot pass the test of constitutionality.[Paras 52 and 66][908-D-F; 918-B]

CDEFGH

[2018] 11 S.C.R.

A29. Section 497 IPC is not simply about protecting thesanctity of the marital relationship. It is all about protecting ahusband’s interest in his “exclusive access to his wife’s sexuality”.[Para 52][909-A-B]

30. Marriage as social institution has undergone changes.BPropelled by access to education and by economic and socialprogress, women have found greater freedom to assert theirchoices and preferences. The law must also reflect their statusas equals in marriage, entitled to the constitutional guaranteesof privacy and dignity. [Para 54][910-E-F]

31. Section 497 seeks the preservation of construct ofCmarriage in which female fidelity is enforced by the letter of thelaw and by the coercive authority of the State. Such conceptiongoes against the spirit of the rights-based jurisprudence of thisCourt, which seeks to protect the dignity of an individual andher “intimate personal choices”. It cannot be held that theserights cease to exist once the woman enters into marriage.D[Para 55][911-D-E]

32. In so far as two individuals engage in acts basedon consent, the law cannot intervene. Any intrusion in thisprivate sphere would amount to deprivation of autonomyand sexual agency, which every individual is imbued with.E[Para 58][913-F-G]

33. In criminalizing adultery, the legislature has imposedits imprimatur on the control by man over the sexuality of hisspouse. In doing that, the statutory provision fails to meet thetouchstone of Article 21. Section 497 deprives woman of herautonomy, dignity and privacy. It compounds the encroachmentFon her right to life and personal liberty by adopting notion ofmarriage which subverts true equality. Equality is subverted bylending the sanctions of the penal law to gender biased approachto the relationship of man and woman. The statute confoundspaternalism as an instrument for protecting marital stability. Itdefines the sanctity of marriage in terms of hierarchical orderingGwhich is skewed against the woman. The law gives unequal voicesto partners in relationship. [Para 59][914-C-D]

34. Individuals in relationship, whether within or outsidemarriage, have legitimate expectation that each will provide tothe other the same element of companionship and respect forH

choices. Respect for sexual autonomy, it must be emphasized isfounded on the equality between spouses and partners and therecognition by each of them of the dignity of the other. Controlover sexuality attaches to the human element in each individual.Marriage – whether it be sacrament or contract – does notresult in ceding of the autonomy of one spouse to another.[Para 59][914-E-F]

35. There is fundamental reason which militates againstcriminalization of adultery. Its genesis lies in the fact thatcriminalizing an act is not valid constitutional response to asexual relationship outside the fold of marriage. Adultery in thecourse of subsisting marital relationship may, and very oftendoes question the commitment of the spouse to the relationship.In many cases, sexual relationship of one of the spouses outsideof the marriage may lead to the end of the marital relationship.But in other cases, such relationship may not be the cause butthe consequence of pre-existing disruption of the marital tie.All too often, spouses who have drifted apart irrevocably may becompelled for reasons personal to them to continue with theveneer of marriage which has ended for all intents and purposes.The interminably long delay of the law in the resolution ofmatrimonial conflicts is an aspect which cannot be ignored. Therealities of human existence are too complex to place them inclosed categories of right and wrong and to subject all that isconsidered wrong with the sanctions of penal law. Just as allconduct which is not criminal may not necessarily be ethicallyjust, all conduct which is inappropriate does not justify beingelevated to criminal wrongdoing. [Para 60][914-G-H; 915-A-C]36. The legitimate aims of the State may, it must berecognized, extend to imposing penal sanctions for certain actswithin the framework of marriage. In criminalizing certain typesof wrongdoing against women, the State intervenes to protectthe fundamental rights of every woman to live with dignity.Adultery as an offence does not fit that paradigm. In criminalizingcertain acts, Section 497 has proceeded on hypothesis which isdeeply offensive to the dignity of women. It is grounded inpaternalism, solicitous of patriarchal values and subjugates thewoman to position where the law disregards her sexuality. The

DEF

Asexuality of woman is part of her core. Neither the state nor theinstitution of marriage can disparage it. [Para 61][915-E-F; G-H;916-A-B]

37. To construe Section 497 in vacuum (as did *SowmithriVishnu case ) or in formalistic terms (as did *Revathi case) is aBrefusal to recognise and address the subjugation that women havesuffered as consequence of the patriarchal order. Section 497is denial of substantive equality in that it re-inforces the notionthat women are unequal participants in marriage; incapable offreely consenting to sexual act in legal order which regardsthem as the sexual property of their spouse. [Para 65][917-E-F]

38. Criminal law must be in consonance with constitutionalmorality. The law on adultery enforces construct of marriagewhere one partner is to cede her sexual autonomy to the other.Being antithetical to the constitutional guarantees of liberty,dignity and equality, Section 497 does not pass constitutionalDmuster. [Para 67][918-C-D]

39. Section 497 lacks an adequately determining principleto criminalize consensual sexual activity and is manifestlyarbitrary. Section 497 is denial of substantive equality as itperpetuates the subordinate status ascribed to women in marriageEand society. Section 497 violates Article 14 of the Constitution;Section 497 is based on gender stereotypes about the role ofwomen and violates the non-discrimination principle embodiedin Article 15 of the Constitution; Section 497 is denial of theconstitutional guarantees of dignity, liberty, privacy and sexualFautonomy which are intrinsic to Article 21 of the Constitution.Section 497 is unconstitutional. [Para 67][918-D-F]

Shayara Bano v Union of India (2017) 9 SCC 1 : [2017]7 SCR 797 – followed.

P Royappa v State of Tamil Nadu (1974) 4 SCC 3 :G[1974] 2 SCR 348; Navtej Singh Johar v Union ofIndia (2018) 1 SCC 791 ;Anuj Garg v Hotel Associationof India (2008) 3 SCC 1 : [2007] 12 SCR 991;Government of P v P Vijayakumar (1995) 4 SCC520 : [1995] 1 Suppl. SCR 462; Independent Thoughtv Union of India (2017) 10 SCC 800; K S Puttaswamy

v Union of India (2017) 10 SCC 1 : [2017] 10 SCR569 – relied on.

*Sowmithri Vishnu v. Union of India 1985 Supp SCC137:[1985] Suppl. SCR 741;**V Revathi v Union ofIndia (1988) 2 SCC 72 : [1988] 3 SCR 73 – overruled.

Yusuf Abdul Aziz v State of Bombay [1954] SCR 930;Union of India v Elphinstone Spinning and WeavingCo. Ltd (2001) 4 SCC 139 : [2001] 1 SCR 221 –referred to.

R v Mawgridge (1707) Kel. 119; Law Advocacy forWomen in Uganda v. Attorney General of Uganda, (2007)UGCC 1 (5 April, 2007); DE v RH, [2015] ZACC 18;Thornburgh v. American College of Obstetricians andGynaecologists, 476 U.S. 747 (1986); DE v RH [2015]ZACC 18; Cleveland Board of Education v. LaFleur, 414U.S. 623 (1973); Carey, v. Population Serv. Int’l, 431U.S. 678; Roberts v. United States Jaycees, 468 U.S. 609,618 (1984); Thornburgh v. American College ofObstetricians and Gynaecologists, 476 U.S. 747 (1986);Eisenstadt v. Baird , 405 U.S. 438, 457 (1972) – referredto.Ratna Kapur and Brenda Cossman, Subversive Sites:Feminist Engagements with Law in India, SagePublications (1996); Patricia Williams, The Alchemy of Raceand Rights, Cambridge: Harvard University Press (1991);Gayatri Spivak, The Post Colonial Critic: Interviews,Strategies, Dialogies, Routledge (1990); NathanielHawthorne, The Scarlet Letter, Bantam Books (1850), atpage 59; David Turner, Adultery in The OxfordEncyclopedia of Women in World History (2008); JamesA. Brundage, Law, Sex, and Christian Society inMedieval Europe, at page 10; Faramerz Dabhoiwala, TheOrigins of Sex: History of the First Sexual Revolution(2012), at page 5; Vern Bullough, Medieval Concepts ofAdultery, at page 7; The Oxford Encyclopaedia of Womenin World History, (Bonnie Smith ed.), Oxford; MartinSiegel, For Better or for Worse: Adultery, Crime & the

Constitution, Vol. 30, Journal of Family Law (1991), atpage 46; James A. Brundage, Law, Sex, and ChristianSociety in Medieval Europe, at page 27; Jeremy D.Weinstein, Adultery, Law, and the State: History, Vol.38, Hastings Law Journal (1986), at page 202; R. Huebner,A History of Germanic Private Law (F. Philbrick trans.1918); James R. Mellow, Hawthorne’s Divided Genius, TheWilson Quarterly (1982); Mary Beth Norton, FoundingMothers and Fathers: Gendered Power and the Formingof American Society (1996); Keith Thomas, The Puritansand Adultery: The Act of 1650 Reconsidered, in Puritansand Revolutionaries: Essays in Seventeenth-CenturyHistory Presented to Christopher Hill (DonaldPennington, Keith Thomas, eds.); Charles E. Torcia,Wharton’s Criminal Law, Section 218, (1994) at page 528;J. E. Loftis, Congreve’s Way of the World and PopularCriminal Literature, Studies in English Literature, 1500– 1900 36(3) (1996), at page 293; Joanne Bailey, UnquietLives: Marriage and Marriage Breakdown in England,1660–1800 (2009), at page 143; Blackstone’s Commentarieson the Laws of England, Book IV (1778); WilliamBlackstone, Commentaries on the Laws of England. Vol.I (1765), at pages 442- 445; Vera Bergelson, RethinkingRape-By-Fraud in Legal Perspectives on State Power:Consent and Control (Chris Ashford, Alan Reed andNicola Wake, eds.) (2016), at page 161; Abhinav Sekhri,The Good, The Bad, And The Adulterous: Criminal LawAnd Adultery In India, Socio-Legal Review (2016), atpage 52; Macaulay’s Draft Penal Code (1837), Note Q;Second Report on the Indian Penal Code (1847), at pages134-35, cited from, Law Commission of India, Forty-secondReport: Indian Penal Code, at page 365; Penal Codeprepared by The Indian Law Commissioners (1838), TheSecond Report on the Indian Penal Code, at page 74;Law Commission of India, 42nd Report: Indian PenalCode (1971), at page 326; Report of the Committee onReforms of Criminal Justice System (2003), at page 190;Brenda Cossman and Ratna Kapur, Subversive Sites:Feminist Engagements with Law in India (1996);Katherine T. Bartlett, Feminist Legal Methods, HarvardLaw Review (1990); U N Working Group on Women’sHuman Rights: Report (18 October, 201; Reuters:‘Uganda scraps “sexist” adultery law’, (April 5, 2007);Martin J. Siegel, For Better or For Worse: Adultery, Crime& the Constitution, Journal of Family Law, Vol.30, (1991)45; Deborah Rhode, Adultery: Infidelity and the Law,(Harvard University Press, 2016); Iris Marion Young,Justice and the Politics of Difference, PrincetonUniversity Press, 1990; Kathy Lahey, Feminist Theoriesof (In)equality, in Equality and Judicial Nuetrality(S.Martin and K.Mahoney (eds.) (1987); Ratna Kapur OnWoman, Equality and the Constitution: Through theLooking Glass of Feminism in Gender and Politics inIndia (Nivedita Menon ed.) (1993); Maureen Maloney, AnAnalysis of Direct Taxes in India: Feminist Perspective,Journal of the Indian Law Institute (1988); Catherine AMackinnon, Sex equality under the Constitution of India:Problems, prospects, and ‘personal laws’, OxfordUniversity Press and New York University School of Law(2006); Phyllis Coleman, Who’s Been Sleeping in My Bed?You and Me, and the State Makes Three, Vol. 24, IndianLaw Review (1991); Women’s Work, Men’s Property: TheOrigins of Gender and Class (S Coontz and P Hendersoneds.) (1986); Rosemary Coombe, Is There Cultural Studiesof Law?, Companion to Cultural Studies, Toby Miller(ed.), Oxford, (2001); Austin Sarat, Jonathan Simon, BeyondLegal Realism?: Cultural Analysis, Cultural Studies, andthe Situation of Legal Scholarship, Yale Journal of Law& the Humanities, (2001); Charles Jean Marie Letorneau,The Evolution of Marriage (2011); Nandita Haksar,Dominance, Suppression and the Law in Women andthe Law: Contemporary Problems (Lotika Sarkar and B.Sivaramayya eds.), Vikas Publishing House (1994); NiveditaMenon, Seeing like Feminist, Zubaan Books (2012) atpage 35 – referred to.

Per Indu Malhotra, J. (Concurring)

1.1 Section 497 of Penal Code (IPC) is pre-constitutionallaw which was enacted in 1860. There would be no

Apresumption of constitutionality in pre-constitutional law (likeSection 497) framed by foreign legislature. The provision wouldhave to be tested on the anvil of Part III of the Constitution.[Para 10][942-C-D]

1.2 Section 497 of the IPC it is placed under Chapter XX ofB“Offences Relating to Marriage”. The provision of Section 497 isreplete with anomalies and incongruities, such as: Under Section497, it is only the male-paramour who is punishable for the offenceof adultery. The woman who is pari delicto with the adulterousmale, is not punishable, even as an ‘abettor’. The adulterouswoman is excluded solely on the basis of gender, and cannot beCprosecuted for adultery. The Section only gives the right toprosecute, to the husband of the adulterous wife. On the otherhand, the wife of the adulterous man, has no similar right toprosecute her husband or his paramour. Section 497 read withSection 198(2) of Cr.P.C. only empowers the aggrieved husband,of married wife who has entered into the adulterous relationshipDto initiate proceedings for the offence of adultery. The act of amarried man engaging in sexual intercourse with an unmarriedor divorced woman, does not constitute ‘adultery’ under Section497. If the adulterous relationship between man and marriedwoman, takes place with the consent and connivance of herhusband, it would not constitute the offence of adultery.EThe anomalies and inconsistencies in Section 497 asstated above, would render the provision liable to be struckdown on the ground of it being arbitrary and discriminatory.[Para 11][942-D-G; 943-A-B]

Pritchard v. Pritchard and Sims [1966] 3 All E.R. 601;FOliverson v. West Valley City 875 F. Supp. 1465; Hobbsv. Smith No. 15 CVS 5646 (2017) [Superior Court ofNorth Carolina); Lawrence v. Texas 539 US 558 (2003);DE v. RH (594/2013) [2014] ZASCA 133 (25September 2014); Green v. Fitzgerald 1914 AD 88 –referred to.G

Outhwaite, R.B. (2007). The Rise and Fall of the EnglishEcclesiastical Courts, 1500–1860; Cambridge, UK:Cambridge University Press; Fernandez, Angela “TappingReeve, Nathan Dane, and James Kent: Three Fading

Federalists on Marital Unity; Married Women and theLaw: 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; Blackstone’sCommentaries on the Laws of England, Books III & IV(8[th] Edn.), 1778; Bracton: De Legibus Et ConsuetudinibusAngliæ (Bracton on the Laws and Customs of Englandattributed to Henry of Bratton, c. 1210-1268) Vol III, pg.115; “Out of his shadow: The long struggle of wivesunder English Law” The High Sheriff of Oxfordshire’sAnnual Law Lecture given by Lord Wilson on 9 October2012; Uma Chakravarti, Gendering Caste Through aFeminist Lens, STREE Publications (2003); ‘A Penal Codeprepared by The Indian Law Commissioners, (1838),Notes of Lord Thomas Babington Macaulay, Note Q; APenal Code prepared by The Indian Law Commissioners,(1838), The Second Report on the Indian Penal Code;Report of the Committee on Reforms of Criminal JusticeSystem, Government of India, Ministry of Home Affairs,chaired by Justice V.S. Malimath, (2003); Illinois CriminalCode, 720 ILCS 5/11-35, Adultery; Martin Siegel, For Betteror for Worse: Adultery, Crime & the Constitution, 30Journal Of Family Law 45, 51-52 (1991); H. Meyers,“Revision of Criminal Code of Japan” Washington LawReview & State Bar Journal, Vol. 25, (1950) at pp. 104-134; Anayasa Mahkemesi, 1996/15, 1996/34 (Sept. 23,1996); Adultery Case, 27-1 (A) KCCR 20, February 26,2015; – referred to.

2.1 The constitutional validity of section 497 has to be testedon the anvil of Article 14 of the Constitution. Any legislationwhich treats similarly situated persons unequally, or discriminatesbetween persons on the basis of sex alone, is liable to be struckdown as being violative of Articles 14 and 15 of the Constitution,which form the pillars against the vice of arbitrariness anddiscrimination. [Para 12.1][943-C-D]

2.2 Article 14 forbids class legislation; however, it doesnot forbid reasonable classification. reasonable classification is

Apermissible if two conditions are satisfied: i.e. The classificationis made on the basis of an ‘intelligible differentia’ whichdistinguishes persons or things that are grouped together, andseparates them from the rest of the group; and the said intelligibledifferentia must have rational nexus with the object sought tobe achieved by the legal provision. [Para 12.2][943-D-F]

2.3 The discriminatory provisions in Section 497 have tobe considered with reference to the classification made. Theclassification must have some rational basis or nexus with theobject sought to be achieved. With respect to the offence ofadultery committed by two consenting adults, there ought not toCbe any discrimination on the basis of sex alone since it hasno rational nexus with the object sought to be achieved.[Para 12.2][943-F-G; 944-A]

E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 :

[2004 ] 5 Suppl. SCR 972 – relied on.

2.4 Section 497 of IPC makes two classifications: The firstclassification is based on who has the right to prosecute: It isonly the husband of the married woman who indulges in adultery,is considered to be an aggrieved person given the right toprosecute for the offence of adultery. Conversely, marriedEwoman who is the wife of the adulterous man, has no right toprosecute either her husband, or his paramour.The secondclassification is based on who can be prosecuted. It is only theadulterous man who can be prosecuted for committing adultery,and not the adulterous woman, even though the relationship isconsensual; the adulterous woman is not even considered to beFan “abettor” to the offence. The aforesaid classifications werebased on the historical context in 1860 when the IPC was enacted.At that point of time, women had no rights independent of theirhusbands, and were treated as chattel or ‘property’ of theirhusbands. Hence, the offence of adultery was treated as an injuryto the husband, since it was considered to be ‘theft’ of hisGproperty, for which he could proceed to prosecute the offender.The said classification is no longer relevant or valid, and cannotwithstand the test of Article 14, and hence is liable to be struckdown on this ground alone. [Para 12.2][944-A-F]

2.5 law which deprives women of the right to prosecute,His not gender-neutral. Under Section 497, the wife of the

adulterous male, cannot prosecute her husband for maritalinfidelity. This provision is therefore ex facie discriminatoryagainst women, and violative of Article 14. Section 497 as it standstoday, cannot hide in the shadows against the discerning light ofArticle 14 which irradiates anything which is unreasonable,discriminatory, and arbitrary. [Para 12.3][944-G-H]

3.1 law which could have been justified at the time of itsenactment with the passage of time may become out-dated anddiscriminatory with the evolution of society and changedcircumstances. What may have once been perfectly validlegislation meant to protect women in the historical backgroundin which it was framed, with the passage of time of over centuryand half, may become obsolete and archaic. provisionpreviously not held to be unconstitutional, can be rendered so bylater developments in society, including gender equality.[Para 13][945-A-B]

Motor General Traders v. State of Andhra Pradesh,(1984) 1 SCC 222 : [1984] 1 SCR 594; Ratan Arya v.State of Tamil Nadu, (1986) 3 SCC 385 : [1986] 2 SCR596; John Vallamattom v. Union of India, (2003) 6 SCC611 : [2003] 1 Suppl. SCR 638 – relied on.

‘A Penal Code prepared by the Indian LawCommissioners, (1838), Notes of Lord ThomasBabington Macaulay, Note Q – referred to.

3.2 Section 497 of IPC was framed in the historical contextthat the infidelity of the wife should not be punished because ofthe plight of women in this country during the 1860s. Womenwere married while they were still children, and often neglectedwhile still young, sharing the attention of husband with severalrivals. This situation is not true 155 years after the provisionwas framed. With the passage of time, education, developmentin civil-political rights and socio-economic conditions, the situationhas undergone sea change. The historical background in whichSection 497 was framed, is no longer relevant in contemporarysociety. [Para 13][945-C-D]

3.3 It would be unrealistic to proceed on the basis thateven in consensual sexual relationship, married woman, who

Aknowingly and voluntarily enters into sexual relationship withanother married man, is ‘victim’, and the male offender is the‘seducer’. Section 497 fails to consider both men and women asequally autonomous individuals in society. [Para 13][945-E]

Anuj Garg v Hotel Association of India (2008) 3 SCCB1 : [ 2007] 12 SCR 991 – relied on.

3.4 The time when wives were invisible to the law, andlived in the shadows of their husbands, has long since gone by. Alegislation that perpetuates such stereo-types in relationships,and institutionalises discrimination is clear violation of theCfundamental rights guaranteed by Part III of the Constitution.There is therefore, no justification for continuance of Section 497of the IPC as framed in 1860, to remain on the statute book.[Para 13][946-E-F]

4. Article 15(3) of the Constitution is an enabling provisionwhich permits the State to frame beneficial legislation in favourDof women and children, to protect and uplift this class of citizens.Section 497 is penal provision for the offence of adultery, an actwhich is committed consensually between two adults who havestrayed out of the marital bond. Such provision cannot beconsidered to be beneficial legislation covered by Article 15(3)of the Constitution. The true purpose of affirmative action is toEuplift women and empower them in socio-economic spheres. Alegislation which takes away the rights of women to prosecutecannot be termed as ‘beneficial legislation’. The purpose of Article15(3) is to further socio-economic equality of women. It permitsspecial legislation for special classes. However, Article 15(3)Fcannot operate as cover for exemption from an offencehaving penal consequences. Section which perpetuatesoppression of women is unsustainable in law, andcannot take cover under the guise of protective discrimination.[Para 14][946-G-H; 947-A, D-E]

Thota Sesharathamma and Anr. v. Thota ManikyammaG(Dead) by LRs. and Ors. (1991) 4 SCC 312 – relied on.

5.1 Right to privacy under Article 21 would include the rightof two adults to enter into sexual relationship outside marriage.The right to privacy and personal liberty is, however, not anabsolute one; it is subject to reasonable restrictions whenHlegitimate public interest is involved. [Para 15][947-F]

5.2 An invasion of privacy u/Art. 21, by the State must bejustified on the basis of law that is reasonable and valid. Such aninvasion must meet three-fold requirement: (i) legality, whichpostulates the existence of law; (ii) need, defined in terms of alegitimate State interest, and (iii) proportionality, which ensuresa rational nexus between the object and the meansadopted. Section 497 as it stands today, fails to meet thethree-fold requirement, and must therefore be struck down.[Para 15][948-A-B]

K S Puttaswamy v Union of India (2017) 10 SCC 1 :

[2017] 10 SCR 569 – relied on.

6.1 Criminal sanction may be justified where there is publicelement in the wrong, such as offences against State security,and the like. These are public wrongs where the victim is not theindividual, but the community as whole. Adultery undoubtedlyis moral wrong qua the spouse and the family. The element ofpublic censure, visiting the delinquent with penal consequences,and overriding individual rights, would be justified only when thesociety is directly impacted by such conduct. In fact, muchstronger justification is required where an offence is punishablewith imprisonment. The State must follow the minimalist approachin the criminalization of offences, keeping in view the respect forthe autonomy of the individual to make his/her personal choices.[Para 17][950-A-D]6.2 The right to live with dignity includes the right not tobe subjected to public censure and punishment by the Stateexcept where absolutely necessary. In order to determine whatconduct requires State interference through criminal sanction,the State must consider whether the civil remedy will servethe purpose. Where civil remedy for wrongful act issufficient, it may not warrant criminal sanction by the State.[Para 17][950-D-E]

‘Principles of Criminal Law’ by Andrew Ashworth andJeremy Horder Oxford University Press, (7[th] Edn.)May 2013; Mill, John S., Chapter I: Introductory, OnLiberty, Published London: Longman, Roberts, & GreenCo. 1869, 4[th] Edn.; P Simester and Andreas von Hirsch,Crimes, Harms, And Wrongs: On The Principles Of

CDE

ACriminalisation, Oxford: Hart Publishing (2011) –referred to.

7. Therefore, Section 497 is struck down asunconstitutional being violative of Articles 14, 15 and 21 of theConstitution. Section 198(2) of the Cr.P.C. which contains theBprocedure for prosecution under Chapter XX of the IPC shall beunconstitutional only to the extent that it is applicable to theoffence of Adultery under Section 497 IPC. [Para 18][950-E-F]Shafin Jahan v. Asokan K.M. & Ors. 2018 SCC OnlineSC 343; K.S. Puttaswamy v Union of India (2017) 10CSCC 1; E.V. Chinnaiah v. State of A.P., (2005) 1 SCC394 : [2004 ] 5 Suppl. SCR 972; Thota Sesharathammaand Anr. v. Thota Manikyamma (Dead) by Lrs. And Ors.(1991) 4 SCC 312 – relied on.

Sowmithri Vishnu v. Union of India & Anr. (1985) SuppDSCC 137 : [1985] Suppl. SCR 741; V. Revathi v Unionof India (1988) 2 SCC 72 : [1988] 3 SCR 73 ; W.Kalyani v. State (2012) 1 SCC 358 – overruled.

Yusuf Abdul Aziz v State of Bombay [1954] SCR 930 –referred to.

ECase Law Reference

In the Judgment of Dipak Misra, CJI:

JOSEPH SHINE v. UNION OF INDIA

CRIMINAL ORIGINAL JURISDICTION : Writ Petition(Criminal) No. 194 OF 2017

Under Article 32 of the Constitution of India.

Pinky Anand, ASG, Ms. Meenakshi Arora, Sr. Adv., KaleeswaramRaj, Ms. Thulasi K. Raj, Ms. Maitreyi Hegde, Suvidutt M. S., BalenduShekhar, Ms. Madhavi Diwan, Ms. Saudamini Sharma, Ms. SnidhaMehra, Sumit Teterwal, Hemant Arya, Ms. Kirti Dua, R. Balasubramnian,Sachin Sharma, Aarti Sharma, B. V. Balaram Das, Rahul Narayan,Ms. Liz Mathew, Bhabna Das, Navneet R., Nishant Jethra, AbhishekAanand Rai (For Dr. Sushil Balwada), Sunil Fernandes, Ms. Tripti Tandon,Ms. Nupur Kumar, Ms. Anju Thomas, Ms. Priyansha Sharma,Ms. Aanchal Singh, Suraj Sanap, Ms. Priyam Lizmary, Mrs. Abha Singh,Munawar Naseem, Ms. Palak Mishra, Ms. Prabjot Hora, Dhiraj A. Philip,K. Parmeshwar, Ms. Jayena Kuthari, Ms. Anindita Pujari, Ms. KavitaBhardwaj, Ms. Aarti Kumar, Advs. for the appearing parties.

The Judgments of the Court were delivered by

DIPAK MISRA, CJI (For himself and A.M. Khanwilkar, J.)

1. The beauty of the Indian Constitution is that it includes ‘I’ ‘you’and ‘we’. Such magnificent, compassionate and monumental documentembodies emphatic inclusiveness which has been further nurtured byjudicial sensitivity when it has developed the concept of golden triangleof fundamental rights. If we have to apply the parameters of afundamental right, it is an expression of judicial sensibility which furtherenhances the beauty of the Constitution as conceived of. In such asituation, the essentiality of the rights of women gets the real requisitespace in the living room of individual dignity rather than the space in anannexe to the main building. That is the manifestation of concernedsensitivity. Individual dignity has sanctified realm in civilized society.The civility of civilization earns warmth and respect when it respectsmore the individuality of woman. The said concept gets further accentwhen woman is treated with the real spirit of equality with man. Anysystem treating woman with indignity, inequity and inequality ordiscrimination invites the wrath of the Constitution. Any provision thatmight have, few decades back, got the stamp of serene approval mayhave to meet its epitaph with the efflux of time and growing constitutionalprecepts and progressive perception. woman cannot be asked to thinkas man or as how the society desires. Such thought is abominable,for it slaughters her core identity. And, it is time to say that husband isnot the master. Equality is the governing parameter. All historical

DEF

Aperceptions should evaporate and their obituaries be written. It is advisableto remember what John Stuart Mill had observed:-

“The legal subordination of one sex to another – is wrong initself, and now one of the chief hindrances to humanimprovement; and that it ought to be replaced by system ofBperfect equality, admitting no power and privilege on the oneside, nor disability on the other.”[1]

We are commencing with the aforesaid prefatory note as we areadverting to the constitutional validity of Section 497 of the Indian PenalCode (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).C

2. At this juncture, it is necessary to state that though there isnecessity of certainty of law, yet with the societal changes and more so,when the rights are expanded by the Court in respect of certain aspectshaving regard to the reflective perception of the organic and livingConstitution, it is not apposite to have an inflexible stand on the foundationDthat the concept of certainty of law should be allowed to prevail andgovern. The progression in law and the perceptual shift compels thepresent to have penetrating look to the past.3. When we say so, we may not be understood that precedentsare not to be treated as such adn that in the excuse of perceptual shift,Ethe binding nature of precedent should not be allowed to retain its statusor allowed to be diluted. When constitutional court faces such achallenge, namely, to be detained by precedent or to grow out of thesame because of the normative changes that have occurred in the otherarenas of law and the obtaining precedent does not cohesively fit intothe same, the concept of cohesive adjustment has to be in accord withFthe growing legal interpretation and the analysis has to be different, moreso, where the emerging concept recognises particular right to be plantedin the compartment of fundamental right, such as Articles 14 and 21 ofthe Constitution. In such backdrop, when the constitutionality of aprovision is assailed, the Court is compelled to have keen scrutiny ofGthe provision in the context of developed and progressive interpretation.A constitutional court cannot remain entrenched in precedent, for thecontroversy relates to the lives of human beings who transcendentallygrow. It can be announced with certitude that transformativeconstitutionalism asserts itself every moment and asserts itself to have

H1 On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869)

its space. It is abhorrent to any kind of regressive approach. The wholething can be viewed from another perspective. What might be acceptableat one point of time may melt into total insignificance at another point oftime. However, it is worthy to note that the change perceived should notbe in sphere of fancy or individual fascination, but should be foundedon the solid bedrock of change that the society has perceived, the spheresin which the legislature has responded and the rights that have beenaccentuated by the constitutional courts. To explicate, despite conferringmany right on women within the parameters of progressivejurisprudence and expansive constitutional vision, the Court cannotconceive of women still being treated as property of men, and secondly,where the delicate relationship between husband and wife does notremain so, it is seemingly implausible to allow criminal offence to enterand make third party culpable.

4. We may presently state the nature of the lis.

5. The instant writ petition has been filed under Article 32 of theConstitution of India challenging the validity of Section 497 IPC. three-Judge Bench, on the first occasion, taking note of the authorities in YusufAbdul Aziz v. State of Bombay[2], Sowmithri Vishnu v. Union of Indiaand another[3], V. Revathi v. Union of India and others[4] and W.Kalyani v. State through Inspector of Police and another[5] andappreciating the submissions advanced by the learned counsel for thepetitioner, felt the necessity to have re-look at the constitutionality ofthe provision. At that juncture, the Court noted that:-

“Prima facie, on perusal of Section 497 of the Indian PenalCode, we find that it grants relief to the wife by treating her as avictim. It is also worthy to note that when an offence is committedby both of them, one is liable for the criminal offence but theother is absolved. It seems to be based on societal presumption.Ordinarily, the criminal law proceeds on gender neutrality but inthis provision, as we perceive, the said concept is absent. Thatapart, it is to be seen when there is conferment of any affirmativeright on women, can it go to the extent of treating them as thevictim, in all circumstances, to the peril of the husband. Quite

2 1954 SCR 930 : AIR 1954 SC 321

3 (1985)Supp SCC 137 : AIR 1985 SC 1618

4 (1988)2 SCC 72

5 (2012) 1 SCC 358

Aapart from that, it is perceivable from the language employed inthe Section that the fulcrum of the offence is destroyed once theconsent or the connivance of the husband is established. Viewedfrom the said scenario, the provision really creates dent on theindividual independent identity of woman when the emphasisis laid on the connivance or the consent of the husband. ThisBtantamounts to subordination of woman where the Constitutionconfers equal status. time has come when the society mustrealise that woman is equal to man in every field. Thisprovision, prima facie, appears to be quite archaic. When thesociety progresses and the rights are conferred, the newCgeneration of thoughts spring, and that is why, we are inclined toissue notice.”

That is how the matter has been placed before us.

6. At this stage, one aspect needs to be noted. At the time ofinitial hearing before the three-Judge Bench, the decision in Yusuf AbdulDAziz (supra) was cited and the cited Law Report reflected that thejudgment was delivered by four learned Judges and later on, it wasnoticed, as is reflectible from the Supreme Court Reports, that the decisionwas rendered by Constitution Bench comprising of five Judges of thisCourt.E

7. The said factual discovery will not detain us any further. InYusuf Abdul Aziz (supra), the Court was dealing with the controversythat had travelled to this Court while dealing with different fact situation.In the said case, the question arose whether Section 497 contravenedArticles 14 and 15 of the Constitution of India. In the said case, theFappellant was being prosecuted for adultery under Section 497 IPC. Assoon as the complaint was filed, the husband applied to the High Courtof Bombay to determine the constitutional question under Article 228 ofthe Constitution. The Constitution Bench referring to Section 497 heldthus:-

G“3. Under Section 497 the offence of adultery can only becommitted by man but in the absence of any provision to thecontrary the woman would be punishable as an abettor. The lastsentence in Section 497 prohibits this. It runs—

“In such case the wife shall not be punishable as an abettor.” Itis said that this offends Articles 14 and 15.H

JOSEPH SHINE v. UNION OF INDIA[DIPAK MISRA, CJI]

The portion of Article 15 on which the appellant relies is this:

“The State shall not discriminate against any citizen on groundsonly of ... sex.”

But what he overlooks is that that is subject to clause (3) whichruns—

“Nothing in this article shall prevent the State from making anyspecial provision for women ....”

The provision complained of is special provision and it is madefor women, therefore it is saved by clause (3).

4. It was argued that clause (3) should be confined to provisionswhich are beneficial to women and cannot be used to give thema licence to commit and abet crimes. We are unable to read anysuch restriction into the clause; nor are we able to agree that aprovision which prohibits punishment is tantamount to licenceto commit the offence of which punishment has been prohibited.

5. Article 14 is general and must be read with the other provisionswhich set out the ambit of fundamental rights. Sex is soundclassification and although there can be no discrimination ingeneral on that ground, the Constitution itself provides for specialprovisions in the case of women and children. The two articlesread together validate the impugned clause in Section 497 of theIndian Penal Code.

6. The appellant is not citizen of India. It was argued that hecould not invoke Articles 14 and 15 for that reason. The HighCourt held otherwise. It is not necessary for us to decide thisquestion in view of our decision on the other issue.”

On reading of the aforesaid passages, it is manifest that theCourt treated the provision to be special provision made for womenand, therefore, saved by clause (3) of Article 15. Thus, the Courtproceeded on the foundation of affirmative action.

8. In this context, we may refer to the observation made by theConstitution Bench in Central Board of Dawoodi Bohra Communityand another v. State of Maharashtra and another[6] while making areference to larger Bench. The said order reads thus:-

6 (2005) 2 SCC 673

“12. Having carefully considered the submissions made by thelearned Senior Counsel for the parties and having examined thelaw laid down by the Constitution Benches in the above saiddecisions, we would like to sum up the legal position in thefollowing terms:

B(1) The law laid down by this Court in decision delivered by aBench of larger strength is binding on any subsequent Bench oflesser or coequal strength.

(2) Bench of lesser quorum cannot disagree or dissent fromthe view of the law taken by Bench of larger quorum. In caseCof doubt all that the Bench of lesser quorum can do is to invitethe attention of the Chief Justice and request for the matter beingplaced for hearing before Bench of larger quorum than theBench whose decision has come up for consideration. It will beopen only for Bench of coequal strength to express an opiniondoubting the correctness of the view taken by the earlier BenchDof coequal strength, whereupon the matter may be placed forhearing before Bench consisting of quorum larger than theone which pronounced the decision laying down the law thecorrectness of which is doubted.

(3)The above rules are subject to two exceptions: (i) theEabovesaid rules do not bind the discretion of the Chief Justice inwhom vests the power of framing the roster and who can directany particular matter to be placed for hearing before any particularBench of any strength; and (ii) in spite of the rules laid downhereinabove, if the matter has already come up for hearing beforeFa Bench of larger quorum and that Bench itself feels that theview of the law taken by Bench of lesser quorum, which viewis in doubt, needs correction or reconsideration then by way ofexception (and not as rule) and for reasons given by it, it mayproceed to hear the case and examine the correctness of theprevious decision in question dispensing with the need of specificGreference or the order of the Chief Justice constituting the Benchand such listing. Such was the situation in Raghubir Singh[7] andHansoli Devi[8].”

7 Union of India and Anr. v. Raghubir Singh (dead) by Lrs. etc., (1989) 2 SCC 754

8 Union of India & Anr. v. Hansoli Devi & Ors., (2002) 7 SCC 273

JOSEPH SHINE v. UNION OF INDIA[DIPAK MISRA, CJI]

In the light of the aforesaid order, it was necessary to list thematter before Constitution Bench consisting of five Judges. As notedearlier, considering the manner in which we intend to deal with the matter,it is not necessary to refer to larger Bench.

9. Sections 497 and 498 of IPC read thus:-

“Section 497 : Adultery

Whoever has sexual intercourse with person who is and whomhe knows or has reason to believe to be the wife of another man,without the consent or connivance of that man, such sexualintercourse not amounting to the offence of rape, is guilty of theoffence of adultery, and shall be punished with imprisonment ofeither description for term which may extend to five years, orwith fine, or with both. In such case the wife shall not bepunishable as an abettor.

Section 498 : Enticing or taking away or detaining withcriminal intent married woman

Whoever takes or entices away any woman who is and whomhe knows or has reason to believe to be the wife of any otherman, from that man, or from any person having the care of heron behalf of that man, with intent that she may have illicitintercourse with any person, or conceals or detains with thatintent any such woman, shall be punished with imprisonment ofeither description for term which may extend to two years, orwith fine, or with both.”

10. Section 198 of CrPC provides for prosecution for offencesagainst marriage. Section 198 is reproduced below:-

“198. Prosecution for offences against marriage.—(1) NoCourt shall take cognizance of an offence punishable underChapter XX of the Indian Penal Code (45 of 1860) except upona complaint made by some person aggrieved by the offence:Provided that-

(a) Where such person is under the age of eighteen years or isan idiot or lunatic, or is from sickness or infirmity unable tomake complaint, or is woman who, according to the localcustoms and manners, ought not to be compelled to appear in

public, some other person may, with the leave of the Court, makea complaint on his or her behalf;

(b) where such person is the husband and he is serving in any ofthe Armed Forces of the Union under conditions which arecertified by his Commanding Officer as precluding him fromobtaining leave of absence to enable him to make complaint inperson, some other person authorised by the husband inaccordance with the provisions of sub- section (4) may make acomplaint on his behalf;

(c) where the person aggrieved by an offence punishableunder section 494 or section 495 of the Indian Penal Code (45 of1860 ) is the wife, complaint may be made on her behalf by herfather, mother, brother, sister, son or daughter or by her father’ sor mother’ s brother or sister 2, or, with the leave of the Court,by any other person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than thehusband of the woman shall be deemed to be aggrieved by anyoffence punishable under section 497 or section 498 of the saidCode: Provided that in the absence of the husband, some personwho had care of the woman on his behalf at the time when suchoffence was com- mitted may, with the leave of the Court, makea complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso tosub-section (1), the complaint is sought to be made on behalf ofa person under the age of eighteen years or of lunatic by aperson who has not been appointed or declared by competentauthority to be the guardian of the person of the minor or lunatic,and the Court is satisfied that there is guardian so appointed ordeclared, the Court shall, before granting the application for leave,cause notice to be given to such guardian and give him areasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso tosub-section (1), shall be in writing, shall be signed or otherwiseattested by the husband, shall contain statement to the effectthat he has been informed of the allegations upon which thecomplaint is to be founded, shall be countersigned by hisCommanding Officer, and shall be accompanied by certificate

signed by that Officer to the effect that leave of absence for thepurpose of making complaint in person cannot for the timebeing be granted to the husband.

(5) Any document purporting to be such an authorisation andcomplying with the provisions of sub-section (4), and anydocument purporting to be certificate required by that sub-section shall, unless the contrary is proved, be presumed to begenuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under section376 of the Indian Penal Code (45 of 1860), where such offenceconsists of sexual intercourse by man with his own wife, thewife being under 3 [eighteen years of age], if more than oneyear has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, orattempt to commit, an offence as they apply to the offence.”

11. On perusal of the aforesaid provision, it is clear that thehusband of the woman has been treated to be person aggrieved for theoffences punishable under Sections 497 and 498 of the IPC. The rest ofthe proviso carves out an exception as to who is entitled to file complaintwhen the husband is absent. It may be noted that the offence is non-cognizable.

12. The three-Judge Bench, while referring the matter, had brieflydwelled upon the impact of the provision. To appreciate the constitutionalvalidity, first, we shall deal with the earlier pronouncements and theprinciples enunciated therein and how we can have different perspectiveof such provisions. We have already referred to what has been stated inYusuf Abdul Aziz (supra).

13. In Sowmithri Vishnu (supra), petition preferred under Article32 of the Constitution challenged the validity of Section 497 IPC. We donot intend to advert to the factual matrix. It was contended before thethree-Judge Bench that Section 497 confers upon the husband the rightto prosecute the adulterer but it does not confer any right upon the wifeto prosecute the woman with whom her husband has committed adultery;that Section 497 does not confer any right on the wife to prosecute thehusband who has committed adultery with another woman; and thatSection 497 does not take in cases where the husband has sexual relationswith an unmarried woman with the result that husbands have free

Alicence under the law to have extramarital relationships with unmarriedwomen. That apart, the submission was advanced that Section 497 is aflagrant instance of ‘gender discrimination’, ‘legislative despotism’ and‘male chauvinism’. At first blush, it may appear as if it is beneficiallegislation intended to serve the interests of women but, on closerexamination, it would be found that the provision contained in the sectionBis kind of “romantic paternalism” which stems from the assumptionthat women, like chattels, are the property of men.

14. The Court referred to the submissions and held thus:-

“…..The argument really comes to this that the definition shouldCbe recast by extending the ambit of the offence of adultery sothat, both the man and the woman should be punishable for theoffence of adultery. Were such an argument permissible, severalprovisions of the penal law may have to be struck down on theground that, either in their definition or in their prescription ofpunishment, they do not go far enough. For example, an argumentDcould be advanced as to why the offence of robbery should bepunishable with imprisonment for ten years under Section 392 ofthe Penal Code but the offence of adultery should be punishablewith sentence of five years only: “Breaking matrimonial homeis no less serious crime than breaking open house.” SuchEarguments go to the policy of the law, not to its constitutionality,unless, while implementing the policy, any provision of theConstitution is infringed. We cannot accept that in defining theoffence of adultery so as to restrict the class of offenders tomen, any constitutional provision is infringed. It is commonlyaccepted that it is the man who is the seducer and not the woman.FThis position may have undergone some change over the yearsbut it is for the Legislature to consider whether Section 497 shouldbe amended appropriately so as to take note of the“transformation” which the society has undergone….”

Proceeding further, the three-Judge Bench held that the offenceGof adultery as defined in that Section can only be committed by man,not by woman. Indeed, the Section expressly provides that the wifeshall not be punishable even as an abettor. No grievance can then bemade that the Section does not allow the wife to prosecute the husbandfor adultery. The contemplation of the law, evidently, is that the wife,Hwho is involved in an illicit relationship with another man, is victim and

not the author of the crime. The offence of adultery, as defined in Section497, is considered by the Legislature as an offence against the sanctityof the matrimonial home, an act which is committed by man, as itgenerally is. Therefore, those men who defile that sanctity are broughtwithin the net of the law. In sense, the same point is reverted to; whocan prosecute whom for which offence depends, firstly, on the definitionof the offence and, secondly, upon the restrictions placed by the law ofprocedure on the right to prosecute.

15.The Court further held:-

“…..Since Section 497 does not contain provision that she mustbe impleaded as necessary party to the prosecution or that shewould be entitled to be heard, the section is said to be bad. Counselis right that Section 497 does not contain provision for hearingthe married woman with whom the accused is alleged to havecommitted adultery. But, that does not justify the proposition thatshe is not entitled to be heard at the trial. We have no doubt thatif the wife makes an application in the trial court that she shouldbe heard before finding is recorded on the question of adultery,the application would receive due consideration from the court.There is nothing, either in the substantive or the adjectival criminallaw, which bars the court from affording hearing to party,which is likely to be adversely affected, directly and immediately,by the decision of the court. In fact, instances are not unknownin criminal law where, though the prosecution is in the charge ofthe Public Prosecutor, the private complainant is given permissionto oversee the proceedings. One step more, and the wife couldbe allowed hearing before an adverse finding is recorded that,as alleged by her husband, the accused had committed adulterywith her. The right of hearing is concomitant of the principlesof natural justice, though not in all situations. That right can beread into the law in appropriate cases. Therefore, the fact that aprovision for hearing the wife is not contained in Section 497cannot render that section unconstitutional as violating Article 21.”After so stating, the Court placed reliance on Yusuf Abdul Aziz(supra) and held that the same does not offend Articles 14 and 15 of theConstitution and opined that the stability of marriages is not an ideal tobe scorned. Being of this view, the Court dismissed the petition.

A16. In V. Revathi v. Union of India and others[9], the Courtanalysed the design of the provision and ruled:-

“…..Thus the law permits neither the husband of the offendingwife to prosecute his wife nor does the law permit the wife toprosecute the offending husband for being disloyal to her. ThusBboth the husband and the wife are disabled from striking eachother with the weapon of criminal law. The petitioner wifecontends that whether or not the law permits husband toprosecute his disloyal wife, the wife cannot be lawfully disabledfrom prosecuting her disloyal husband…..”

CIt placed heavy reliance on the three-Judge Bench in SowmithriVishnu (supra) and proceeded to state that the community punishes the‘outsider’ who breaks into the matrimonial home and occasions theviolation of sanctity of the matrimonial tie by developing an illicitrelationship with one of the spouses subject to the rider that the erring‘man’ alone can be punished and not the erring woman. It further wentDon to say that it does not arm the two spouses to hit each other with theweapon of criminal law. That is why, neither the husband can prosecutethe wife and send her to jail nor can the wife prosecute the husband andsend him to jail. There is no discrimination based on sex. While theoutsider who violates the sanctity of the matrimonial home is punished, aErider has been added that if the outsider is woman, she is not punished.There is, thus, reverse discrimination in “favour” of the woman ratherthan “against” her. The law does not envisage the punishment of any ofthe spouses at the instance of each other. Thus, there is no discriminationagainst the woman insofar as she is not permitted to prosecute herhusband. husband is not permitted because the wife is not treated asFan offender in the eye of law. The wife is not permitted as Section198(1) read with Section 198(2) does not permit her to do so. In theultimate analysis, the law has meted out even-handed justice to both ofthem in the matter of prosecuting each other or securing the incarcerationof each other. Thus, no discrimination has been practised inGcircumscribing the scope of Section 198(2) CrPC and fashioning it insuch manner that the right to prosecute the adulterer is restricted tothe husband of the adulteress but has not been extended to the wife ofthe adulterer. Expressing this view, the Court held that the provision isnot vulnerable to the charge of hostile discrimination.

H9 (1988) 2 SCC 72

17. In W. Kalyani v. State Thro’ Inspector of Police andanother[10], the Court held:-

“10. The provision is currently under criticism from certainquarters for showing strong gender bias for it makes the positionof married woman almost as property of her husband. But interms of the law as it stands, it is evident from plain reading ofthe section that only man can be proceeded against and punishedfor the offence of adultery. Indeed, the section provides expresslythat the wife cannot be punished even as an abettor. Thus, themere fact that the appellant is woman makes her completelyimmune to the charge of adultery and she cannot be proceededagainst for that offence.”

Be it noted, the issue of constitutional validity did not arise in thesaid case.

18. At this juncture, we think it seemly to state that we are onlygoing to deal with the constitutional validity of Section 497 IPC andSection 198 CrPC. The learned counsel for the petitioner submits thatthe provision by its very nature is arbitrary and invites the frown ofArticle 14 of the Constitution. In Shayara Bano v. Union of India andothers[11], the majority speaking through Nariman, J., ruled thus :-

“60. Hard as we tried, it is difficult to discover any ratio in thisjudgment, as one part of the judgment contradicts another part.If one particular statutory enactment is already under challenge,there is no reason why other similar enactments which werealso challenged should not have been disposed of by this Court.Quite apart from the above, it is little difficult to appreciatesuch declination in the light of Prem Chand Garg (supra). Thisjudgment, therefore, to the extent that it is contrary to at leasttwo Constitution 346 Bench decisions cannot possibly be said tobe good law.

61. It is at this point that it is necessary to see whether afundamental right has been violated by the 1937 Act insofar as itseeks to enforce Triple Talaq as rule of law in the Courts inIndia.

10 (2012) 1 SCC 358

11 (2017) 9 SCC 1

62. Article 14 of the Constitution of India is facet of equality ofstatus and opportunity spoken of in the Preamble to theConstitution. The Article naturally divides itself into two parts-(1) equality before the law, and (2) the equal protection of thelaw. Judgments of this Court have referred to the fact that theequality before law concept has been derived from the law inthe U.K., and the equal protection of the laws has been borrowedfrom the 14th Amendment to the Constitution of the United Statesof America. In revealing judgment, Subba Rao, J., dissenting,in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34further went on to state that whereas equality before law is anegative concept, the equal protection of the law has positivecontent. The early judgments of this Court referred to the“discrimination” aspect of Article 14, and evolved rule by whichsubjects could be classified. If 347 the classification was“intelligible” having regard to the object sought to be achieved, itwould pass muster under Article 14’s anti-discrimination aspect.Again, Subba Rao, J., dissenting, in Lachhman Das v. State ofPunjab, (1963) 2 SCR 353 at 395, warned that:

“50......Overemphasis on the doctrine of classification or ananxious and sustained attempt to discover some basis forclassification may gradually and imperceptibly deprive theArticle of its glorious content.”

He referred to the doctrine of classification as “subsidiary rule”evolved by courts to give practical content to the said Article.

63. In the pre-1974 era, the judgments of this Court did refer tothe “rule of law” or “positive” aspect of Article 14, theconcomitant of which is that if an action is found to be arbitraryand, therefore, unreasonable, it would negate the equal protectionof the law contained in Article 14 and would be struck down onthis ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR703, this Court held:

“In this context it is important to emphasize that the absenceof arbitrary power is the first essential of the rule of law uponwhich our whole constitutional system is based. In systemgoverned by rule of law, 348 discretion, when conferred uponexecutive authorities, must be confined within clearly defined

limits. The rule of law from this point of view means thatdecisions should be made by the application of known principlesand rules and, in general, such decisions should be predictableand the citizen should know where he is. If decision is takenwithout any principle or without any rule it is unpredictable andsuch decision is the antithesis of decision taken in accordancewith the rule of law. (See Dicey — “Law of the Constitution”— 10th Edn., Introduction cx). “Law has reached its finestmoments”, stated Douglas, J. in United States v. Wunderlick[342 US 98],

“9.....when it has freed man from the unlimited discretion ofsome ruler…. Where discretion, is absolute, man has alwayssuffered”. It is in this sense that the rule of law may be said tobe the sworn enemy of caprice. Discretion, as Lord Mansfieldstated it in classic terms in the case of John Wilkes [(1770) 4Burr. 2528 at 2539],

“.....means sound discretion guided by law. It must begoverned 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 beviolative of Article 14 of the Constitution of India.”

19. Thereafter, our learned brother referred to the authorities inState of Mysore v. S.R. Jayaram[12], Indira Nehru Gandhi v. RajNarain[13], E.P. Royappa v. State of Tamil Nadu[14], Maneka Gandhiv. Union of India[15], A.L. Kalra v. Project and Equipment Corporationof India Ltd.[16], Ajay Hasia v. Khalid Mujib Sehravardi[17], K.R.Lakshmanan v. State of T.N.[18]and two other Constitution Benchjudgments in Mithu v. State of Punjab[19] and Sunil Batra v. DelhiAdministration[20]and, eventually, came to hold thus:-

12 (1968) 1 SCR 34913 (1975) Supp SCC 114 (1974) 4 SCC 315 (1978) 1 SCC 24816 (1984) 3 SCC 31617 (1981) 1 SCC 72218 (1996) 2 SCC 22619 (1983) 2 SCC 27720 (1978) 4 SCC 494

“It is, therefore, clear from reading of even the aforesaid twoConstitution Bench judgments that Article 14 has been referredto in the context of the constitutional invalidity of statutory law toshow that such statutory law will be struck down if it is found tobe “arbitrary”.”

BAnd again:-

“.....The test of manifest arbitrariness, therefore, as laid down inthe aforesaid judgments would apply to invalidate legislation aswell as subordinate legislation under Article 14. Manifestarbitrariness, therefore, must be something done by the legislatureCcapriciously, irrationally and/or without adequate determiningprinciple. Also, when something is done which is excessive anddisproportionate, such legislation would be manifestly arbitrary.We are, therefore, of the view that arbitrariness in the sense ofmanifest arbitrariness as pointed out by us above would apply tonegate legislation as well under Article 14.”

20. We respectfully concur with the said view.

21. In Yusuf Abdul Aziz (supra), the Court understood theprotection of women as not discriminatory but as being an affirmativeprovision under clause (3) of Article 15 of the Constitution. We intend toEtake the path of expanded horizon as gender justice has been expandedby this Court.

22. We may now proceed to test the provision on the touchstoneof the aforesaid principles. On reading of the provision, it is demonstrablethat women are treated as subordinate to men inasmuch as it lays downthat when there is connivance or consent of the man, there is no offence.FThis treats the woman as chattel. It treats her as the property of manand totally subservient to the will of the master. It is reflection of thesocial dominance that was prevalent when the penal provision wasdrafted.

23. As we notice, the provision treats married woman as aproperty of the husband. It is interesting to note that Section 497 IPCdoes not bring within its purview an extra marital relationship with anunmarried woman or widow. The dictionary meaning of “adultery” isthat married person commits adultery if he has sex with woman withwhom he has not entered into wedlock. As per Black’s Law Dictionary,

JOSEPH SHINE v. UNION OF INDIA[DIPAK MISRA, CJI]

‘adultery’ is the voluntary sexual intercourse of married person with aperson other than the offender’s husband or wife. However, the provisionhas made it restricted one as consequence of which man, in certainsituations, becomes criminally liable for having committed adultery while,in other situations, he cannot be branded as person who has committedadultery so as to invite the culpability of Section 497 IPC. Section 198CrPC deals with “person aggrieved”. Sub-section (2) of Section 198treats the husband of the woman as deemed to be aggrieved by anoffence 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 whensuch offence was committed with the leave of the court. It does notconsider the wife of the adulterer as an aggrieved person. The offenceand the deeming definition of an aggrieved person, as we find, is absolutelyand manifestly arbitrary as it does not even appear to be rational and itcan be stated with emphasis that it confers licence on the husband todeal with the wife as he likes which is extremely excessive anddisproportionate. We are constrained to think so, as it does not treat awoman as an abettor but protects woman and simultaneously, it doesnot enable the wife to file any criminal prosecution against the husband.Indubitably, she can take civil action but the husband is also entitled totake civil action. However, that does not save the provision as beingmanifestly arbitrary. That is one aspect of the matter. If the entire provisionis scanned being Argus-eyed, we notice that on the one hand, it protectsa woman and on the other, it does not protect the other woman. Therationale of the provision suffers from the absence of logicality ofapproach and, therefore, we have no hesitation in saying that it suffersfrom the vice of Article 14 of the Constitution being manifestly arbitrary.

24. Presently, we shall address the issue against the backdrop ofArticle 21 of the Constitution. For the said purpose, it is necessary todevote some space with regard to the dignity of women and the conceptof gender equality.

25. In Arun Kumar Agrawal and another v. National InsuranceCompany Limited and others[21], the issue related to the criteria fordetermination of compensation payable to the dependents of womanwho died in road accident. She did not have regular income. Singhvi, J.rejected the stand relating to determination of compensation by comparinga house wife to that of house keeper or servant or an employee who

Aworks for fixed period. The learned Judge thought it unjust, unfair andinappropriate. In that context, the learned Judge stated:-

“26. In India the courts have recognised that the contributionmade by the wife to the house is invaluable and cannot becomputed in terms of money. The gratuitous services renderedBby the wife with true love and affection to the children and herhusband and managing the household affairs cannot be equatedwith the services rendered by others. wife/mother does notwork by the clock. She is in the constant attendance of the familythroughout the day and night unless she is employed and isrequired to attend the employer’s work for particular hours. SheCtakes care of all the requirements of the husband and childrenincluding cooking of food, washing of clothes, etc. She teachessmall children and provides invaluable guidance to them for theirfuture life. housekeeper or maidservant can do the householdwork, such as cooking food, washing clothes and utensils, keepingDthe house clean, etc., but she can never be substitute for awife/mother who renders selfless service to her husband andchildren.”

26. Ganguly, J., in his concurring opinion, referred to the AustralianFamily Property Law and opined that the said law had adopted verygender sensitive approach. The learned Judge reproduced:-E

“the contribution made by party to the marriage to the welfareof the family constituted by the parties to the marriage and anychildren of the marriage, including any contribution made in thecapacity of homemaker or parent.”

27. In State of Madhya Pradesh v. Madanlal[22], the Court held:-F“Dignity of woman is part of her non-perishable and immortal selfand no one should ever think of painting it in clay. There cannot be acompromise or settlement as it would be against her honour which mattersthe most. It is sacrosanct. Sometimes solace is given that the perpetratorof the crime has acceded to enter into wedlock with her which is nothingGbut putting pressure in an adroit manner; and we say with emphasis thatthe Courts are to remain absolutely away from this subterfuge to adopta soft approach to the case, for any kind of liberal approach has to beput in the compartment of spectacular error. Or to put it differently, itwould be in the realm of sanctuary of error.”

H22 (2015) 7 SCC 681

28. In Pawan Kumar v. State of Himachal Pradesh[23], the Court,dealing with the concept of equality and dignity of woman, observed:-

“47 …in civilized society eve-teasing is causing harassment towomen in educational institutions, public places, parks, railwaysstations and other public places which only go to show thatrequisite sense of respect for women has not been sociallycultivated. woman has her own space as man has. She enjoysas much equality under Article 14 of the Constitution as mandoes. The right to live with dignity as guaranteed under Article21 of the Constitution cannot be violated by indulging in obnoxiousact of eve-teasing. It affects the fundamental concept of gendersensitivity and justice and the rights of woman under Article14 of the Constitution. That apart it creates an incurable dent inthe right of woman which she has under Article 15 of theConstitution. One is compelled to think and constrained todeliberate why the women in this country cannot be allowed tolive in peace and lead life that is empowered with dignity andfreedom. It has to be kept in mind that she has right to life andentitled to love according to her choice. She has an individualchoice which has been legally recognized. It has to be sociallyrespected. No one can compel woman to love. She has theabsolute right to reject.48. In civilized society male chauvinism has no room. TheConstitution of India confers the affirmative rights on womenand the said rights are perceptible from Article 15 of theConstitution. When the right is conferred under the Constitution,it has to be understood that there is no condescendation. manshould not put his ego or, for that matter, masculinity on pedestaland abandon the concept of civility. Egoism must succumb tolaw. Equality has to be regarded as the summum bonum of theconstitutional principle in this context.”

29. Lord Keith in R v. R[24] declared:-

“marriage is in modern times regarded as partnership of equals,and no longer one in which the wife must be the subservientchattel of the husband.”

23 (2017) 7 SCC 780

24 [1991] 4 All ER 481 at p. 484

ABC

A30. Lord Denning[25] states:-

“A wife is no longer her husband’s chattel. She is beginning tobe regarded by the laws as partner in all affairs which are theircommon concern.”

31. In Shamima Farooqui v. Shahid Khan[26], the Court ruled:-B“Chivalry, perverse sense of human egotism, and clutching offeudal megalomaniac ideas or for that matter, any kind ofcondescending attitude have no room. They are bound to besent to the ancient woods, and in the new horizon people shouldproclaim their own ideas and authority.”

CAnd again:-

“Any other idea floated or any song sung in the invocation ofmale chauvinism is the proposition of an alien, total stranger -an outsider. That is the truth in essentiality.”

D32. In Voluntary Health Association of Punjab v. Union ofIndia[27], one of us (Dipak Misra, J.), in his concurring opinion, statedthat women have to be regarded as equal partners in the lives of menand 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 tofemale foeticide and it was stated thus:-E

“21. When female foeticide takes place, every woman whomothers the child must remember that she is killing her ownchild despite being mother. That is what abortion would meanin social terms. Abortion of female child in its conceptualeventuality leads to killing of woman. Law prohibits it; scripturesFforbid it; philosophy condemns it; ethics deprecate it, moralitydecries it and social science abhors it. Henrik Ibsen emphasisedon the individualism of woman. John Milton treated her to be thebest of all God’s work. In this context, it will be appropriate toquote few lines from Democracy in America by Alexis deTocqueville:G

“If I were asked … to what the singular prosperity and growingstrength of that people [Americans] ought mainly to be attributed,I should reply: To the superiority of their women.”

25 The Due Process of Law (London, Butterworths, 1980, at page 212)26 (2015) 5 SCC 705H27 (2013) 4 SCC 1

22. At this stage, I may with profit reproduce two paragraphsfrom Ajit Savant Majagvai v. State of Karnataka[28]: (SCC pp.113-14, paras 3 & 4)

“3. Social thinkers, philosophers, dramatists, poets and writershave eulogised the female species of the human race and havealways used beautiful epithets to describe her temperament andpersonality and have not deviated from that path even whilespeaking of her odd behaviour, at times. Even in sarcasm, theyhave not crossed the literary limit and have adhered to particularstandard of nobility of language. Even when member of herown species, Madame De Stael, remarked ‘I am glad that I amnot man; for then I should have to marry woman’, there waswit in it. When Shakespeare wrote, ‘Age cannot wither her; norcustom stale, her infinite variety’, there again was wit.Notwithstanding that these writers have cried hoarse for respectfor ‘woman’, notwithstanding that Schiller said ‘Honour women!They entwine and weave heavenly roses in our earthly life’ andnotwithstanding that the Mahabharata mentioned her as thesource of salvation, crime against ‘woman’ continues to rise andhas, today undoubtedly, risen to alarming proportions.4. It is unfortunate that in an age where people are describedas civilised, crime against ‘female’ is committed even whenthe child is in the womb as the ‘female’ foetus is oftendestroyed to prevent the birth of female child. If that childcomes into existence, she starts her life as daughter, thenbecomes wife and in due course, mother. She rocks thecradle to rear up her infant, bestows all her love on thechild and as the child grows in age, she gives to the child allthat she has in her own personality. She shapes the destinyand character of the child. To be cruel to such creature isunthinkable. To torment wife can only be described as themost hated and derisive act of human being.”

[Emphasis supplied]

And again:-“23. In Madhu Kishwar v. State of Bihar[29] this Court had statedthat Indian women have suffered and are suffering discriminationin silence.28 (1997) 7 SCC 11029 (1996) 5 SCC 125

“28. … Self-sacrifice and self-denial are their nobility andfortitude 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 byan author who has spoken with quite speck of sensibility:

“Dowry is an intractable disease for women, bed of arrowsfor annihilating self-respect, but without the boon of wishfuldeath.”

25. Long back, Charles Fourier had stated:

“The extension of women’s rights is the basic principle of allsocial progress.”

26. Recapitulating from the past, I may refer to certain sayingsin the Smritis which put women in an elevated position. ThisCourt in Nikku Ram case[4]had already reproduced the first lineof the shloka. The second line of the same which is alsosignificant is as follows:

Yatra tastu na pujyante sarvastatraphalah kriyah

free translation of the aforesaid is reproduced below:

“All the actions become unproductive in place, where they arenot treated with proper respect and dignity.”

27. Another wise man of the past had his own way of putting it:

Bhartr bhratr pitrijnati swasruswasuradevaraih

Bandhubhisca striyah pujyah bhusnachhadanasnaih

free translation of the aforesaid is as follows:

“The women are to be respected equally on par with husbands,brothers, fathers, relatives, in-laws and other kith and kin andwhile respecting, the women gifts like ornaments, garments, etc.should be given as token of honour.”

JOSEPH SHINE v. UNION OF INDIA[DIPAK MISRA, CJI]

28. Yet again, the sagacity got reflected in following lines:

Atulam yatra tattejah sarvadevasarirajam

Ekastham tadabhunnari vyaptalokatrayam tvisa

free translation of the aforesaid is reproduced below:

“The incomparable valour (effulgence) born from the physicalframes of all the gods, spreading the three worlds by its radianceand combining together took the form of woman.”

29. From the past, I travel to the present and respectfully noticewhat Lord Denning had to say about the equality of women andtheir role in the society:

“A woman feels as keenly, thinks as clearly, as man. She in hersphere does work as useful as man does in his. She has as muchright to her freedom — to develop her personality to the full as aman. When she marries, she does not become the husband’sservant but his equal partner. If his work is more important in lifeof the community, her’s is more important of the family. Neithercan do without the other. Neither is above the other or under theother. They are equals.”

33. In Charu Khurana and others v. Union of India andothers[30], speaking about the dignity of women, the Court held:-

“33. … Be it stated, dignity is the quintessential quality of apersonality and human frame always desires to live in themansion of dignity, for it is highly cherished value. Clause (j)has to be understood in the backdrop that India is welfareState and, therefore, it is the duty of the State to promote justice,to provide equal opportunity to all citizens and see that they arenot deprived of by reasons of economic disparity. It is also theduty of the State to frame policies so that men and women havethe right to adequate means of livelihood. It is also the duty ofthe citizen to strive towards excellence in all spheres of individualand collective activity so that the nation constantly rises to higherlevels of endeavour and achievement.”

A34. In Shakti Vahini v. Union of India and others[31], the lis wasin different context. The Court reproduced passage from Joseph J.Ellis which is also relevant for the present purpose. It reads:-

“We don’t live in world in which there exists single definitionof honour anymore, and it’s fool that hangs onto the traditionalBstandards and hopes that the world will come around him.”

35. In the said case, contention was advanced that the existenceof woman is entirely dependent on the male view of the reputation ofthe family, the community and the milieu. The Court, in that context,observed:-

“5. …The collective behaves like patriarchal monarch whichtreats the wives, sisters and daughters subordinate, even servileor self-sacrificing, persons moving in physical frame having noindividual autonomy, desire and identity. The concept of status isaccentuated by the male members of the community and senseDof masculine dominance becomes the sole governing factor ofperceptive honour.”

36. We have referred to the aforesaid as we are of the view thatthere cannot be patriarchal monarchy over the daughter or, for thatmatter, husband’s monarchy over the wife. That apart, there cannot beEa community exposition of masculine dominance.

37. Having stated about the dignity of woman, in the context ofautonomy, desire, choice and identity, it is obligatory to refer to the recentlarger Bench decision in K.S. Puttaswamy and another v. Union ofIndia and others[32] which, while laying down that privacy is facet ofArticle 21 of the Constitution, lays immense stress on the dignity of anFindividual. In the said judgment, it has been held:-

“108. Over the last four decades, our constitutional jurisprudencehas recognised the inseparable relationship between protectionof life and liberty with dignity. Dignity as constitutional valuefinds expression in the Preamble. The constitutional vision seeksGthe realisation of justice (social, economic and political); liberty(of thought, expression, belief, faith and worship); equality (as aguarantee against arbitrary treatment of individuals) and fraternity

31 (2018) 7 SCC 192H32 (2017) 10 SCC 1

(which assures life of dignity to every individual). Theseconstitutional precepts exist in unity to facilitate humane andcompassionate society. The individual is the focal point of theConstitution because it is in the realisation of individual rightsthat the collective well-being of the community is determined.Human dignity is an integral part of the Constitution. Reflectionsof dignity are found in the guarantee against arbitrariness (Article14), the lamps of freedom (Article 19) and in the right to life andpersonal liberty (Article 21).

xxxx

xxx

119. To live is to live with dignity. The draftsmen of the Constitutiondefined their vision of the society in which constitutional valueswould be attained by emphasising, among other freedoms, libertyand dignity. So fundamental is dignity that it permeates the coreof the rights guaranteed to the individual by Part III. Dignity isthe core which unites the fundamental rights because thefundamental rights seek to achieve for each individual the dignityof existence...”

xxx

“298. Privacy of the individual is an essential aspect of dignity.Dignity has both an intrinsic and instrumental value. As an intrinsicvalue, human dignity is an entitlement or constitutionallyprotected interest in itself. In its instrumental facet, dignity andfreedom are inseparably inter-twined, each being facilitativetool to achieve the other. The ability of the individual to protect azone of privacy enables the realization of the full value of lifeand liberty. Liberty has broader meaning of which privacy is asubset. All liberties may not be exercised in privacy. Yet otherscan be fulfilled only within private space. Privacy enables theindividual to retain the autonomy of the body and mind. Theautonomy of the individual is the ability to make decisions onvital matters of concern to life. Privacy has not been couched asan independent fundamental right. But that does not detract fromthe constitutional protection afforded to it, once the true natureof privacy and its relationship with those fundamental rights whichare expressly protected is understood. Privacy lies across thespectrum of protected freedoms. The guarantee of equality is

Aguarantee against arbitrary state action. It prevents the statefrom discriminating between individuals. The destruction by thestate of sanctified personal space whether of the body or ofthe mind is violative of the guarantee against arbitrary state action.Privacy of the body entitles an individual to the integrity of thephysical aspects of personhood. The intersection between one’sBmental integrity and privacy entitles the individual to freedom ofthought, the freedom to believe in what is right, and the freedomof self-determination.”

xxxxxxxxx

C“525. But most important of all is the cardinal value of fraternitywhich assures the dignity of the individual.359 The dignity of theindividual encompasses the right of the individual to develop tothe full extent of his potential. And this development can only beif an individual has autonomy over fundamental personal choicesand control over dissemination of personal information whichDmay be infringed through an unauthorized use of such information.It is clear that Article 21, more than any of the other Articles inthe fundamental rights chapter, reflects each of theseconstitutional values in full, and is to be read in consonance withthese values and with the international covenants that we haveEreferred to. In the ultimate analysis, the fundamental right ofprivacy, which has so many developing facets, can only bedeveloped on case to case basis. Depending upon the particularfacet that is relied upon, either Article 21 by itself or in conjunctionwith other fundamental rights would get attracted.”

F38. In this context, we may profitably refer to National LegalServices Authority v. Union of India and others[33] wherein A.K. Sikri, J.,in his concurring opinion, emphasizing on the concept of dignity, hasopined:-

“The basic principle of the dignity and freedom of the individualGis common to all nations, particularly those having democraticset up. Democracy requires us to respect and develop the freespirit of human being which is responsible for all progress inhuman history. Democracy is also method by which we attemptto raise the living standard of the people and to give opportunities

H33 (2014) 5 SCC 438

to every person to develop his/her personality. It is founded onpeaceful co-existence and cooperative living. If democracy isbased on the recognition of the individuality and dignity of man,as fortiori we have to recognize the right of human being tochoose his sex/gender identity which is integral his/her personalityand is one of the most basic aspect of self-determination dignityand freedom. In fact, there is growing recognition that the truemeasure of development of nation is not economic growth; it ishuman dignity.”

39. Very recently, in Common Cause (A Registered Society) v.Union of India and another[34], one of us has stated:-

“... Human dignity is beyond definition. It may at times defydescription. To some, it may seem to be in the world of abstractionand some may even perversely treat it as an attribute of egotismor accentuated eccentricity. This feeling may come from theroots of absolute cynicism. But what really matters is that lifewithout dignity is like sound that is not heard. Dignity speaks,it has its sound, it is natural and human. It is combination ofthought and feeling, and, as stated earlier, it deserves respecteven when the person is dead and described as “body”.....”

And again:-

“The concept and value of dignity requires further elaborationsince we are treating it as an inextricable facet of right to lifethat respects all human rights that person enjoys. Life isbasically self-assertion. In the life of person, conflict anddilemma are expected to be normal phenomena. Oliver WendellHolmes, in one of his addresses, quoted line from Latin poetwho had uttered the message, - Death plucks my ear and says,Live- I am coming . That is the significance of living. But whena patient really does not know if he/she is living till death visitshim/her and there is constant suffering without any hope of living,should one be allowed to wait? Should she/he be cursed to die aslife gradually ebbs out from her/his being? Should she/he livebecause of innovative medical technology or, for that matter,should he/she continue to live with the support system as peoplearound him/her think that science in its progressive invention

may bring about an innovative method of cure? To put it differently,should he/she be ¯guinea pig for some kind of experiment? Theanswer has to be an emphatic ¯Not because such futile waitingmars the pristine concept of life, corrodes 139 the essence ofdignity and erodes the fact of eventual choice which is pivotal toprivacy.”

In Mehmood Nayyar Azam v. State of Chhattisgarh and others,a two-Judge Bench held thus:-

“1...... Albert Schweitzer, highlighting on Glory of Life,pronounced with conviction and humility, “the reverence ofClife offers me my fundamental principle on morality”. Theaforesaid expression may appear to be an individualisticexpression of great personality, but, when it is understood inthe complete sense, it really denotes, in its conceptualessentiality, and connotes, in its macrocosm, the fundamentalperception of thinker about the respect that life commands.DThe reverence of life is insegragably associated with the dignityof human being who is basically divine, not servile. humanpersonality is endowed with potential infinity and it blossomswhen dignity is sustained. The sustenance of such dignity hasto be the superlative concern of every sensitive soul. TheEessence of dignity can never be treated as momentary sparkof light or, for that matter, ‘a brief candle’, or ‘a hollow bubble’.The spark of life gets more resplendent when man is treatedwith dignity sans humiliation, for every man is expected to leadan honourable life which is splendid gift of “creativeintelligence”F40. In the said judgment, A.K. Sikri, J. reproduced passage fromProfessor Upendra Baxi’s lecture in First Justice H.R. Khanna MemorialLecture which reads as follows:-

“I still need to say that the idea of dignity is metaethical one,that is it marks and maps difficult terrain of what it may meanto say being ‘human’ and remaining ‘human’, or put anotherway the relationship between ‘self’, ‘others’, and ‘society’. Inthis formulation the word ‘respect’ is the keyword: dignity isrespect for an individual person based on the principle of freedomand capacity to make choices and good or just social order is

JOSEPH SHINE v. UNION OF INDIA[DIPAK MISRA, CJI]

one which respects dignity via assuring ‘contexts’ and ‘conditions’as the ‘source of free and informed choice’. Respect for dignitythus 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 womanand the essential dignity which woman is entitled to have. There canbe no curtailment of the same. But, Section 497 IPC effectively doesthe same by creating invidious distinctions based on gender stereotypeswhich creates dent in the individual dignity of women. Besides, theemphasis on the element of connivance or consent of the husbandtantamounts to subordination of women. Therefore, we have no hesitationin holding that the same offends Article 21 of the Constitution.42. Another aspect needs to be addressed. The question we intendto pose is whether adultery should be treated as criminal offence.Even assuming that the new definition of adultery encapsules within itsscope sexual intercourse with an unmarried woman or widow, adulteryis basically associated with the institution of marriage. There is no denialof the fact that marriage is treated as social institution and regardbeing had to various aspects that social history has witnessed in thiscountry, the Parliament has always made efforts to maintain the rightsof women. For instance, Section 498-A IPC deals with husband orrelative of husband of woman subjecting her to cruelty. The Parliamenthas also brought in the Protection of Women from Domestic ViolenceAct, 2005. This enactment protects women. It also enters into thematrimonial sphere. The offences under the provisions of the saidenactment are different from the provision that has been conceived ofunder Section 497 IPC or, for that matter, concerning bringing of adulterywithin the net of criminal offence. There can be no shadow of doubtthat adultery can be ground for any kind of civil wrong includingdissolution of marriage. But the pivotal question is whether it should betreated as criminal offence. When we say so, it is not to be understoodthat there can be any kind of social licence that destroys the matrimonialhome. It is an ideal condition when the wife and husband maintain theirloyalty. We are not commenting on any kind of ideal situation but, infact, focusing on whether the act of adultery should be treated as acriminal offence. In this context, we are reminded of what EdmundBurke, famous thinker, had said, “a good legislation should be fit and

Aequitable so that it can have right to command obedience”. Burkewould like to put it in two compartments, namely, ‘equity’ and ‘utility’. Ifthe principle of Burke is properly understood, it conveys that laws andlegislations are necessary to serve and promote good life.

43. Dealing with the concept of crime, it has been stated inB“Principles of Criminal Liability”[35] thus :-

“1. Definition of crime.—There is no satisfactory definition ofcrime which will embrace the many acts and omissions whichare criminal, and which will at the same time exclude all thoseacts and omissions which are not. Ordinarily crime is wrongCwhich affects the security or well-being of the public generallyso that the public has an interest in its suppression. crime isfrequently moral wrong in that it amounts to conduct which isinimical to the general moral sense of the community. It is,however, possible to instance many crimes which exhibit neitherof the foregoing characteristics. An act may be made criminalDby Parliament simply because it is criminal process, rather thancivil, which offers the more effective means of controlling theconduct in question.”

44. In Kenny’s Outlines of Criminal Law, 19th Edn., 1966 byJ.W. Cecil Turner, it has been stated that:-E

“There is indeed no fundamental or inherent difference betweena crime and tort. Any conduct which harms an individual tosome extent harms society, since society is made up of individuals;and therefore although it is true to say of crime that is an offenceagainst society, this does not distinguish crime from tort. TheFdifference is one of degree only, and the early history of thecommon law shows how words which now suggest realdistinction began rather as symbols of emotion than as terms ofscientific classification.”

And again:-G“So long as crimes continue (as would seem inevitable) to becreated by government policy the nature of crime will elude truedefinition. Nevertheless it is broadly accurate description tosay that nearly every instance of crime presents all of the threefollowing characteristics: (1) that it is harm, brought about by

H35 Halsbury’s Laws of England, 4th Edn., Vol. 11 p.11,

human conduct, which the sovereign power in the State desiresto prevent; (2) that among the measures of prevention selectedis the threat of punishment; (3) that legal proceedings of specialkind are employed to decide whether the person accused did infact cause the harm, and is, according to law, to be held legallypunishable for doing so.”

45. Stephen defines “crime” thus:-

“A crime is an unlawful act or default which is an offence againstthe public, rendering the person guilty of such act or default liableto legal punishment. The process by which such person ispunished for the unlawful act or default is carried on in the nameof the Crown; although any private person, in the absence ofstatutory provision to the contrary, may commence criminalprosecution. Criminal proceedings were formerly called pleas ofthe Crown, because the King, in whom centres the majesty ofthe whole community, is supposed by the law to be the personinjured by every infraction of the public rights belonging to thatcommunity. Wherefore he is, in all cases, the proper prosecutorfor every public offence.”

46. Blackstone, while discussing the general nature of crime, hasdefined crime thus:-

“A crime, or misdemeanour, is an act committed or omitted, inviolation of public law, either forbidding or commanding it. Thisgeneral definition comprehends both crimes and misdemeanours;which, properly speaking, are mere synonym terms: though, incommon usage, the word “crimes” is made to denote suchoffences as are of deeper and more atrocious dye; while smallerfaults, and omissions of less consequence, are comprised underthe gentler name of “misdemeanours” only.”

47. In this regard, we may reproduce couple of paragraphs fromCentral Inland Water Transport Corporation Limited and anotherv. Brojo Nath Ganguly[36]. They read as under:-

“25. The story of mankind is punctuated by progress andretrogression. Empires have risen and crashed into the dust ofhistory. Civilizations have nourished, reached their peak and

Apassed away. In the year 1625, Carew, C.J., while delivering theopinion of the House of Lords in Re the Earldom of Oxford in adispute relating to the descent of that Earldom, said:

“... and yet time hath his revolution, there must be period andan end of all temporal things, finis rerum, an end of names anddignities, and whatsoever is terrene....”

The cycle of change and experiment, rise and fall, growth anddecay, and of progress and retrogression recurs endlessly in thehistory of man and the history of civilization. T.S. Eliot in theFirst 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 isDgoverned by it. If the law is to play its allotted role of serving theneeds of the society, it must reflect the ideas and ideologies ofthat society. It must keep time with the heartbeats of the societyand with the needs and aspirations of the people. As the societychanges, the law cannot remain immutable. The early nineteenthEcentury essayist and wit, Sydney Smith, said: “When I hear anyman talk of an unalterable law, I am convinced that he is anunalterable fool.” The law must, therefore, in changingsociety march in tune with the changed ideas and ideologies.”

48. Reproducing the same, the Court in Common Cause (AFRegistered Society) (supra), has observed :-

“160. The purpose of saying so is only to highlight that the lawmust take cognizance of the changing society and march inconsonance with the developing concepts. The need of thepresent has to be served with the interpretative process of law.However, it is to be seen how much strength and sanction canbe drawn from the Constitution to consummate the changingideology and convert it into reality. The immediate needs arerequired to be addressed through the process of interpretationby the Court unless the same totally falls outside the constitutionalframework or the constitutional interpretation fails to recognizesuch dynamism.”

JOSEPH SHINE v. UNION OF INDIA[DIPAK MISRA, CJI]

49. We have referred to the aforesaid theories and authorities tounderstand whether adultery that enters into the matrimonial realm shouldbe treated as criminal offence. There can be many situation and wedo not intend to get into the same. Suffice it to say, it is different from anoffence committed under Section 498-A or any violation of the Protectionof Women from Domestic Violence Act, 2005 or, for that matter, theprotection conceived of under Section 125 of the Code of CriminalProcedure or Sections 306 or 304B or 494 IPC. These offences aremeant to sub-serve various other purposes relating to matrimonialrelationship and extinction of life of married woman during subsistenceof marriage. Treating adultery an offence, we are disposed to think,would tantamount to the State entering into real private realm. Underthe existing provision, the husband is treated as an aggrieved person andthe wife is ignored as victim. Presently, the provision is reflective of atripartite labyrinth. situation may be conceived of where equality ofstatus and the right to file case may be conferred on the wife. Ineither situation, the whole scenario is extremely private. It stands incontradistinction to the demand for dowry, domestic violence, sendingsomeone to jail for non-grant of maintenance or filing complaint forsecond marriage. Adultery stands on different footing from the aforesaidoffences. We are absolutely conscious that the Parliament has the lawmaking power. We make it very clear that we are not making law orlegislating but only stating that particular act, i.e., adultery does not fitinto the concept of crime. We may repeat at the cost of repetition thatif it is treated as crime, there would be immense intrusion into theextreme privacy of the matrimonial sphere. It is better to be left as aground for divorce. For any other purpose as the Parliament has perceivedor may, at any time, perceive, to treat it as criminal offence will offendthe two facets of Article 21 of the Constitution, namely, dignity of husbandand wife, as the case may be, and the privacy attached to relationshipbetween the two. Let it be clearly stated, by no stretch of imagination,one can say, that Section 498-A or any other provision, as mentionedhereinbefore, also enters into the private realm of matrimonial relationship.In case of the said offences, there is no third party involved. It is thehusband and his relatives. There has been correct imposition by law notto demand dowry or to treat women with cruelty so as to compel her tocommit suicide. The said activities deserve to be punished and the lawhas rightly provided so.

ABCDEFG

A50. In this regard, we may also note how the extramaritalrelationship cannot be treated as an act for commission of an offenceunder Section 306 IPC. In Pinakin Mahipatray Rawal v. State ofGujarat[37], the Court has held :-

“27. Section 306 refers to abetment of suicide which says thatBif any person commits suicide, whoever abets the commission ofsuch suicide, shall be punished with imprisonment for termwhich may extend to 10 years and shall also be liable to fine.The action for committing suicide is also on account of mentaldisturbance caused by mental and physical cruelty. To constitutean offence under Section 306, the prosecution has to establishCthat person has committed suicide and the suicide was abettedby the accused. The prosecution has to establish beyondreasonable doubt that the deceased committed suicide andthe accused abetted the commission of suicide. But for thealleged extra-marital relationship, which if proved, couldDbe illegal and immoral, nothing has been brought out by theprosecution to show that the accused had provoked, incitedor induced the wife to commit suicide.”

[Emphasis added]

51. In the context of Section 498-A, the Court, in GhusabhaiERaisangbhai Chorasiya v. State of Gujarat[38], has opined that even ifthe illicit relationship is proven, unless some other acceptable evidenceis brought on record to establish such high degree of mental cruelty, theExplanation (a) to Section 498-A IPC, which includes cruelty to drivethe woman to commit suicide, would not be attracted. The relevantFpassage from the said authority is extracted below :-

“21. …True it is, there is some evidence about the illicitrelationship and even if the same is proven, we are of theconsidered opinion that cruelty, as envisaged under the first limbof Section 498-A IPC would not get attracted. It would be difficultGto hold that the mental cruelty was of such degree that it woulddrive the wife to commit suicide. Mere extra-marital relationship,even if proved, would be illegal and immoral, as has been said inPinakin Mahipatray Rawal, but it would take differentcharacter if the prosecution brings some evidence on record to37 (2013) 10 SCC 48H38 (2015) 11 SCC 753

show that the accused had conducted in such manner to drivethe wife to commit suicide. In the instant case, the accused mayhave been involved in an illicit relationship with Appellant 4, butin the absence of some other acceptable evidence on recordthat can establish such high degree of mental cruelty, theExplanation to Section 498-A IPC which includes cruelty to drivea woman to commit suicide, would not be attracted.”

[Emphasis added]

52. The purpose of referring to the aforesaid authorities is tohighlight how adultery has not been granted separate exclusive space inthe context of Sections 306 and 498-A IPC.

53. In case of adultery, the law expects the parties to remain loyaland maintain fidelity throughout and also makes the adulterer the culprit.This expectation by law is command which gets into the core of privacy.That apart, it is discriminatory command and also socio-moral one.Two individuals may part on the said ground but to attach criminality tothe same is inapposite.

54. We may also usefully note here that adultery as crime is nomore prevalent in People’s Republic of China, Japan, Australia, Braziland many western European countries. The diversity of culture in thosecountries can be judicially taken note of. Non-criminalisation of adultery,apart from what we have stated hereinabove, can be proved from certainother facets. When the parties to marriage lose their moral commitmentof the relationship, it creates dent in the marriage and it will dependupon the parties how they deal with the situation. Some may exonerateand live together and some may seek divorce. It is absolutely matterof privacy at its pinnacle. The theories of punishment, whether deterrentor reformative, would not save the situation. punishment is unlikely toestablish commitment, if punishment is meted out to either of them or athird party. Adultery, in certain situations, may not be the cause of anunhappy marriage. It can be the result. It is difficult to conceive of suchsituations in absolute terms. The issue that requires to be determined iswhether the said ‘act’ should be made criminal offence especiallywhen on certain occasions, it can be the cause and in certain situations,it can be the result. If the act is treated as an offence and punishment isprovided, it would tantamount to punishing people who are unhappy inmarital relationships and any law that would make adultery crime would

Ahave to punish indiscriminately both the persons whose marriages havebeen broken down as well as those persons whose marriages are not.A law punishing adultery as crime cannot make distinction betweenthese two types of marriages. It is bound to become law which wouldfall within the sphere of manifest arbitrariness.

B55. In this regard, another aspect deserves to be noted. Thejurisprudence in England, which to large extent, is adopted by thiscountry has never regarded adultery as crime except for period often years in the reign of Puritanical Oliver Cromwell. As we see theinternational perspective, most of the countries have abolished adulteryas crime. We have already ascribed when such an act is treated as aCcrime and how it faces the frown of Articles 14 and 21 of the Constitution.Thinking of adultery from the point of view of criminality would be aretrograde step. This Court has travelled on the path of transformativeconstitutionalism and, therefore, it is absolutely inappropriate to sit in atime machine to different era where the machine moves on the path ofDregression. Hence, to treat adultery as crime would be unwarranted inlaw.

56. As we have held that Section 497 IPC is unconstitutional andadultery should not be treated as an offence, it is appropriate to declareSection 198 CrPC which deals with the procedure for filing complaintEin relation to the offence of adultery as unconstitutional. When thesubstantive provision goes, the procedural provision has to pave the samepath.

57. In view of the foregoing analysis, the decisions in SowmithriVishnu (supra) and V. Revathi (supra) stand overruled and any otherFjudgment following precedents also stands overruled.

58. Consequently, the writ petition is allowed to the extent indicatedhereinbefore.

R. F. NARIMAN, J. (Concurring) 1. What is before us in thiswrit petition is the constitutional validity of an archaic provision of theGIndian Penal Code (“IPC”), namely, Section 497, which makes adulterya crime. Section 497 appears in Chapter XX of the IPC, which dealswith offences relating to marriage. Section 497 reads as follows:-

“497. Adultery.—Whoever has sexual intercourse with personwho is and whom he knows or has reason to believe to be theHwife of another man, without the consent or connivance of that

man, such sexual intercourse not amounting to the offence ofrape, is guilty of the offence of adultery, and shall be punishedwith imprisonment of either description for term which mayextend to five years, or with fine, or with both. In such case thewife shall not be punishable as an abettor.”

The offence of bigamy, which is contained in Section 494 in the sameChapter, is punishable with longer jail term which may extend to 7years, but in this case, the husband or the wife, as the case may be, isliable to be prosecuted and convicted. Section 494 reads as follows:

“—494. Marrying again during lifetime of husband or wife.Whoever, having husband or wife living, marries in any case inwhich such marriage is void by reason of its taking place duringthe life of such husband or wife, shall be punished withimprisonment of either description for term which may extendto seven years, and shall also be liable to fine.

Exception.—This section does not extend to any person whosemarriage with such husband or wife has been declared void by aCourt of competent jurisdiction,

nor to any person who contracts marriage during the life of aformer husband or wife, if such husband or wife, at the time ofthe subsequent marriage, shall have been continually absent fromsuch person for the space of seven years, and shall not havebeen heard of by such person as being alive within that timeprovided the person contracting such subsequent marriage shall,before such marriage takes place, inform the person with whomsuch marriage is contracted of the real state of facts so far asthe same are within his or her knowledge.”

It will be noticed that the crime of adultery punishes only third-partymale offender as against the crime of bigamy, which punishes the bigamist,be it man or woman. What is therefore punished as ‘adultery’ is not‘adultery’ per se but the proprietary interest of married man in hiswife.

Almost all ancient religions/civilizations punished the sin of adultery. Inone of the oldest, namely, in Hammurabi’s Code, death by drowning wasprescribed for the sin of adultery, be it either by the husband or the wife.In Roman law, it was not crime against the wife for husband to havesex with slave or an unmarried woman. The Roman lex Iulia de

Aadulteriis coercendis of 17 B.C., properly so named after EmperorAugustus’ daughter, Julia, punished Julia for adultery with banishment.Consequently, in the case of adulterers generally, both guilty parties weresent to be punished on different islands, and part of their property wasconfiscated.

B2. In Judaism, which again is an ancient religion, the TenCommandments delivered by the Lord to Moses on Mount Sinai containsthe Seventh Commandment – “Thou shalt not commit adultery” – setout in the book of Exodus in the Old Testament.[1] Equally, since thewages of sin is death, the book of Leviticus in the Old Testamentprescribes the death penalty for the adulterer as well as the adulteress.[2]C

3. In Christianity, we find adultery being condemned as immoraland sin for both men and women, as is evidenced by St. Paul’s letter tothe Corinthians.[3] Jesus himself stated that man incurs sin the momenthe looks at woman with lustful intent.[4] However, when it came topunishing woman for adultery, by stoning to death in accordance withDthe ancient Jewish law, Jesus uttered the famous words, “let him whohas not sinned, cast the first stone.”[5]

4. In this country as well, in the Manusmriti, Chapters 4.134[6] and8.352[7] prescribes punishment for those who are addicted to intercoursewith wives of other men by punishments which cause terror, followedEby banishment. The Dharmasutras speak with different voices. In theApastamba Dharmasutra, adultery is punishable as crime, thepunishment depending upon the class or caste of the man and the woman.[8]However, in the Gautama Dharmasutra, if man commits adultery, heshould observe life of chastity for two years; and if he does so with theFwife of vedic scholar, for three years.[9]

5. In Islam, in An-Nur, namely, Chapter 24 of the Qur’an, Verses

2 and 6 to 9 read as follows:

1 Exodus 20:14 (King James Version).

2 Leviticus 20:10 (King James Version).

3 1 Corinthians 6:9-10 (King James Version).

4 Matthew 5:27-28 (King James Version).

5 John, 8:7 (English Standard Version).

6 THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886).

7 Id., 315.

8 DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA70-71 (Translation by Patrick Olivelle, Oxford University Press 1999).H9 Id., 116-117.

“2. The adulteress and the adulterer, flog each of them (with) ahundred stripes, and let not pity for them detain you fromobedience to Allah, if you believe in Allah and the Last Day, andlet party of believers witness their chastisement.”[10]

xxx xxx xxx

“6. And those who accuse their wives and have no witnessesexcept themselves, let one of them testify four times, bearingAllah to witness, that he is of those who speak the truth.7. And the fifth (time) that the curse of Allah be on him, if heis of those who lie.

8. And it shall avert the chastisement from her, if she testifyfour times, bearing Allah to witness, that he is of those who lie.

9. And the fifth (time) that the wrath of Allah to be on her, ifhe is of those who speak the truth.”[11]

What is interesting to note is that if there are no witnesses other than thehusband or the wife, and the husband testifies four times that his wifehas committed adultery, which is met by the wife testifying four timesthat she has not, then earthly punishment is averted. The wrath of Allahalone will be on the head of he or she who has given false testimony –which wrath will be felt only in life after death in the next world.

6. In sixth-century Anglo-Saxon England, the law created“elaborate tables of composition” which the offended husband couldaccept in lieu of blood vengeance. These tables were schemes forpayment of compensation depending upon the degree of harm caused tothe cuckolded husband. However, as Christianity spread in England,adultery became morally wrong and therefore, sin, as well as wrongagainst the husband. Post 1066, the Normans who took over, viewedadultery not as crime against the State, but rather as an ecclesiasticaloffence dealt with by the Church. The common law of England prescribedan action in tort for loss of consortium based on the property interest ahusband had in his wife. Thus, the action for conversation, which iscompensation or damages, usually represented first step in obtainingdivorce in medieval England. In fact, adultery was the only ground fordivorce in seventeenth-century England, which had to be granted only

10 THE KORAN (AL–QUR’AN): ARABIC-ENGLISH BILINGUAL EDITION WITH AN INTRODUCTIONBY MOHAMED A. ‘ARAFA 363 (Maulana Muhammad Ali Translation, TellerBooks,2018).11 Id.

Aby Parliament. Interestingly enough, it was only after King Charles Iwas beheaded in 1649, that adultery became capital offence inCromwell’s Puritanical England in the year 1650, which was nullified assoon as King Charles II came back in what was known as the ‘restorationof the monarchy’. It will be seen therefore, that in England, except foran eleven-year period when England was ruled by the Puritans, adulteryBwas never considered to be criminal offence. Adultery was only tortfor which damages were payable to the husband, given his proprietaryinterest in his wife.[12] This tort is adverted to by 1904 judgment of theSupreme Court of the United States in Charles A. Tinker v. FrederickL. Colwell, 193 US 473 (1904), as follows:C“…… We think the authorities show the husband had certainpersonal and exclusive rights with regard to the person of hiswife which are interfered with and invaded by criminalconversation with her; that such an act on the part of anotherman constitutes an assault even when, as is almost universallyDthe case as proved, the wife in fact consents to the act, becausethe wife is in law incapable of giving any consent to affect thehusband’s rights as against the wrongdoer, and that an assault ofthis nature may properly be described as an injury to the personalrights and property of the husband, which is both malicious andwillful……EThe assault vi et armis is fiction of law, assumed at first, inearly times, to give jurisdiction of the cause of action as trespass,to the courts, which then proceeded to permit the recovery ofdamages by the husband for his wounded feelings and honour,the defilement of the marriage bed, and for the doubt thrownFupon the legitimacy of children.”[13]“We think that it is made clear by these references to few ofthe many cases on this subject that the cause of action by thehusband is based upon the idea that the act of the defendant is aviolation of the marital rights of the husband in the person of hisGwife, and so the act of the defendant is an injury to the personand also to the property rights of the husband.”[14]

12 Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics:Regulations Banning Sex between Domestic Relations Attorneys and Their Clients, 23HARVARD WOMEN’S LAW JOURNAL 1, 21-22 (2000) [“Linda Fitts Mischler”].13 Tinker v. Colwell, 193 U.S. 473, 481 (1904).H14 Id., 485.

To similar effect is the judgment in Pritchard v. Pritchard and Sims,[1966] 3 All E.R. 601, which reconfirmed the origins of adultery orcriminal conversation as under:

“In 1857, when marriage in England was still union for lifewhich could be broken only by private Act of Parliament, thereexisted side by side under the common law three distinct causesof action available to husband whose rights in his wife wereviolated by third party, who enticed her away, or who harbouredher or who committed adultery with her. …… In the action foradultery known as criminal conversation, which dates from beforethe time of BRACTON, and consequently lay originally intrespass, the act of adultery itself was the cause of action andthe damages punitive at large. It lay whether the adultery resultedin the husband’s losing his wife’s society and services or not.All three causes of action were based on the recognition accordedby the common law to the husband’s propriety interest in theperson of his wife, her services and earnings, and in the propertywhich would have been hers had she been feme sole.”[15]7. In England, Section LIX of the Divorce and Matrimonial CausesAct, 1857 abolished the common law action for criminal conversationwhile retaining, by Section XXXIII of the same Act, the power to awardthe husband damages for adultery committed by the wife. This positioncontinued right till 1923, when the Matrimonial Causes Act, 1923 madeadultery ground for divorce available to both spouses instead of onlythe husband. The right of husband to claim damages for adultery wasabolished very recently by the Law Reforms (Miscellaneous Provisions)Act, 1970.[16]

8. In the United States, however, Puritans who went to make aliving in the American colonies, carried with them Cromwell’s criminallaw, thereby making adultery capital offence. Strangely enough, thisstill continues in some of the States in the United States. The AmericanLaw Institute, however, has dropped the crime of adultery from its ModelPenal Code as adultery statutes are in general vague, archaic, and sexist.None of the old reasons in support of such statutes, namely, the controllingof disease, the preventing of illegitimacy, and preserving the traditionalfamily continue to exist as of today. It was also found that criminal adultery

15 [1966] 3 All E.R. 601, 607.

16 Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970.

Astatutes were rarely enforced in the United States and were, therefore,referred to as “dead letter statutes”. This, plus the potential abuses fromsuch statutes continuing on the statute book, such as extortion, blackmail,coercion etc. were stated to be reasons for removing adultery as crimein the Model Penal Code.[17]B9. When we come to India, Lord Macaulay, in his draft PenalCode, which was submitted to the Law Commissioners, refused to makeadultery penal offence. He reasoned as follows:

“The following positions we consider as fully established: first,that the existing laws for the punishment of adultery are altogetherCinefficacious for the purpose of preventing injured husbands ofthe higher classes from taking the law into their own hands;secondly, that scarcely any native of the higher classes ever hasrecourse to the Courts of law in case of adultery for redressagainst either his wife, or her gallant; thirdly, that the husbandswho have recourse in cases of adultery to the Courts of law areDgenerally poor men whose wives have run away, that thesehusbands seldom have any delicate feelings about the intrigue,but think themselves injured by the elopement, that they considertheir wives as useful members of their small household, that theygenerally complain not of the wound given to their affections,Enot of the stain on their honor, but of the loss of menial whomthey cannot easily replace, and that generally their principal objectis that the woman may be sent back. The fiction by whichseduction is made the subject of an action in the English Courtsis, it seems, the real gist of most proceedings for adultery in theMofussil. The essence of the injury is considered by the suffererFas lying in the “per quod servitium amisit.” Where the complainantdoes not ask to have his wife again, he generally demands to bereimbursed for the expenses of his marriage.

These things being established it seems to us that no advantageis to be expected from providing punishment for adultery. TheGpopulation seems to be divided into two classes- those whomneither the existing punishment nor any punishment which weshould feel ourselves justified in proposing will satisfy, and thosewho consider the injury produced by adultery as one for which apecuniary compensation will sufficiently atone. Those whoseH17 Linda Fitts Mischler, supra n. 12, 23-25.

feelings of honor are painfully affected by the infidelity of theirwives will not apply to the tribunals at all. Those whose feelingsare less delicate will be satisfied by payment of money. Undersuch circumstances we think it best to treat adultery merely as acivil injury.”

xxx xxx xxx

“These arguments have not satisfied us that adultery ought to bemade punishable by law. We cannot admit that Penal code isby any means to be considered as body of ethics, that thelegislature ought to punish acts merely because those acts areimmoral, or that because an act is not punished at all it followsthat the legislature considers that act as innocent. Many thingswhich are not punishable are morally worse than many thingswhich are punishable. The man who treats generous benefactorwith gross in gratitude and insolence, deserves more severereprehension than the man who aims blow in passion, orbreaks window in frolic. Yet we have punishments for assaultand mischief, and none for ingratitude. The rich man who refusesa mouthful of rice to save fellow creature from death may bea far worse man than the starving wretch who snatches anddevours the rice. Yet we punish the latter for theft, and we donot punish the former for hard-heartedness.”

xxx xxx xxx

“There is yet another consideration which we cannot wholly leaveout of sight. Though we well know that the dearest interests ofthe human race are closely connected with the chastity of women,and the sacredness of the nuptial contract, we cannot but feelthat there are some peculiarities in the state of society in thiscountry which may well lead humane man to pause before hedetermines to punish the infidelity of wives. The condition of thewomen of this country is unhappily very different from that ofthe women of England and France. They are married while stillchildren. They are often neglected for other wives while stillyoung. They share the attentions of husband with several rivals.To make laws for punishing the inconstancy of the wife whilethe law admits the privilege of the husband to fill his zenana withwomen, is course which we are most reluctant to adopt. Weare not so visionary as to think of attacking by law an evil so

Adeeply rooted in the manners of the people of this country aspolygamy. We leave it to the slow, but we trust the certainoperation of education and of time. But while it exists, while itcontinues to produce its never failing effects on the happinessand respectability of women, we are not inclined to throw into ascale already too much depressed the additional weight of theBpenal law. We have given the reasons which lead us to believethat any enactment on this subject would be nugatory. And weare inclined to think that if not nugatory it would be oppressive.It would strengthen hands already too strong. It would weaken aclass already too weak. It will be time enough to guard theCmatrimonial contract by penal sanctions when that contractbecomes just, reasonable, and mutually beneficial.”[18]

10. However, when the Court Commissioners reviewed the PenalCode, they felt that it was important that adultery be made an offence.The reasons for so doing are set out as follows:

D“353. Having given mature consideration to the subject, we have,after some hesitation, come to the conclusion that it is notadvisable to exclude this offence from the Code. We think thereasons for continuing to treat it as subject for the cognizanceof the criminal courts preponderate. We conceive that ColonelESleeman is probably right in regarding the difficulty of provingthe offence according to the requirement of the Mohammedanlaw of evidence, which demands an amount of positive proofthat is scarcely ever to be had in such case, as having someeffect in deterring the Natives from prosecuting adulterers inour courts, although the Regulations allow of conviction uponFstrong presumption arising from circumstantial evidence. Thisdifficulty, if it has had the effect supposed, will be removed, shouldthe Code be adopted. Colonel Sleeman’s representation of theactual consequences of the present system, which, while itrecognizes the offence, renders it, in the opinion of the Natives,Galmost impossible to bring an offender to justice, it will be observed,coincides with and confirms practically Mr. Livingstone’s viewof the result to be expected when the law refuses to punish this

18 PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMANDOF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 (G.H. Huttmann, The BengalMilitary Orphan Press, 1837).H

offence. The injured party will do it for himself; great crimes,assassinations, poisonings, will be the consequence. The law heredoes not refuse, but it fails to punish the offence, says ColonelSleeman, and poisonings are the consequence.

354. Colonel Sleeman thinks that the Commissioners havewrongly assumed that it is the lenity of the existing law that it iscomplained of by the Natives, and believes that they would besatisfied with less punishment for the offence than the presentlaw allows; viz. imprisonment for seven years, if it were certainto follow the offender. He proposes that the punishment of aman “convicted of seducing the wife of another” shall beimprisonment which may extend to seven years, or fine payableto the husband or both imprisonment and fine. The punishmentof married woman “convicted of adultery” he would limit toimprisonment for two years. We are not aware whether or nothe intends the difference in the terms used to be significant of adifference in the nature of the proof against the man and thewoman respectively.

355. While we think that the offence of adultery ought not to beomitted from the Code, we would limit its cognizance to adulterycommitted with married woman, and considering that there ismuch weight in the last remark in Note Q, regarding the conditionof women of this country, in deference to it we would renderthe male offender alone liable to punishment. We would, however,put the parties accused of adultery on trial together, and empowerthe Court, in the event of their conviction, to pronounce decreeof divorce against the guilty woman, if the husband sues for it, atthe same time that her paramour is sentenced to punishment byimprisonment or fine. By Mr. Livingstone’s Code, the womanforfeits her “matrimonial gains”, but is not liable to otherpunishment.

356.We would adopt Colonel Sleeman’s suggestion as to thepunishment of the male offender, limiting it to imprisonment notexceeding five years, instead of seven years allowed at present,and sanctioning the imposition of fine payable to the husbandas an alternative, or in addition.

357. The punishment prescribed by the Code of Louisiana isimprisonment not more than six months, or fine not exceeding

A2,000 dollars, or both. By the French Code, the maximum termof imprisonment is two years, with fine in addition, which mayamount to 2,000 francs.

358. If the offence of adultery is admitted into the Penal Code,there should be provision in the Code of Procedure to restrictthe right of prosecuting to the injured husband, agreeably toSection 2, Act II of 1845.”[19]

(emphasis supplied)

These are some of the reasons that led to the enactment of Section 497,IPC.

C11. At this stage, it is important to note that by Section 199 of theCode of Criminal Procedure, 1898, it was only the husband who was tobe deemed to be aggrieved by an offence punishable under Section 497,IPC. Thus, Section 199 stated:

“199. Prosecution for adultery or enticing marriedDwoman.— No Court shall take cognizance of an offence undersection 497 or section 498 of the Indian Penal Code (XLV of1860), except upon complaint made by the husband of thewoman, or, in his absence, by some person who had care ofsuch woman on his behalf at the time when such offence wascommitted.”E

12.Even when this Code was replaced by the Code of CriminalProcedure (“CrPC”), 1973, Section 198 of the CrPC, 1973 continuedthe same provision with proviso that in the absence of the husband,some person who had care of the woman on his behalf at the time whensuch offence was committed may, with the leave of the Court, make aFcomplaint on his behalf. The said Section reads as follows:

“198. Prosecution for offences against marriage.— (1) NoCourt shall take cognizance of an offence punishable underChapter XX of the Indian Penal Code (45 of 1860) except upona complaint made by some person aggrieved by the offence:

Provided that—

(a) where such person is under the age of eighteen years, or isan idiot or lunatic, or is from sickness or infirmity unable to

19 COPIES OF THE SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS 76 (James C. Melvill,HEast India House, 1847).

make complaint, or is woman who, according to the localcustoms and manners, ought not to be compelled to appear inpublic, some other person may, with the leave of the Court,make complaint on his or her behalf;

(b) where such person is the husband and he is serving in anyof the Armed Forces of the Union under conditions which arecertified by his Commanding Officer as precluding him fromobtaining leave of absence to enable him to make complaintin person, some other person authorised by the husband inaccordance with the provisions of sub-section (4) may make acomplaint on his behalf;

(c) where the person aggrieved by an offence punishable underSection 494 or Section 495 of the Indian Penal Code (45 of1860) is the wife, complaint may be made on her behalf by herfather, mother, brother, sister, son or daughter or by her father’sor mother’s brother or sister, or, with the leave of the Court, byany other person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than thehusband of the woman shall be deemed to be aggrieved by anyoffence punishable under Section 497 or Section 498 of the saidCode:

Provided that in the absence of the husband, some person whohad care of the woman on his behalf at the time when suchoffence was committed may, with the leave of the Court, makea complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso tosub-section (1), the complaint is sought to be made on behalf ofa person under the age of eighteen years or of lunatic by aperson who has not been appointed or declared by competentauthority to be the guardian of the person of the minor or lunatic,and the Court is satisfied that there is guardian so appointed ordeclared, the Court shall, before granting the application for leave,cause notice to be given to such guardian and give him areasonable opportunity of being heard.(4) The authorisation referred to in clause (b) of the proviso tosub-section (1), shall be in writing, shall be signed or otherwiseattested by the husband, shall contain statement to the effect

Athat he has been informed of the allegations upon which thecomplaint is to be founded, shall be countersigned by hisCommanding Officer, and shall be accompanied by certificatesigned by that Officer to the effect that leave of absence for thepurpose of making complaint in person cannot for the timebeing be granted to the husband.B(5) Any document purporting to be such an authorisation andcomplying with the provisions of sub-section (4), and anydocument purporting to be certificate required by that sub-section shall, unless the contrary is proved, be presumed to begenuine and shall be received in evidence.C(6) No Court shall take cognizance of an offence under Section376 of the Indian Penal Code (45 of 1860), where such offenceconsists of sexual intercourse by man with his own wife, thewife being under eighteen years of age, if more than one yearhas elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, orattempt to commit, an offence as they apply to the offence.”

At this stage, it is important to advert to some of the judgments of theHigh Courts and our Court. In Yusuf Abdul Aziz v. State, 1952 ILRBom 449, Division Bench of the Bombay High Court, consisting ofEM.C. Chagla, C.J. and P.B. Gajendragadkar, J. held that Section 497 ofthe IPC did not contravene Articles 14 and 15 of the Constitution.However, in an instructive passage, the learned Chief Justice stated:

“…… Mr. Peerbhoy is right when he says that the underlyingidea of Section 497 is that wives are properties of their husbands.FThe very fact that this offence is only cognizable with the consentof the husband emphasises that point of view. It may be arguedthat Section 497 should not find place in any modern Code oflaw. Days are past, we hope, when women were looked upon asproperty by their husbands. But that is an argument more infavour of doing away with Section 497 altogether.”[20]GAn appeal to this Court in Yusuf Abdul Aziz v. State of Bombay, 1954SCR 930, (“Yusuf Abdul Aziz”), met with the same result.

This Court, through Vivian Bose, J., held that the last part of Section497, which states that the wife shall not be punishable as an abettor ofH20 1952 ILR Bombay 449, 454.

the offence of adultery, does not offend Articles 14 and 15 in view of thesaving provision contained in Article 15(3), being special provision madein favour of women.

This is an instance of Homer nodding. Apart from limited ratio basedupon limited argument, the judgment applies constitutional provisionwhich is obviously inapplicable as Article 15(3), which states that, “nothingin this article shall prevent the State from making special provision forwomen”, would refer to the “State” as either Parliament or the StateLegislatures or the Executive Government of the Centre or the States,set up under the Constitution after it has come into force. Section 497 is,in constitutional language, an “existing law” which continues, by virtueof Article 372(1), to apply, and could not, therefore, be said to be lawmade by the “State”, meaning any of the entities referred to above.

13. We have noticed judgment of the Division Bench of theBombay High Court in Dattatraya Motiram More v. State of Bombay,AIR 1953 Bom 311, in which the Division Bench turned down asubmission that Article 15(3) is confined to laws made after theConstitution of India comes into force and would also apply to existinglaw 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 inforce before the commencement of the Constitution wereconcerned, those laws can only be tested by Art. 15(1) and notby Art. 15(1) read with Art. 15(3). Mr. Patel contends that Art.15(3) permits the State in future to make special provision forwomen and children, but to the extent the laws in force areconcerned Art. 15(1) applies, and if the laws in force areinconsistent 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 beforethe commencement of this Constitution, in so far as they areinconsistent with the provisions of this Part, shall, to the extentof such inconsistency, be void.”

Therefore, before law in force can be declared to be void itmust be found to be inconsistent with one of the provisions ofPart III which deals with Fundamental Rights, and thefundamental right which is secured to the citizen under Art. 15 is

852SUPREME COURT REPORTS

Anot the unlimited right under Art. 15(1) but the right under Art.15(1) qualified by Art. 15(3). It is impossible to argue that theConstitution did not permit laws to have special provision forwomen if the laws were passed before the Constitution cameinto force, but permitted the Legislature to pass laws in favourof women after the Constitution was enacted. If lawBdiscriminating in favour of women is opposed to the fundamentalrights of citizens, there is no reason why such law should continueto remain on the statute book. The whole scheme of Art. 13 is tomake laws, which are inconsistent with Part III, void, not only ifthey were in force before the commencement of the Constitution,Cbut also if they were enacted after the Constitution came intoforce. Mr. Patel relies on the various provisos to Art. 19 and hesays that in all those provisos special mention is made to existinglaws and also to the State making laws in future. Now, the schemeof Art. 19 is different from the scheme of Art. 15. Provisos toArt. 19 in terms deal with law whether existing or to be made inDfuture by the State, whereas Art. 15(3) does not merely dealwith laws but deals generally with any special provision for womenand children, and therefore it was not necessary in Art. 15(3) tomention both existing laws and laws to be made in future. Butthe exception made to Art. 15(1) by Art. 15(3) is an exceptionEwhich applies both to existing laws and to laws which the Statemay make in future.”

14. We are of the view that this paragraph does not represent thelaw correctly. In fact, Article 19(2)-(6) clearly refers to “existing law”as being separate from “the State making any law”, indicating that theFState making any law would be laws made after the Constitution comesinto force as opposed to “existing law”, which are pre-constitutionallaws enacted before the Constitution came into force, as is clear fromthe definition of “existing law” contained in Article 366(10), which readsas under:

G“366. Definitions.—In this Constitution, unless the contextotherwise requires, the following expressions have the meaningshereby respectively assigned to them, that is to say—xxx xxx xxx

(10) “existing law” means any law, Ordinance, order, bye-law,Hrule or regulation passed or made before the commencement of

this Constitution by any Legislature, authority or person havingpower to make such law, Ordinance, order, bye-law, rule orregulation;”

15. Article 15(3) refers to the State making laws which therefore,obviously cannot include existing law. Article 15(3) is in this respectsimilar to Article 16(4), which reads as follows:

“16. Equality of opportunity in matters of publicemployment.—

xxx xxx xxx

(4) Nothing in this article shall prevent the State from makingany provision for the reservation of appointments or posts infavour of any backward class of citizens which, in the opinion ofthe State, is not adequately represented in the services under theState.

The vital difference in language between Articles 15(3) and 16(4) on theone hand, and Article 19(2)-(6) on the other, must thus be given effect.

16. Coming back to Yusuf Abdul Aziz (supra), the difference inlanguage between Article 15(3) and Article 19(2)-(6) was not noticed.The limited ratio of this judgment merely refers to the last sentence inSection 497 which it upholds. Its ratio does not extend to upholding theentirety of the provision or referring to any of the arguments made beforeus for striking down the provision as whole.

17. We then come to Sowmithri Vishnu v. Union of India andAnr., (1985) Supp SCC 137, (“Sowmithri Vishnu”). In this case, anArticle 32 petition challenged the constitutional validity of Section 497 ofthe Penal Code on three grounds which are set out in paragraph 6 of thejudgment. Significantly, the learned counsel in that case argued thatSection 497 is flagrant instance of ‘gender discrimination’, ‘legislativedespotism’, and ‘male chauvinism’. This Court repelled these argumentsstating that they had strong emotive appeal but no valid legal basis torest upon. The first argument, namely, an argument of discriminationwas repelled by stating that the ambit of the offence of adultery shouldmake the woman punishable as well. This was repelled by saying thatsuch arguments go to the policy of the law and not its constitutionality.This was on the basis that it is commonly accepted that it is the man whois the seducer and not the woman. Even in 1985, the Court accepted

Athat this archaic position may have undergone some change over theyears, but it is for the legislature to consider whether Section 497 beamended appropriately so as to take note of the transformation thatsociety has undergone.

The Court then referred to the 42[nd] Law Commission Report, 1971,Bwhich recommended the retention of Section 497, with the modificationthat, even the wife, who has sexual relations with person other thanher husband, should be made punishable for adultery. The dissentingnote of Mrs. Anna Chandi was also taken note of, where the dissenterstated that this is the right time to consider the question whether theoffence of adultery, as envisaged in Section 497, is in tune with ourCpresent-day notions of women’s status in marriage.

The second ground was repelled stating that woman is the victim ofthe crime, and as the offence of adultery is considered as an offenceagainst the sanctity of the matrimonial home, only those men who defilethat sanctity are brought within the net of the law. Therefore, it is of noDmoment that Section 497 does not confer any right on the wife to prosecutethe husband who has committed adultery with another woman.

The third ground, namely, that Section 497 is underinclusive inasmuch asa husband who has sexual relations with an unmarried woman is notwithin the net of the law, was repelled stating that an unfaithful husbandEmay invite civil action by the wife for separation, and that the Legislatureis entitled to deal with the evil where it is felt and seen most.

challenge on the ground of Article 21 was also repelled, stating thatthe fact that provision for hearing the wife is not contained in Section497 cannot render that Section unconstitutional. This Court then referredFto the judgment in Yusuf Abdul Aziz (supra) and stated that since it wasa 1954 decision, and 30 years had passed since then, this Court wasexamining the position afresh. The Court ended with the sermon, “stabilityof marriages is not an ideal to be scorned.”

18. In V. Revathi v. Union of India and Ors., (1988) 2 SCC 72,Gthis Court, after referring to Sowmithri Vishnu (supra), repelled similarchallenge to Section 198 of the CrPC, 1973. After referring to SowmithriVishnu (supra), since Section 497, IPC and Section 198, CrPC go handin hand and constitute ‘legislative packet’ to deal with the offence ofadultery committed by an outsider, the challenge to the said Section failed.H

19. International trends worldwide also indicate that very fewnations continue to treat adultery as crime, though most nations retainadultery for the purposes of divorce laws. Thus, adultery continues to bea criminal offence in Afghanistan, Bangladesh, Indonesia, Iran, Maldives,Nepal, Pakistan, Philippines, United Arab Emirates, some states of theUnited States of America, Algeria, Democratic Republic of Congo, Egypt,Morocco, and some parts of Nigeria.

On the other hand, number of jurisdictions have done away with adulteryas crime. The People’s Republic of China, Japan, Brazil, New Zealand,Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria,the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad andTobago, Seychelles etc. are some of the jurisdictions in which it hasbeen done away with. In South Korea[21] and Guatemala,[22] provisionssimilar to Section 497 have been struck down by the constitutional courtsof those nations.

20. The Supreme Court of Namibia, in an instructive judgment,[23]went into whether the criminal offence of adultery would protectmarriages and reduce the incidence of adultery. It said:

“[45] But does the action protect marriages from adultery? Forthe reasons articulated by both the SCA and the ConstitutionalCourt, I do not consider that the action can protect marriage asit does not strengthen weakening marriage or breathe life intoone which is in any event disintegrating. [DE v. RH, 2015 (5) SA83 (CC) (Constitutional Court of South Africa) para 49]. Thereasoning set out by the SCA is salutary and bears repetition:

‘But the question is: if the protection of marriage is one of itsmain goals, is the action successful in achieving that goal? Thequestion becomes more focused when the spotlight is directedat the following considerations:

(a) First of all, as was pointed out by the GermanBundesgericht in the passage from the judgment (JZ 1973,668) from which I have quoted earlier, although marriage is —

21 2009 Hun-Ba 17, (26.02.2015) [Constitutional Court of South Korea].

22 Expediente 936-95, (07.03.1996), República de Guatemala Corte de Constitucionalidad[Constitutional Court of Guatemala].

23 James Sibongo v. Lister Lutombi Chaka and Anr. (Case No. SA77-14) (19.08.2016)[Supreme Court of Namibia].

‘a human institution which is regulated by law andprotected by the Constitution and which, in turn, createsgenuine legal duties. Its essence . . . consists in thereadiness, founded in morals, of the parties to themarriage to create and to maintain it.’

If the parties to the marriage have lost that moralcommitment, the marriage will fail, and punishment metedout to third party is unlikely to change that.

(b) Grave doubts are expressed by many about the deterrenteffect of the action. In most other countries it was concludedthat the action (no longer) has any deterrent effect and Ihave no reason to think that the position in our society is allthat different. Perhaps one reason is that adultery occursin different circumstances. Every so often it happenswithout any premeditation, when deterrence hardly plays arole. At the other end of the scale, the adultery is sometimescarefully planned and the participants are confident that itwill not be discovered. Moreover, romantic involvementbetween one of the spouses and third party can be asdevastating to the marital relationship as (or even more sothan) sexual intercourse.

(c) If deterrence is the main purpose, one would havethought that this could better be achieved by retaining theimposition of criminal sanctions or by the grant of an interdictin favour of the innocent spouse against both the guiltyspouse and the third party to prevent future acts of adultery.But, as we know, the crime of adultery had becomeabrogated through disuse exactly 100 years ago while aninterdict against adultery has never been granted by ourcourts (see, for example, Wassenaar v Jameson, supra at352H – 353H). Some of the reasons given in Wassenaaras to why an interdict would not be appropriate are quiteenlightening and would apply equally to the appropriatenessof claim for damages. These include, firstly, that aninterdict against the guilty spouse is not possible becausehe or she commits no delict. Secondly, that as against athird party —

‘it interferes with, and restricts the rights and freedomthat the third party ordinarily has of using and disposingof his body as he chooses; . . . it also affects therelationship of the third party with the claimant’s spouse,who is and cannot be party to the interdict, andtherefore indirectly interferes with, and restricts herrights and freedom of, using and disposing of her bodyas she chooses’. [At 353E.]

(d) In addition the deterrence argument seems to departfrom the assumption that adultery is the cause of thebreakdown of marriage, while it is now widely recognisedthat causes for the breakdown in marriages are far morecomplex. Quite frequently adultery is found to be the resultand not the cause of an unhappy marital relationship.Conversely stated, marriage in which the spouses areliving in harmony is hardly likely to be broken up by thirdparty.’”[24]

21. Coming back to Section 497, it is clear that in order to constitutethe offence of adultery, the following must be established:

(i)Sexual intercourse between married woman and manwho is not her husband;

(ii)The man who has sexual intercourse with the marriedwoman must know or has reason to believe that she is thewife of another man;

(iii) Such sexual intercourse must take place with her consent,i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take placewithout the consent or connivance of her husband.

22. What is apparent on cursory reading of these ingredients isthat married man, who has sexual intercourse with an unmarried womanor widow, does not commit the offence of adultery. Also, if man hassexual intercourse with married woman with the consent or connivanceof her husband, he does not commit the offence of adultery. The consentof the woman committing adultery is material only for showing that theoffence is not another offence, namely, rape.

24 Id., 17-19.

A23. The background in which this provision was enacted now needsto be stated. In 1860, when the Penal Code was enacted, the vast majorityof the population in this country, namely, Hindus, had no law of divorceas marriage was considered to be sacrament. Equally, Hindu mancould marry any number of women until 1955. It is, therefore, not far tosee as to why married man having sexual intercourse with an unmarriedBwoman was not the subject matter of the offence. Since adultery did notexist as ground in divorce law, there being no divorce law, and since aman could marry any number of wives among Hindus, it was clear thatthere was no sense in punishing married man in having sex with anunmarried woman as he could easily marry her at subsequent point inCtime. Two of the fundamental props or bases of this archaic law havesince gone. Post 1955-1956, with the advent of the “Hindu Code”, so tospeak, Hindu man can marry only one wife; and adultery has beenmade ground for divorce in Hindu Law.

Further, the real heart of this archaic law discloses itself when consentDor connivance of the married woman’s husband is obtained – the marriedor unmarried man who has sexual intercourse with such woman, doesnot then commit the offence of adultery. This can only be on thepaternalistic notion of woman being likened to chattel, for if one is touse the chattel or is licensed to use the chattel by the “licensor”, namely,the husband, no offence is committed. Consequently, the wife who hasEcommitted adultery is not the subject matter of the offence, and cannot,for the reason that she is regarded only as chattel, even be punished asan abettor. This is also for the chauvinistic reason that the third-partymale has ‘seduced’ her, she being his victim. What is clear, therefore, isthat this archaic law has long outlived its purpose and does not square

Fwith today’s constitutional morality, in that the very object with which itwas made has since become manifestly arbitrary, having lost its rationalelong ago and having become in today’s day and age, utterly irrational.On this basis alone, the law deserves to be struck down, for with thepassage of time, Article 14 springs into action and interdicts such law asbeing manifestly arbitrary. That legislation can be struck down on theGground of manifest arbitrariness is no longer open to any doubt, as hasbeen held by this Court in Shayara Bano v. Union of India and Ors.,(2017) 9 SCC 1, as follows:

“101. …… Manifest arbitrariness, therefore, must be somethingdone by the legislature capriciously, irrationally and/or without

adequate determining principle. Also, when something is donewhich is excessive and disproportionate, such legislation wouldbe manifestly arbitrary. We are, therefore, of the view thatarbitrariness in the sense of manifest arbitrariness as pointed out byus above would apply to negate legislation as well under Article 14.”

24. It is clear, therefore, that the ostensible object of Section 497,as pleaded by the State, being to protect and preserve the sanctity ofmarriage, is not in fact the object of Section 497 at all, as has been seenhereinabove. The sanctity of marriage can be utterly destroyed by amarried man having sexual intercourse with an unmarried woman or awidow, as has been seen hereinabove. Also, if the husband consents orconnives at such sexual intercourse, the offence is not committed, therebyshowing that it is not sanctity of marriage which is sought to be protectedand preserved, but proprietary right of husband. Secondly, no deterrenteffect has been shown to exist, or ever to have existed, which may be alegitimate consideration for State enacting criminal law. Also, manifestarbitrariness is writ large even in cases where the offender happens tobe married woman whose marriage has broken down, as result ofwhich she no longer cohabits with her husband, and may in fact, haveobtained decree for judicial separation against her husband, preparatoryto divorce being granted. If, during this period, she has sex with anotherman, 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 ushereinabove, in treating woman as chattel for the purposes of thisprovision, it is clear that such provision discriminates against women ongrounds of sex only, and must be struck down on this ground as well.Section 198, CrPC is also blatantly discriminatory provision, in that it isthe husband alone or somebody on his behalf who can file complaintagainst another man for this offence. Consequently, Section 198 hasalso to be held constitutionally infirm.

26. We have, in our recent judgment in Justice K.S. Puttaswamy(Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1,(“Puttaswamy”), held:

“108. Over the last four decades, our constitutional jurisprudencehas recognised the inseparable relationship between protectionof life and liberty with dignity. Dignity as constitutional valuefinds expression in the Preamble. The constitutional vision seeks

the realisation of justice (social, economic and political); liberty(of thought, expression, belief, faith and worship); equality (as aguarantee against arbitrary treatment of individuals) and fraternity(which assures life of dignity to every individual). Theseconstitutional precepts exist in unity to facilitate humane andcompassionate society. The individual is the focal point of theConstitution because it is in the realisation of individual rightsthat the collective well-being of the community is determined.Human dignity is an integral part of the Constitution. Reflectionsof dignity are found in the guarantee against arbitrariness (Article14), the lamps of freedom (Article 19) and in the right to life andpersonal liberty (Article 21).”

xxx xxx xxx

“298. Privacy of the individual is an essential aspect of dignity.Dignity has both an intrinsic and instrumental value. As an intrinsicvalue, human dignity is an entitlement or constitutionallyprotected interest in itself. In its instrumental facet, dignity andfreedom are inseparably intertwined, each being facilitativetool to achieve the other. The ability of the individual to protect azone of privacy enables the realisation of the full value of lifeand liberty. Liberty has broader meaning of which privacy is asubset. All liberties may not be exercised in privacy. Yet otherscan be fulfilled only within private space. Privacy enables theindividual to retain the autonomy of the body and mind. Theautonomy of the individual is the ability to make decisions onvital matters of concern to life. Privacy has not been couched asan independent fundamental right. But that does not detract fromthe constitutional protection afforded to it, once the true natureof privacy and its relationship with those fundamental rights whichare expressly protected is understood. Privacy lies across thespectrum of protected freedoms. The guarantee of equality is aguarantee against arbitrary State action. It prevents the Statefrom discriminating between individuals. The destruction by theState of sanctified personal space whether of the body or ofthe mind is violative of the guarantee against arbitrary State action.Privacy of the body entitles an individual to the integrity of thephysical aspects of personhood. The intersection between one’smental integrity and privacy entitles the individual to freedom ofthought, the freedom to believe in what is right, and the freedom

of self-determination. When these guarantees intersect withgender, they create private space which protects all thoseelements which are crucial to gender identity. The family, marriage,procreation and sexual orientation are all integral to the dignityof the individual. Above all, the privacy of the individual recognisesan inviolable right to determine how freedom shall be exercised.An individual may perceive that the best form of expression is toremain silent. Silence postulates realm of privacy. An artistfinds reflection of the soul in creative endeavour. writerexpresses the outcome of process of thought. musiciancontemplates upon notes which musically lead to silence. Thesilence, which lies within, reflects on the ability to choose how toconvey thoughts and ideas or interact with others. These arecrucial aspects of personhood. The freedoms under Article 19can be fulfilled where the individual is entitled to decide upon hisor her preferences. Read in conjunction with Article 21, libertyenables the individual to have choice of preferences on variousfacets of life including what and how one will eat, the way onewill dress, the faith one will espouse and myriad other matterson which autonomy and self-determination require choice tobe made within the privacy of the mind. The constitutional rightto the freedom of religion under Article 25 has implicit within itthe ability to choose faith and the freedom to express or notexpress those choices to the world. These are some illustrationsof the manner in which privacy facilitates freedom and is intrinsicto the exercise of liberty. The Constitution does not contain aseparate article telling us that privacy has been declared to be afundamental right. Nor have we tagged the provisions of PartIII with an alpha-suffixed right to privacy: this is not an act ofjudicial redrafting. Dignity cannot exist without privacy. Bothreside within the inalienable values of life, liberty and freedomwhich the Constitution has recognised. Privacy is the ultimateexpression of the sanctity of the individual. It is constitutionalvalue which straddles across the spectrum of fundamental rightsand protects for the individual zone of choice and self-determination.”

xxx xxx xxx

“482. Shri Sundaram has argued that rights have to be traceddirectly to those expressly stated in the fundamental rights chapter

CDEF

of the Constitution for such rights to receive protection, andprivacy is not one of them. It will be noticed that the dignity ofthe individual is cardinal value, which is expressed in thePreamble to the Constitution. Such dignity is not expressly statedas right in the fundamental rights chapter, but has been readinto the right to life and personal liberty. The right to live withdignity is expressly read into Article 21 by the judgment in JollyGeorge Varghese v. Bank of Cochin [Jolly GeorgeVarghese v. Bank of Cochin, (1980) 2 SCC 360], at para 10.Similarly, the right against bar fetters and handcuffing beingintegral to an individual’s dignity was read into Article 21 by thejudgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. DelhiAdmn., (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 dayto canvas that fundamental right must be traceable to expresslanguage in Part III of the Constitution. As will be pointed outlater in this judgment, Constitution has to be read in such waythat words deliver up principles that are to be followed and if thisis kept in mind, it is clear that the concept of privacy is containednot merely in personal liberty, but also in the dignity of theindividual.”

xxx xxx xxx

“525. But most important of all is the cardinal value of fraternitywhich 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 Républicaine, whichhe edited, as follows: “Any man aspires to liberty, to equality, buthe cannot achieve it without the assistance of other men, withoutfraternity.” Many of our decisions recognise human dignity asbeing an essential part of the fundamental rights chapter. Forexample, see Prem Shankar Shukla v. Delhi Admn., (1980) 3SCC 526 at para 21, Francis Coralie Mullin v. UT of Delhi,(1981) 1 SCC 608 at paras 6, 7 and 8, Bandhua MuktiMorcha v. Union of India, (1984) 3 SCC 161 at para10, Maharashtra University of Health Sciences v. SatchikitsaPrasarak Mandal, (2010) 3 SCC 786 at para

37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC761 at para 37.] The dignity of the individual encompasses theright of the individual to develop to the full extent of his potential.And this development can only be if an individual has autonomyover fundamental personal choices and control over disseminationof personal information which may be infringed through anunauthorised use of such information. It is clear that Article 21,more than any of the other articles in the fundamental rightschapter, reflects each of these constitutional values in full, and isto be read in consonance with these values and with theinternational covenants that we have referred to. In the ultimateanalysis, the fundamental right to privacy, which has so manydeveloping facets, can only be developed on case-to-case basis.Depending upon the particular facet that is relied upon, eitherArticle 21 by itself or in conjunction with other fundamental rightswould get attracted.”

The dignity of the individual, which is spoken of in the Preamble to theConstitution of India, is facet of Article 21 of the Constitution. Astatutory provision belonging to the hoary past which demeans ordegrades the status of woman obviously falls foul of modernconstitutional doctrine and must be struck down on this ground also.

27. When we come to the decision of this Court in Yusuf AbdulAziz (supra), it is clear that this judgment also does not, in any manner,commend itself or keep in tune with modern constitutional doctrine. Inany case, as has been held above, its ratio is an extremely limited one asit upheld wife not being punishable as an abettor which is contained inSection 497, IPC. The focus on whether the provision as whole wouldbe constitutionally infirm was not there in the aforesaid judgment.

At this stage, it is necessary to advert to Chief Justice Chagla’s foresightin the Bombay High Court judgment which landed up in appeal beforethis Court in Yusuf Abdul Aziz’s (supra). Chief Justice Chagla hadstated that since the underlying idea of Section 497 is that wives areproperties of their husbands, Section 497 should not find place in anymodern Code of law, and is an argument in favour of doing away withSection 497 altogether. The day has long since arrived when the Sectiondoes, in fact, need to be done away with altogether, and is being doneaway with altogether.

A28. In Sowmithri Vishnu (supra), this Court upheld Section 497while repelling three arguments against its continuance, as has beennoticed hereinabove. This judgment also must be said to be swept awayby the tidal wave of recent judgments expanding the scope of thefundamental rights contained in Articles 14, 15, and 21. Ancient notionsof the man being the seducer and the woman being the victim permeateBthe judgment, which is no longer the case today. The moving times havenot left the law behind as we have just seen, and so far as engaging theattention of law makers when reform of penal law is undertaken, wemay only hasten to add that even when the CrPC was fully replaced in1973, Section 198 continued to be on the statute book. Even as of today,CSection 497 IPC continues to be on the statute book. When these sectionsare wholly outdated and have outlived their purpose, not only does themaxim of Roman law, cessante ratione legis, cessat ipsa lex, apply tointerdict such law, but when such law falls foul of constitutional guarantees,it is this Court’s solemn duty not to wait for legislation but to strike down

such law. As recently as in Shayara Bano (supra), it is only the minorityDview of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait forthe law to change legislatively by way of social reform. The majorityview was the exact opposite, which is why Triple Talaq was foundconstitutionally infirm and struck down by the majority. Also, we are ofthe view that the statement in this judgment that stability of marriages isEnot an ideal to be scorned, can scarcely be applied to this provision, aswe have seen that marital stability is not the object for which this provisionwas enacted. On all these counts, therefore, we overrule the judgmentin Sowmithri Vishnu (supra). Equally, the judgment in V. Revathi(supra), which upheld the constitutional validity of Section 198 must, forsimilar reasons, be held to be no longer good law. We, therefore, declareFthat Section 497 of the Indian Penal Code, 1860 and Section 198 of theCode of Criminal Procedure, 1973 are violative of Articles 14, 15(1),and 21 of the Constitution of India and are, therefore, struck down asbeing invalid.

GDR. D. Y. CHANDRACHUD, J.

INDEX

AGender: the discursive struggle

BJudicial discourse on adulteryH

CRelics of the past

DAcross frontiers

EConfronting patriarchy

F‘The Good Wife’

F.1 The entrapping cage

GDenuding identity - women as sexual property

G.1Exacting fidelity: the intimacies of marriage

Towards transformative justice

AGender: the discursive struggle

1. Our Constitution is repository of rights, celebration of myriadfreedoms and liberties. It envisages the creation of society where theideals of equality, dignity and freedom triumph over entrenched prejudicesand injustices. The creation of just, egalitarian society is process. Itoften involves the questioning and obliteration of parochial social moreswhich are antithetical to constitutional morality. The case at hand enjoinsthis constitutional court to make an enquiry into the insidious permeationof patriarchal values into the legal order and its role in perpetuating genderinjustices.

2. Law and society are intrinsically connected and oppressivesocial values often find expression in legal structures. The law influencessociety as well but societal values are slow to adapt to leads shown bythe law. The law on adultery cannot be construed in isolation. To fullycomprehend its nature and impact, every legislative provision must beunderstood as ‘discourse’ about social structuring.[1] However, thediscourse of law is not homogenous.[2] In the context particularly of Section497, it regards individuals as ‘gendered citizens’.[3] In doing so, the lawcreates and ascribes gender roles based on existing societal stereotypes.An understanding of law as ‘discourse’ would lead to the recognitionof the role of law in creating ‘gendered identities’.[4]

1 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements withLaw in India, Sage Publications (1996) at page 40

2 Ibid at page 41

3 Ibid

4 Ibid

A3. Over the years, legal reform has had significant role in alteringthe position of women in societal orderings. This is seen in mattersconcerning inheritance and in the protection against domestic violence.However, in some cases, the law operates to perpetuate an unequalworld 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.BScholar Patricia Williams, who has done considerable work on the criticalrace theory, is sanguine about the possibility of law engenderingprogressive social transformation:

“It is my deep belief that theoretical legal understanding andsocial transformation need not be oxymoronic”[5]C

The Constitution, both in text and interpretation, has played significantrole in the evolution of law from being an instrument of oppression tobecoming one of liberation. Used in liberal perspective, the law canenhance democratic values. As an instrument which preserves the statusquo on the other hand, the law preserves stereotypes and legitimisesDunequal relationships based on pre-existing societal discrimination.Constantly evolving, law operates as an important “site for discursivestruggle”, where ideals compete and new visions are shaped.[6] In regardinglaw as “site of discursive struggle”, it becomes imperative to examinethe institutions and structures within which legal discourse operates:[7]E“The idea of neutral dialogue is an idea which denies history,denies structure, denies the positioning of subjects.”[8]

In adjudicating on the rights of women, the Court must not lose sight ofthe institutions and values which have forced women to shackledexistence so far. To fully recognise the role of law and society in shapingFthe lives and identities of women, is also to ensure that patriarchal socialvalues and legal norms are not permitted to further obstruct the exerciseof constitutional rights by the women of our country.

4. In the preceding years, the Court has evolved jurisprudenceof rights- granting primacy to the right to autonomy, dignity and individual

5 Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard UniversityPress (1991)

6 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements withLaw in India, Sage Publications (1996) at page 41

7 Ibid

8 Gayatri Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogies, RoutledgeH(1990)

choice. The right to sexual autonomy and privacy has been granted thestature of Constitutional right. In confronting the sources of genderedinjustice which threaten the rights and freedoms promised in ourConstitution, we set out to examine the validity of Section 497 of theIndian Penal Code. In doing so, we also test the constitutionality of moraland societal regulation of women and their intimate lives through the law.

BJudicial discourse on adultery

5. This Court, on earlier occasions, has tested the constitutionalityof Section 497 of the Indian Penal Code as well as Section 198(2) of theCode of Criminal Procedure.

Section 497 reads thus:

“Whoever has sexual intercourse with person who is and whomhe knows or has reason to believe to be the wife of another man,without the consent or connivance of that man, such sexualintercourse not amounting to the offence of rape, is guilty of theoffence of adultery, and shall be punished with imprisonment ofeither description for term which may extend to five years, orwith fine, or with both. In such case the wife shall not bepunishable 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 thanthe husband of the woman shall be deemed to be aggrieved byany offence punishable under section 497 or section 498 of thesaid Code: Provided that in the absence of the husband, someperson who had care of the woman on his behalf at the timewhen such offence was com- mitted may, with the leave of theCourt, make complaint on his behalf.”

6. The decision of the Constitution Bench in Yusuf Abdul Aziz vState of Bombay[9], arose from case where the appellant was beingprosecuted for adultery under Section 497. On complaint being filed,he moved the High Court to determine the constitutional question aboutthe validity of the provision, under Article 228. The High Court decidedagainst the appellant[10], but Chief Justice Chagla made an observationabout the assumption underlying Section 497:

9 1954 SCR 930

1 0 AIR 1951 Bom 470

A“Mr Peerbhoy is right when he says that the underlying idea ofSection 497 is that wives are properties of their husbands. Thevery fact that the offence is only cognizable with the consent ofthe husband emphasises that point of view. It may be arguedthat Section 497 should not find place in any modern Code oflaw. Days are past, when women were looked upon as propertyBby their husbands.”

narrow challenge was addressed before this Court. The judgment ofJustice Vivian Bose records the nature of the challenge:

“3. Under Section 497 the offence of adultery can only beCcommitted by man but in the absence of any provision to thecontrary the woman would be punishable as an abettor.

The last sentence in Section 497 prohibits this. It runs—

“In such case the wife shall not be punishable as an abettor”. Itis said that this offends Articles 14 and 15.”

DHence, the challenge was only to the prohibition on treating the wife asan abettor. It was this challenge which was dealt with and repelled onthe ground that Article 14 must be read with the other provisions of PartIII which prescribe the ambit of the fundamental rights. The prohibitionon treating the wife as an abettor was upheld as special provisionEwhich is saved by Article 15(3). The conclusion was that:

“5. Article 14 is general and must be read with the otherprovisions which set out the ambit of fundamental rights. Sex isa sound classification and although there can be no discriminationin general on that ground, the Constitution itself provides for specialFprovisions in the case of women and children. The two articlesread together validate the impugned clause in Section 497 of theIndian Penal Code.”

7. The challenge was to limited part of Section 497: that whichprohibited woman from being prosecuted as an abettor. Broader issuesGsuch as whether (i) the punishment for adultery violates Article 21; (ii)the statutory provision suffers from manifest arbitrariness; (iii) thelegislature has, while ostensibly protecting the sanctity of marriage,invaded the dignity of women; and (iv) Section 497 violates Article 15(1)by enforcing gender stereotypes were neither addressed before this Courtnor were they dealt with.H

This Court construed the exemption granted to women from criminalsanctions as ‘special provision’ for the benefit of women and thus,protected under Article 15(3) of the Constitution. In Union of India vElphinstone Spinning and Weaving Co. Ltd,[11] Constitution Benchof this Court held:

“17…When the question arises as to the meaning of certainprovision in statute it is not only legitimate but proper to readthat provision in its context. The context means the statute as awhole, the previous state of law, other statutes in pari materia,the general scope of the statute and the mischief that it wasintended to remedy…”[12]

It is of particular relevance to examine the mischief that the provisionintends to remedy. The history of Section 497 reveals that the law onadultery was for the benefit of the husband, for him to secure ownershipover the sexuality of his wife. It was aimed at preventing the womanfrom exercising her sexual agency. Thus, Section 497 was neverconceived to benefit women. In fact, the provision is steeped instereotypes about women and their subordinate role in marriage. Thepatriarchal underpinnings of the law on adultery become evident whenthe provision is considered as whole.

8. In the subsequent decision of the three judge Bench inSowmithri Vishnu v Union of India[13], the court proceeded on thebasis that the earlier decision in Yusuf Abdul Aziz had upheld Section497 against challenge based on Articles 14 and 15 of the Constitution.This is not correct reading or interpretation of the judgment.

9. Sowmithri Vishnu did as matter of fact consider the widerconstitutional challenge on the ground that after the passage of thirtyyears, “particularly in the light of the alleged social transformation in thebehavioural pattern of women in matters of sex”, it had become necessarythat the matter be revisited. Sowmithri Vishnu arose in situation wherea petition for divorce by the appellant against her husband on the groundof desertion was dismissed with the finding that it was the appellant whohad deserted her husband. The appellant’s husband then sued for divorceon the ground of desertion and adultery. Faced with this petition, the

1 1 (2001) 4 SCC 139

1 2 Ibid. at page 164

1 3 1985 Supp SCC 137

Aappellant urged that decree for divorce on the ground of desertion maybe passed on the basis of the findings in the earlier petition. She, however,opposed the effort of the husband to urge the ground of adultery. Whilethe trial court accepted the plea of the husband to assert the ground ofadultery, the High Court held in revision that decree of divorce wasliable to be passed on the ground of desertion, making it unnecessary toBinquire into adultery. While the petition for divorce was pending againstthe appellant, her husband filed complaint under Section 497 againstthe person with whom the appellant was alleged to be in an adulterousrelationship. The appellant then challenged the constitutional validity ofSection 497.

CThe judgment of the three judge Bench indicates that three grounds ofchallenge were addressed before this Court : first, while Section 497confers right on the husband to prosecute the adulterer, it does notconfer upon the wife to prosecute the woman with whom her husbandhas committed adultery; second, Section 497 does not confer right on

Dthe wife to prosecute her husband who has committed adultery withanother woman; and third, Section 497 does not cover cases where aman has sexual relations with an unmarried woman. The submissionbefore this Court was that the classification under Section 497 wasirrational and ‘arbitrary’. Moreover, it was also urged that while facially,the provision appears to be beneficial to woman, it is in reality basedEon 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 constitutionalchallenge by approaching the discourse on the denial of equality in formal,and rather narrow terms. Chandrachud, CJ speaking for the three judgeFBench observed that by definition, the offence of adultery can becommitted by man and not by woman. The court construed the pleaof the petitioner as amounting to suggestion that the definition shouldbe recast in manner that would make the offence gender neutral. Thecourt responded by observing that this was matter of legislative policyGand that the court could invalidate the provision only if constitutionalviolation is established. The logic of the court, to the effect that extendingthe ambit of statutory definition is matter which requires legislativechange is unexceptionable. The power to fashion an amendment to thelaw lies with the legislature. But this only leads to the conclusion that thecourt cannot extend the legislative prescription by making the offenceH

JOSEPH SHINE v. UNION OF INDIA

[DR. D. Y. CHANDRACHUD, J.]

gender neutral. It does not answer the fundamental issue as to whetherpunishment for adultery is valid in constitutional terms. The error inSowmithri Vishnu lies in holding that there was no constitutionalinfringement. The judgment postulates that:

“7…It is commonly accepted that it is the man who is the seducerand not the woman. This position may have undergone somechange over the years but it is for the Legislature to considerwhether Section 497 should be amended appropriately so as totake note of the “transformation” which the society hasundergone. The Law Commission of India in its Forty-secondReport, 1971, recommended the retention of Section 497 in itspresent form with the modification that, even the wife, who hassexual relations with person other than her husband, should bemade punishable for adultery. The suggested modification wasnot accepted by the Legislature. Mrs Anna Chandi, who was inthe minority, voted for the deletion of Section 497 on the groundthat “it is the right time to consider the question whether theoffence of adultery as envisaged in Section 497 is in tune withour present-day notions of woman’s status in marriage”. Thereport of the Law Commission shows that there can be twoopinions on the desirability of retaining provision like the onecontained in Section 497 on the statute book. But, we cannotstrike down that section on the ground that it is desirable to deleteit.”[14]

These observations indicate that the constitutional challenge wasaddressed purely from the perspective of the argument that Section 497is not gender neutral, in allowing only the man but not to the woman in asexual relationship to be prosecuted. The court proceeded on theassumption, which it regards as “commonly accepted that it is the manwho is the seducer and not the woman.” Observing that this positionmay have undergone some change, over the years, the decision holdsthat these are matters for the legislature to consider and that thedesirability of deleting Section 497 is not ground for invalidation.

11. The decision in Sowmithri Vishnu has left unanswered thefundamental challenge which was urged before the Court. Under Article14, the challenge was that the statutory provision treats woman purelyas the property of her husband. That woman is regarded no more than

1 4 Ibid. at page 141

Aas possession of her husband is evidenced in Section 497, in more thanone context. The provision stipulates that man who has sexualintercourse with the wife of another will not be guilty of offence if thehusband of the woman were to consent or, (worse still, to connive. Inthis, it is evident that the legislature attributes no agency to the woman.Whether or not man with whom she has engaged in sexual intercourseBis guilty of an offence depends exclusively on whether or not her husbandis consenting individual. No offence exists if her husband were toconsent. Even if her husband were to connive at the act, no offencewould be made out. The mirror image of this constitutional infirmity isthat the wife of the man who has engaged in the act has no voice orCagency under the statute. Again, the law does not make it an offence fora married man to engage in an act of sexual intercourse with singlewoman. His wife is not regarded by the law as person whose agencyand dignity is affected. The underlying basis of not penalising sexualact by married man with single woman is that she (unlike marriedwoman) is not the property of man (as the law would treat her to be ifDshe is married). Arbitrariness is writ large on the provision. The problemwith Section 497 is not just matter of under inclusion. The court inSowmithri Vishnu recognised that an under-inclusive definition is notnecessarily discriminatory and that the legislature is entitled to deal withthe evil where it is felt and seen the most. The narrow and formal senseEin which the provisions of Article 14 have been construed is evidentagain from the following observations:

“8…The contemplation of the law, evidently, is that the wife,who is involved in an illicit relationship with another man, is avictim and not the author of the crime. The offence of adultery,Fas defined in Section 497, is considered by the Legislature as anoffence against the sanctity of the matrimonial home, an actwhich is committed by man, as it generally is. Therefore, thosemen who defile that sanctity are brought within the net of thelaw. In sense, we revert to the same point: Who can prosecutewhom for which offence depends, firstly, on the definition of theGoffence and, secondly, upon the restrictions placed by the law ofprocedure on the right to prosecute.”[15]

The decision of the three judge Bench does not address the centralchallenge to the validity of Section 497. Section 497, in its effort to

H1 5 Ibid. at page 142

protect the sanctity of marriage, has adopted notion of marriage whichdoes not regard the man and the woman as equal partners. It proceedson the subjection of the woman to the will of her husband. In doing so,Section 497 subordinates the woman to position of inferiority therebyoffending her dignity, which is the core of Article 21. Significantly, eventhe challenge under Article 21 was addressed on behalf of the petitionerin that case in rather narrow frame. The argument before this Courtwas that at the trial involving an offence alleged to have been committedunder Section 497, the woman with whom the accused is alleged tohave had sexual intercourse would have no right of being heard. It wasthis aspect alone which was addressed in Sowmithri Vishnu when thecourt held that such right of being heard can be read in an appropriatecase. Ultimately, the court held that:

“12…It is better, from the point of view of the interests of thesociety, that at least limited class of adulterous relationships ispunishable by law. Stability of marriages is not an ideal to bescorned.”[16]

Sowmithri Vishnu has thus proceeded on the logic that in specifying anoffence, it is for the legislature to define what constitutes the offence.Moreover, who can prosecute and who can be prosecuted, are matterswhich fall within the domain of the law. The inarticulate major premiseof the judgment is that prosecution for adultery is an effort to protect thestability of marriages and if the legislature has sought to prosecute onlya limited class of ‘adulterous relationships’, its choice could not bequestioned. ‘Sowmithri Vishnu’fails to deal with the substantive aspectsof constitutional jurisprudence which have bearing on the validity ofSection 497: the guarantee of equality as real protection againstarbitrariness, the guarantee of life and personal liberty as an essentialrecognition of dignity, autonomy and privacy and above all gender equalityas cornerstone of truly equal society. For these reasons, the decisionin Sowmithri Vishnu cannot be regarded as correct exposition of theconstitutional position. Sowmithri Vishnu is overruled.

12. The decision of two judge Bench in V Revathi v Union ofIndia[17] involved challenge to Section 497 (read with Section 198(2) ofthe Code of Criminal Procedure) which disables wife from prosecutingher husband for being involved in an adulterous relationship. The court

1 6 Ibid. at page 1441 7 (1988) 2 SCC 72

Anoted that Section 497 permits neither the husband of the offending wifeto prosecute her nor does it permit the wife to prosecute her offendinghusband for being disloyal. This formal sense of equality foundacceptance by the court. The challenge was repelled by relying on thedecision in Sowmithri Vishnu. Observing that Section 497 and Section198(2) constitute “legislative packet”, the court observed that theBprovision does not allow either the wife to prosecute an erring husbandor husband to prosecute the erring wife. In the view of the court, thisindicated that there is no discrimination on the ground of sex. In the viewof the court :

“5…The law does not envisage the punishment of any of theCspouses at the instance of each other. Thus there is nodiscrimination against the woman insofar as she is not permittedto prosecute her husband. husband is not permitted becausethe wife is not treated as an offender in the eye of law. The wifeis not permitted as Section 198(1) read with Section 198(2) doesDnot permit her to do so. In the ultimate analysis the law hasmeted out even-handed justice to both of them in the matter ofprosecuting each other or securing the incarceration of eachother. Thus no discrimination has been practised in circumscribingthe scope of Section 198(2) and fashioning it so that the right toprosecute the adulterer is restricted to the husband of theEadulteress but has not been extended to the wife of theadulterer.”[18]

13. The decision in Revathi is reiteration of Sowmithri Vishnu.It applies the doctrine of equality and the prohibition against discriminationon the ground of sex in formalistic sense. The logic of the judgment isFthat since neither of the spouses (man or woman) can prosecute theerring spouse, the provision does not discriminate on the ground of sex.Apart from reading equality in narrow confine, the judgment does notdeal with crucial aspects bearing on the constitutionality of the provision.Revathi, like Sowmithri Vishnu does not lay down the correct legalGprinciple.

CRelics of the past

“Our Massachusetts magistracy…have not been bold to put inforce the extremity of our righteous law against her. The penalty

H1 8 Ibid. at page 76

thereof is death. But in their great mercy and tenderness of heartthey have doomed Mistress Prynne to stand only space ofthree hours on the platform of the pillory, and then and thereafter,for the remainder of her natural life to wear mark of shameupon her bosom.”[19]

14. Section 497 of the Indian Penal Code, 1860 makes adultery apunishable offence against “whoever has sexual intercourse with personwho is and whom he knows or has reason to believe to be the wife ofanother man, without the consent or connivance of that man.” It goes onto state that, “in such case the wife shall not be punishable as an abettor.”The offence applies only to the man committing adultery. womancommitting adultery is not considered to be an “abettor” to the offence.The power to prosecute for adultery rests only with the husband of thewoman.

Understanding the gendered nature of Section 497 needs an inquiry intothe origins of the provision itself as well as the offence of adultery morebroadly. The history of adultery throws light upon disparate attitudestoward male and female infidelity, and reveals the double standard inlaw and morality that has been applied to men and women.[20]

15. Throughout history, adultery has been regarded as an offence;it has been treated as religious transgression, as crime deservingharsh punishment, as private wrong, or as combination of these.[21]The earliest recorded injunctions against adultery are found in the ancientcode of the Babylonian king Hammurabi, dating from circa 1750 B.C.The code prescribed that married woman caught in adultery be boundto her lover and thrown into water so that they drown together.[22] Bycontrast, Assyrian law considered adultery to be private wrong forwhich the husband or father of the woman committing adultery couldseek compensation from her partner.[23] English historian FaramerzDabhoiwala notes that the primary purpose of these laws was to protectthe property rights of men:

1 9 Nathaniel Hawthorne, The Scarlet Letter, Bantam Books (1850), at page 59

2 0 See David Turner, Adultery in The Oxford Encyclopaedia of Women in World History(2008)

2 1 Ibid

2 2 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 10

2 3 Ibid, at page 11

A“Indeed, since the dawn of history every civilisation had prescribedsevere laws against at least some kind of sexual immorality. Theoldest surviving legal codes (c.2100-1700 BCE), drawn up bythe kings of Babylon made adultery punishable by death andmost other near Eastern and classical culture also treated it as aserious offence…The main concern of such laws was usually toBuphold the honour and property rights of fathers, husbands andhigher status groups…”[24]

16. In Ancient Greco-Roman societies, there existed sexualdouble standard according to which adultery constituted violation of ahusband’s exclusive sexual access to his wife, for which the law allowedCfor acts of revenge.[25] In 17 B.C., Emperor Augustus passed the LexJulia de adulteriis coercendis, which stipulated that father was allowedto kill his daughter and her partner when caught committing adultery inhis or her husband’s house.[26] While in the Judaic belief adultery meriteddeath by stoning for both the adulteress and her partner,[27] ChristianityDviewed adultery more as moral and spiritual failure than as publiccrime.[28] The penalties of the Lex Julia were made more severe byChristian emperors. Emperor Constantine, for instance, introduced thedeath penalty for adultery, which allowed the husband the right to kill hiswife if she committed adultery.[29] Under the Lex Julia, adultery wasprimarily female offence, and the law reflected the sentiments of upper-Eclass Roman males.[30]

17. Once monogamy came to be accepted as the norm in Britainbetween the fourth and fifth centuries, adultery came to be recognizedas serious wrong that interfered with husband’s “rights” over hiswife.[31] The imposition of criminal sanctions on adultery was also largelyF

2 4 Faramerz Dabhoiwala, The Origins of Sex: History of the First Sexual Revolution(2012), at page 5

2 5 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History(2008), at page 30

2 6 Vern Bullough, Medieval Concepts of Adultery, at page 7

2 7 The Oxford Encyclopaedia of Women in World History, (Bonnie Smith ed.),GOxford, at page 27

2 8 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, Vol. 30,Journal of Family Law (1991), at page 46

2 9 Vern Bullough, Medieval Concepts of Adultery, at page 7

3 0 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 273 1 Jeremy D. Weinstein, Adultery, Law, and the State: History, Vol. 38, Hastings LawJournal (1986), at page 202; R. Huebner, History of Germanic Private Law (F.HPhilbrick trans. 1918)

based on ideas and beliefs about sexual morality which acquired theforce of law in Christian Europe during the Middle Ages.[32] Thedevelopment of canon law in the twelfth century enshrined the perceptionof adultery as spiritual misdemeanour. In the sixteenth century, followingthe Reformation, adultery became crucial issue because Protestantsplaced new emphasis on marriage as linchpin of the social and moralorder.[33] Several prominent sixteenth century reformers, including MartinLuther and John Calvin, argued that marriage was irreparably damagedby infidelity, and they advocated divorce in such cases.[34]

Concerned with the “moral corruption” prevalent in England since theReformation, Puritans in the Massachusetts Bay Colony introduced thedeath penalty for committing adultery.[35] The strict morality of the earlyEnglish colonists is reflected in the famous 1850 novel ‘The Scarlet Letter’by Nathaniel Hawthorne, in which an unmarried woman who committedadultery and bore child out of wedlock was made to wear the letter A(for adulterer) when she went out in public; her lover was not so tagged,suggesting that women were punished more severely than men foradultery, especially when they had child as evidence.[36]

18. In 1650, England enacted the infamous Act for Suppressingthe Detestable Sins of Incest, Adultery and Fornication, which introducedthe death penalty for sex with married woman.[37] The purpose of theAct was as follows:

“For the suppressing of the abominable and crying sinsof…adultery… wherewith this Land is much defiled, andAlmighty God highly displeased; be it enacted...That in case anymarried woman shall…be carnally known by any man (otherthan her husband)…as well the man as the woman…shall sufferdeath.”

The Act was culmination of long-standing moral concerns about sexualtransgressions, sustained endeavours to regulate conjugal matters on

3 2 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6

3 3 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History(2008), at page 303 4 Ibid.

3 5 The Oxford Encyclopaedia of Women in World History, (Bonnie Smith ed.),Oxford, at page 30

3 6 James R. Mellow, Hawthorne’s Divided Genius, The Wilson Quarterly (1982)

3 7 Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Formingof American Society (1996).

Asecular plain, and contemporaneous political agenda of socio-moralreform.[38] It was repealed in 1660 during the Restoration. The commonlaw, however, was still concerned with the effect of adultery by marriedwoman on inheritance and property rights. It recognized the “obviousdanger of foisting spurious offspring upon her unsuspecting husband andbringing an illegitimate heir into his family.”[39 ]Accordingly, secular courtsBtreated adultery as private injury and tort for criminal conversationwas introduced in the late 17[th] century, which allowed the husband tosue his wife’s lover for financial compensation.[40]19. In 19[th] century Britain, married women were considered to bechattel of their husbands in law, and female adultery was subjected toCostracism far worse than male adultery because of the problem it couldcause for property inheritance through illegitimate children.[41]Consequently, many societies viewed chastity, together with related virtuessuch as modesty, as more central components of woman’s honor andreputation than of man’s.[42] The object of adultery laws was not toDprotect the bodily integrity of woman, but to allow her husband toexercise control over her sexuality, in order to ensure the purity of hisown bloodline. The killing of man engaged in an adulterous act withone’s wife was considered to be manslaughter, and not murder.[43 ] In R vMawgridge,[44] Judge Holt wrote that:

E“…[A] man is taken in adultery with another man’s wife, if thehusband shall stab the adulterer, or knock out his brains, this isbare manslaughter: for Jealousy is the Rage of Man andAdultery is the highest invasion of property.” (Emphasissupplied)

F3 8 Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Puritansand Revolutionaries: Essays in Seventeenth-Century History Presented toChristopher Hill (Donald Pennington, Keith Thomas, eds.), at page 281

3 9 Charles E. Torcia, Wharton’s Criminal Law, Section 218, (1994) at page 528

4 0 J. E. Loftis, Congreve’s Way of the World and Popular Criminal Literature, Studiesin English Literature, 1500 – 1900 36(3) (1996), at page 293G4 1 Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (2009), at page 143

4 2 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History(2008), at page 28

4 3 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at page 191-1924 4 (1707) Kel. 119H

20. In his Commentaries on the Laws of England, WilliamBlackstone wrote that under the common law, “the very being or legalexistence of the woman [was] suspended during the marriage, or atleast [was] incorporated and consolidated into that of the husband: underwhose wing, protection and cover, she performe[d] everything.”[45] Inreturn for support and protection, the wife owed her husband “consortium”of legal obligations, which included sexual intercourse.[46] Since adulteryinterfered with the husband’s exclusive entitlements, it was consideredto be the “highest possible invasion of property,” similar to theft.[47 ]Infact, civil actions for adultery evolved from actions for enticing away aservant from master and thus depriving the master of the quasi-proprietary interest in his services.[48]

Faramerz Dabhoiwala notes that man’s wife was considered to be hisproperty, and that another man’s “unlawful copulation” with her warrantedpunishment:

“…[T]he earliest English law codes, which date from this time,evoke society where women were bought and sold and livedconstantly under the guardianship of men. Even in cases ofconsensual sex, its system of justice was mainly concerned withthe compensation one man should pay to another for unlawfulcopulation with his female chattel.”

21. When the IPC was being drafted, adultery was not criminaloffence in common law. It was considered to be an ecclesiastical wrong“left to the feeble coercion of the Spiritual Court, according to the rulesof Canon Law.”[49] Lord Thomas Babington Macaulay, Chairman of theFirst Law Commission of India and principal architect of the IPC,considered the possibility of criminalizing adultery in India, and ultimatelyconcluded that it would serve little purpose.[50] According to Lord

4 5 William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages442- 445

4 6 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power:Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), atpage 161

4 7 R v. Mawgridge, (1707) Kel. 119

4 8 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power:Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), atpage 161

4 9 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at pages 64-655 0 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law AndAdultery In India, Socio-Legal Review (2016), at page 52

AMacaulay, the possible benefits from an adultery offence could be betterachieved through pecuniary compensation.[51] Section 497 did not find aplace in the first Draft Penal Code prepared by Lord Macaulay. On anappraisal of the facts and opinions collected from all three Presidenciesabout the feasibility criminalizing adultery, he concluded in his Notes tothe IPC that:B

“…All the existing laws for the punishment of adultery arealtogether inefficacious for the purpose of preventing injuredhusbands of the higher classes from taking the law into theirown hands; secondly; that scarcely any native of higher classesever has recourse to the courts of law in case of adultery forCredress against either his wife, or her gallant; thirdly, that thehusbands who have recourse in case of adultery to the Courts oflaw are generally poor men whose wives have run away, thatthese husbands seldom have any delicate feelings about theintrigue, but think themselves injured by the elopement, that theyDconsider wives as useful members of their small households,that they generally complain not of the wound given to theiraffections, not of the stain on their honor , but of the loss of amenial whom they cannot easily replace, and that generally theirprincipal object is that the women may be sent back.” Thesethings being established, it seems to us that no advantageEis to be expected from providing punishment for adultery.We think it best to treat adultery merely as civil injury.”[52](Emphasis supplied)

22. The Law Commissioners, in their Second Report on the DraftPenal Code, disagreed with Lord Macaulay’s view. Placing heavyFreliance upon the status of women in India, they concluded that:

“While we think that the offence of adultery ought not to beomitted from the code, we would limit its cognizance to adulterycommitted with married woman, and considering that there ismuch weight in the last remark in note Q, regarding the conditionGof the women, in this country, in deference to it, we would renderthe male offender alone liable to punishment. We would, however,put the parties accused of adultery on trial “together”, and

5 1 Ibid.5 2 Macaulay’s Draft Penal Code (1837), Note QH

[DR. D. Y. CHANDRACHUD, J.]

empower the Court in the event of their conviction to pronouncea decree of divorce against the guilty woman, if the husbandsues for it, at the same time that her paramour is sentenced topunishment by imprisonment or fine.”[53]

The Law Commissioners’ decision to insert Section 497 into the IPCwas rooted in their concern about the possibility of the “natives” resortingto illegal measures to avenge the injury in cases of adultery:

“The backwardness of the natives to have recourse to the courtsof redress in cases of adultery, [Colonel Sleeman] asserts, “arisesfrom the utter hopelessness on their part of ever getting aconviction in our courts upon any evidence that such cases admitof;” that is to say, in courts in which the Mahommedan law isobserved. “The rich man…not only feels the assurance that hecould not get conviction, but dreads the disgrace of appearingpublicly in one court after another, to prove…his own shameand his wife’s dishonor. He has recourse to poison secretly, orwith his wife’s consent; and she will generally rather take it thanbe turned out into the streets degraded outcast. The seducerescapes with impunity, he suffers nothing, while his poor victimsuffers all that human nature is capable of enduring…The silenceof the Penal Code will give still greater impunity to the seducers,while their victims will, in three cases out of four, be murdered,or driven to commit suicide. Where husbands are in the habit ofpoisoning their guilty wives from the want of legal means ofredress, they will sometimes poison those who are suspectedupon insufficient grounds, and the innocent will suffer.”[54]

Section 497 and Section 198 are seen to treat men and women unequally,as women are not subject to prosecution for adultery, and women cannotprosecute their husbands for adultery. Additionally, if there is “consentor connivance” of the husband of woman who has committed adultery,no offence can be established. In its 42[nd] Report, the Law Commissionof India considered the legislative history of Section 497 and the purportedbenefit of criminal sanctions for adultery. The Committee concluded

5 3 Second Report on the Indian Penal Code (1847), at pages 134-35, cited from, LawCommission of India, Forty-second Report: Indian Penal Code, at page 365

5 4 Penal Code prepared by The Indian Law Commissioners (1838), The SecondReport on the Indian Penal Code, at page 74

Athat, “though some of us were personally inclined to recommend repealof the section, we think on the whole that the time has not yet come formaking such radical change in the existing position.”[55] It recommendedthat Section 497 be retained, but with modification to make womenwho commit adultery liable as well.

B23. In its 156[th] Report, the Law Commission made proposalwhich it believed reflected the “‘transformation’ which the society hasundergone,” by suggesting removing the exemption from liability forwomen under Section 497.[56] In 2003, the Justice Malimath Committeerecommended that Section 497 be made gender-neutral, by substitutingthe words of the provision with “whosoever has sexual intercourse withCthe spouse of any other person is guilty of adultery.”[57] The Committeesupported earlier proposals to not repeal the offence, but to equate liabilityfor the sexes:

“The object of the Section is to preserve the sanctity of marriage.Society abhors marital infidelity. Therefore, there is no reasonDfor not meting out similar treatment to the wife who has sexualintercourse with man (other than her husband).”[58]

Neither the recommendations of the Law Commission nor those of theMalimath Committee have been accepted by the Legislature. Thoughwomen are exempted from prosecution under Section 497, the underlyingnotion upon which the provision rests, which conceives of women asEproperty, is extremely harmful. The power to prosecute lies only withthe husband (and not to the wife in cases where her husband commitsadultery), and whether the crime itself has been committed depends onwhether the husband provides “consent for the allegedly adulterous act.”

24. Women, therefore, occupy liminal space in the law: theyFcannot be prosecuted for committing adultery, nor can they be aggrievedby it, by virtue of their status as their husband’s property. Section 497 isalso premised upon sexual stereotypes that view women as being passiveand devoid of sexual agency. The notion that women are ‘victims’ ofadultery and therefore require the beneficial exemption under SectionG497 has been deeply criticized by feminist scholars, who argue that suchan understanding of the position of women is demeaning and fails to

5 5 Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326

5 6 Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172

5 7 Report of the Committee on Reforms of Criminal Justice System (2003), at page 190H5 8 Ibid.

recognize them as equally autonomous individuals in society.[59] Effectively,Indian jurisprudence has interpreted the constitutional guarantee of sexequality as justification for differential treatment: to treat men andwomen differently is, ultimately, to act in women’s interests.[60 ] The statusof Section 497 as “special provision”[61] operating for the benefit ofwomen, therefore, constitutes paradigmatic example of benevolentpatriarchy.

25. Throughout history, the law has failed to ask the womanquestion.[62] It has failed to interrogate the generalizations or stereotypesabout the nature, character and abilities of the sexes on which laws rest,and how these notions affect women and their interaction with the law.A woman’s ‘purity’ and man’s marital ‘entitlement’ to her exclusivesexual possession may be reflective of the antiquated social and sexualmores of the nineteenth century, but they cannot be recognized as beingso today. It is not the “common morality” of the State at any time inhistory, but rather constitutional morality, which must guide the law. Inany democracy, constitutional morality requires the assurance of certainrights that are indispensable for the free, equal, and dignified existenceof all members of society. commitment to constitutional moralityrequires us to enforce the constitutional guarantees of equality beforelaw, non-discrimination on account of sex, and dignity, all of which areaffected by the operation of Section 497.

DAcross frontiers

26. The last few decades have been characterized by numerouscountries around the world taking measures to decriminalize the offenceof adultery due to the gender discriminatory nature of adultery laws aswell as on the ground that they violate the right to privacy. However,progressive action has primarily been taken on the ground that provisionspenalising adultery are discriminatory against women either patently onthe face of the law or in their implementation. Reform towards achievinga more egalitarian society in practice has also been driven by active

5 9 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law AndAdultery In India, Socio-Legal Review (2016), at page 63

6 0 Brenda Cossman and Ratna Kapur, Subversive Sites: Feminist Engagements withLaw in India (1996)

6 1 Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930

6 2 The ‘Woman Question’ was one of the great issues that occupied the middle of thenineteenth century, namely the social purpose of women. It is used as tool toenquire into the status of women in the law and how they interact with and areaffected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard LawReview (1990)

Ameasures taken by the United Nations and other international humanrights organizations, where it has been emphasized that even seeminglygender-neutral provisions criminalising adultery cast an unequal burdenon women:[63]

“Given continued discrimination and inequalities faced by women,Bincluding inferior roles attributed to them by patriarchal andtraditional attitudes, and power imbalances in their relations withmen, the mere fact of maintaining adultery as criminal offence,even when it applies to both women and men, means in practicethat women mainly will continue to face extreme vulnerabilities,and violation of their human rights to dignity, privacy and equality.”CThe abolishing of adultery has been brought about in equal measure bylegislatures and courts. When decisions have been handed down by thejudiciary across the world, it has led to the creation of rich body oftransnational jurisprudence. This section will focus on few selectcomparative decisions emanating from the courts of those countriesDwhere the provision criminalizing adultery has been struck down throughjudicial action. The decisions of these courts reflect how the treatmentof the law towards adultery has evolved with the passage of time and inlight of changing societal values.

27. In 2015, the South Korean Constitutional Court,[64 ]by majority

of 7-2 struck down Article 241 of the Criminal Law; provision whichEcriminalized adultery with term of imprisonment of two years asunconstitutional.In doing so, South Korea joined growing list of countriesin Asia and indeed around the world that have taken the measure ofeffacing the offence of adultery from the statute books, consideringevolving public values and societal trends. The Constitutional Court hadFdeliberated upon the legality of the provision four times previously[65], butchose to strike it down when it came before it in 2015, with the Court’sjudgement acknowledging the shifting public perception of individual rightsin their private lives.

6 3 U N Working Group on Women’s Human Rights: Report (18 October, 2012), availableGa t : t t p : / / n w s r i v . o r. o r / N / N w s v n t s / P s /DisplayNews.aspx?NewsID=12672&LangID=E

6 4 Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court(February 26, 2015), available at http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do

6 5 Firstpost, South Korean court abolishes law that made adultery illegal, (February26, 2015), available at https://www.firstpost.com/world/south-korean-court-Habolishes-law-saying-adultery-is-illegal-2122935.html

The majority opinion of the Court was concurred with by five of theseven judges[66] who struck down the provision. The majorityacknowledged that the criminal provision had legitimate legislativepurpose in intending “to promote the marriage system based on goodsexual culture and practice and monogamy and to preserve marital fidelitybetween spouses.” However, the Court sought to strike balancebetween the legitimate interest of the legislature in promoting the institutionof marriage and marital fidelity vis-à-vis the fundamental right of anindividual to self-determination, which included sexual-self-determination,and was guaranteed under Article 10 of their Constitution.[67] The Courtheld:“The right to self-determination connotes the right to sexual self-determination that is the freedom to choose sexual activities andpartners, implying that the provision at issue restricts the right tosexual self-determination of individuals. In addition, the provisionat Issue also restricts the right to privacy protected under Article17 of the Constitution in that it restricts activities arising out of

sexual life belonging to the intimate private domain.”

The Court used the test of least restrictiveness, and began byacknowledging that there no longer existed public consensus on thecriminalization of adultery, with the societal structure having changedfrom holding traditional family values and typeset role of familymembers to sexual views driven by liberal thought and individualism.While recognizing that marital infidelity is immoral and unethical, theCourt stated that love and sexual life were intimate concerns, and theyshould not be made subject to criminal law.Commenting on the balancebetween an individual’s sexual autonomy vis-à-vis societal morality, theCourt remarked:

“…the society is changing into one where the private interest ofsexual autonomy is put before the social interest of sexual moralityand families from the perspective of dignity and happiness ofindividuals.”[68]

6 6 Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong,Justice Seo Ki-Seog and Justice Cho Yong-Ho (Adultery is Unconstitutional)

6 7 Article 10 of the South Korean Constitution “All citizens are assured of humanworth and dignity and have the right to pursue happiness. It is the duty of the Stateto confirm and guarantee the fundamental and inviolable human rights of individuals.”6 8 Supra, note 64, Part V- (3)(1) (‘Change in Public’s Legal Awareness’ under the headof ‘Appropriateness of Means and Least Restrictiveness’)

ANext, the Court analysed the appropriateness and effectiveness of criminalpunishment in curbing the offence of adultery. Addressing the questionof whether adultery should be regulated, the Court stated that moderncriminal law dictated that the State should not seek to interfere in an actthat is not socially harmful or deleterious to legal interests, simply becauseit is repugnant to morality. Moreover, it held that the State had no businessBin seeking to control an individual’s actions which were within the sphereof his or her constitutionally protected rights of privacy and self-determination.

Moving on to the effectiveness of the provision at hand, the Courtremarked that criminalizing adultery did not help save failing marriage.CThe Court remarked that it was obvious that once spouse was accusedof adultery, the consequence was generally intensified spousal conflictas opposed to the possibility of family harmony:

“Existing families face breakdown with the invoking of the rightto file an accusation. Even after cancellation of the accusation,Dit is difficult to hope for emotional recovery between spouses.Therefore, the adultery crime can no longer contribute toprotecting the marital system or family order. Furthermore, thereis little possibility that person who was punished for adulterywould remarry the spouse who had made an accusation againstEhimself/herself. It is neither possible to protect harmonious familyorder because of the intensified conflict between spouses in theprocess of criminal punishment of adultery.”[69]

Addressing the concern that an abolition of penal consequence wouldresult in “chaos in sexual morality” or an increase of divorce due toFadultery, the Court concluded that there was no data at all to supportthese claims in countries where adultery is repealed, stating:

“Rather, the degree of social condemnation for adultery has beenreduced due to the social trend to value the right to sexual self-determination and the changed recognition on sex, despite of theGpunishment of adultery. Accordingly, it is hard to anticipate ageneral and special deterrence effect for adultery from theperspective of criminal policy as it loses the function of regulatingbehaviour.”[70]

6 9 Supra, note 64, Part V- (3)(3) (‘Effectiveness of Criminal Punishment’, under thehead of ‘Appropriateness of Means and Least Restrictiveness’)H7 0 Ibid.

The Court also analysed the argument that adultery provisions protectedwomen:

“It is true that the existence of adultery crimes in the past Koreansociety served to protect women. Women were socially andeconomically underprivileged, and acts of adultery were mainlycommitted by men. Therefore, the existence of an adultery crimeacted as psychological deterrence for men, and, furthermore,enabled female spouses to receive payment of compensationfor grief or divided assets from the male spouse on the conditionof cancelling the adultery accusation.

However, the changes of our society diluted the justification ofcriminal punishment of adultery. Above all, as women’s earningpower and economic capabilities have improved with more activesocial and economic activities, the premise that women are theeconomically disadvantaged does not apply to all marriedcouples.”

Finally, the Court concluded its analysis by holding that the interests ofenforcing monogamy, protecting marriage and promoting marital fidelity,balanced against the interference of the State in the rights to privacyand sexual autonomy were clearly excessive and therefore failed thetest of least restrictiveness.[71]

28. In 2007, the Ugandan Constitutional Court in Law Advocacyfor Women in Uganda v Attorney General of Uganda[72], was calledupon to rule on the constitutionality of Section 154 of the Penal Code, on,the grounds that it violated various protections granted by the UgandanConstitution and meted out discriminatory treatment between womenand men. The law as it stood allowed married man to have sexualrelationship with an unmarried woman. Moreover, only man could beguilty of the offence of adultery when he had sexual intercourse with amarried woman. The same provision, however, penalized married womanwho engaged in sexual relationship with an unmarried or married manoutside of the marriage. The penalties for the offence also prescribed amuch stricter punishment for women as compared to their male

7 1 Supra, note 64, Part V- (5) (‘Balance of Interests & Conclusion’)

7 2 Constitutional Petitions Nos. 13 /05 /& 05 /06 inLaw Advocacy for Women inUganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007), availableat

https://ulii.org/ug/judgment/constitutional-court/2007/1

Acounterparts.[73] The challenge was brought primarily under Article 21 ofthe Ugandan Constitution, which guaranteed equality under the law,Article 24 which mandates respect for human dignity and protectionfrom inhuman treatment and Article 33(1), which protected the rights ofwomen under the Constitution. [74]

BThe Respondent prayed that the Court consider making the provision ofadultery equal in its treatment of men and women, instead of striking itdown completely. However, in its holding, the Court denied this request,holding it could not prescribe punishment under penal law to changethe statute. The Court held that Section 154 of the Penal Code waswholly unconstitutional as being violative of the provisions of theCConstitution, and remarked:

“...the respondent did not point out to us areas that his Court canor should modify and adapt to bring them in conformity with theprovisions of the Constitution. The section is penal one and thisCourt in our considered opinion cannot create sentence thatDthe courts can impose on adulterous spouses.Consequently, it is our finding that the provision of section 154 ofthe Penal Code Act is inconsistent with the stated provisions ofthe Constitution and it is void.”[75]

29. In 2015, in DE v RH,[76] the Constitutional Court of South AfricaEheld that an aggrieved spouse could no longer seek damages against athird party in cases of adultery. Madlanga J poignantly remarked on thepreservation of marriage:

“…although marriage is ‘a human institution which is regulatedby law and protected by the Constitution and which, in turn,creates genuine legal duties . . . Its essence . . . consists in theFreadiness, founded in morals, of the parties to the marriage tocreate and to maintain it’. If the parties to the marriage have lostthat moral commitment, the marriage will fail and punishment

meted out to third party is unlikely to change that.”[77]

73 Reuters: ‘Uganda scraps “sexist” adultery law’, (April 5, 2007), available at https:/G/www.reuters.com/article/us-uganda-adultery/uganda-scraps-sexist-adultery-law-idUSL0510814320070405

74 Constitutional Petitions Nos. 13 /05 /& 05 /06 inLaw Advocacy for Women inUganda v. Attorney General of Uganda, [2007] UGCC 1 (5 April, 2007), availableat https://ulii.org/ug/judgment/constitutional-court/2007/175 Ibid.76 DE v RH, [2015] ZACC 18H77 Ibid, at para 34

The decisions of the US Supreme Court bearing on the issue of privacyhave been analysed in an incisive article, titled “For Better or for Worse:Adultery, Crime and The Constitution”[78], by Martin Siegel. He presentsthree ways in which adultery implicates the right to privacy. The first isthat adultery must be viewed as constitutionally protected marital choice.Second, that certain adulterous relationships are protected by the freedomof association and finally, that adultery constitutes an action which isprotected by sexual privacy.[79] brief study is also undertaken on whetheraction penalizing adultery constitutes legitimate interest of the State.

The first privacy interest in adultery is the right to marital choice. TheU.S. Supreme Court has upheld the values of ‘fundamental liberty’,‘freedom of choice’ and ‘the ‘right to privacy’ in marriage. With thisjurisprudence, the author argues, it would be strange if decision tocommit adultery is not treated as matter of marriage and family lifeas expressed in Cleveland Board[80], ‘an act occurring in marriage’, asheld in Griswold[81] or ‘matter of marriage and family life’ as elucidatedinCarey.[82]

Siegel posits that decision to commit adultery is decision ‘relating tomarriage and family relationships’ and therefore, falls within the domainof protected private choices. He observes that the essence of the offenceis in fact the married status of one of the actors, and the mere fact thatthe commission of the act consisted of mere sexual act or series ofthem is legally irrelevant. If the argument that adultery, thoughunconventional, is an act related to marriage and therefore fundamentallyprivate is accepted, then it deserves equal protection. Siegel citesLaurence Tribe, on accepting the ‘unconventional variants’ that also forma part of privacy:“Ought the “right to marriage,” as elucidated by Griswold, Lovingv. Virginia, Zablocki, Boddie v. Connecticut and Moore, alsoinclude marriage’s “unconventional variants”-in this case theadulterous union?”[83]

7 8 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,Journal of Family Law, Vol.30, (1991) 45

7 9 Ibid, at page 46

8 0 Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973)

8 1 Griswold, 381 U.S. 1 (1967)

8 2 Carey, v. Population Serv. Int’l, 431 U.S. 678

8 3 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,Journal of Family Law, Vol.30, (1991) 70

AThe mere fact that adultery is considered unconventional in society doesnot justify depriving it of privacy protection. The freedom of makingchoices also encompasses the freedom of making an ‘unpopular’ choice.This was articulated by Justice Blackmun in his dissent in Hardwick[84]:

“A necessary corollary of giving individuals freedom to chooseBhow to conduct their lives is acceptance of the fact that differentindividuals will make different choices.”[85]

Siegel concludes that the privacy protections afforded to marriage mustextend to all choices made within the marriage:

“The complexity and diversity among marriages make it all theCmore important that the privacy associated with that institutionbe construed to include all kinds of marriages, sexually exclusiveas well as open, ‘good’, as well as ‘bad’.”[86]

Siegel then proceeds to examine the next privacy interest in adultery,that of the right to association. The right to freedom of association hestates is ‘a close constitutional relative of privacy’[87], and they oftenDinteract in an intertwined manner. Siegel proceeds to explain that adulterymust not simply be looked at as an act of consensual adult sexual activity,as sexual activity may simply be one element in continuum ofinteractions between people:

“Sexual activity may be preliminary or incidental to developingEassociation, or it may be its final culmination and solidification.In either case, it is simply one more element of the relationship.Two people may have sex upon first meeting. In this case,associational interests seem less important, although “lovelessencounters are sometimes prerequisites for genuine loveFrelationships; to forbid the former is, therefore, to inhibit thelatter.”’[88]

Next, Siegel examines the plausible protection of adultery through thelens of the freedom of expression. Since the act of engaging in sexualactivity can be interpreted as being expressive, Siegel claims adulterymight also implicate First Amendment rights. In support he cites body

8 4 Hardwick, 478 U.S.205

8 5 Ibid, at page 206

8 6 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,Journal of Family Law, Vol.30, (1991) 74

8 7 Ibid, at page 77

H8 8 Ibid, at, page 78

of case law[89],where courts have held that First Amendment rights arenot limited to merely verbal expression but also encompass the right to‘expressive association’.

In concluding his section on the right to associate, Siegel warns againstthe dangers of classifying adultery solely as sexual activity, as doing sowould be akin to protecting part of the relationship and criminalizingthe other. This would be manifestly unjust:

“It is difficult, both theoretically and practically, to single out thesexual contacts two people may have from the rest of theirrelationship- to criminalize the one and constitutionally protectas fundamental the other”.[90]

Lastly, Siegel discusses the connection between adultery and the right tosexual privacy. It is accepted that right to privacy safeguards anindividual’s deeply personal choices which includes recognition accordedto the inherently private nature of all consensual adult sexual activity.[91]This understanding of sexual privacy found favour with the U.S. SupremeCourt, which in Thornburgh v American College of Obstetriciansand Gynaecologists[92 ]quoted Charles Fried with approval:

“The concept of privacy embodies the moral fact that personbelongs to himself and not to others nor to society as whole.”[93]

Siegel reiterates the underlying intangible value of adult consensual sexualactivity:

“The real importance of sexuality to humans, more so in today’sworld of effective birth control than ever, lies in the possibilitiesfor self-realization and definition inherent in sexual choices. Sexualexperience offers “self-transcendence, expression of privatefantasy, release of inner tensions, and meaningful and acceptableexpression of regressive desires to be again the free child -unafraid to lose control, playful, vulnerable, spontaneous, sensuallyloved.”[94]

8 9 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)

9 0 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,Journal of Family Law, Vol.30, (1991) 78

9 1 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,Journal of Family Law, Vol.30, (1991) 82

9 2 Thornburgh v. American College of Obstetricians and Gynaecologists, 476 U.S. 747(1986)

9 3 Ibid, at Page 777

9 4 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,Journal of Family Law, Vol.30, (1991) at page 85

AReflecting on the relationship between marital privacy and associationalfreedom, Spiegel remarks the “heterogeneity of experience”, resultingin variety of choices, necessarily include the adulterous union whichmust be protected since it is unrealistic to expect all individuals to conformto society’s idea of sexuality:

B“Because sex is so much part of our personhood, we shouldnot expect that people different in so many other ways will beidentical sexually. For some, adultery is cruel betrayal, whilefor others it is just comeuppance for years of spousal neglect. Insome marriages, sex is the epitome of commitment, while in othersspouses jointly and joyfully dispense with sexual monogamy.”[95]CIn concluding the author states that the foregoing three-layered analysisleft no room for doubt that adultery was matter of marriage. It thereforedeserved to be protected like all other affairs occurring in marriage andimplicated routine privacy-based freedoms, and it was imperative to treatis as such. Spiegel concludes by quoting the U.S. Supreme Court inDEisenstadt v Braid, on the importance of protecting the power to makea ‘bad’ choice in marriage:

“A marriage’s privacy and autonomy are the best routes tosafeguarding liberty and pluralism. This is no less true when thepower to choose, as it inevitably will, results in bad choices. It isa confidence in nothing less than the theory underscoring ourEentire political order: Our system of government requires thatwe have faith in the ability of the individual to decide wisely, ifonly he is fully appraised of the merits of the controversy.”[96]

While acknowledging the interest that the State has in preserving theinstitution of marriage, Siegel precisely points out the inefficacy ofFattaching criminal sanctions to adultery in the following words:

“Even if we accept that state is trying to foster the interests ofspecific deceived spouses by its laws criminalizing adultery, it isimpossible to believe that criminal penalty imposed on one ofthe spouses would somehow benefit marriage instead ofGrepresenting the final nail in its coffin. And if deterrence ofadultery is the goal, then the state’s failure to arrest and prosecuteoffenders has long since removed any fear of legal sanction.”[97]

9 5 Ibid, at Page 86

9 6 Eisenstadt v. Baird , 405 U.S. 438, 457 (1972)

9 7 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution,HJournal of Family Law, Vol.30, (1991) 89

Deborah L Rhode in her book titled “Adultery” argues that “intermittentidiosyncratic invocations of adultery prohibitions do little to enforce maritalvows or reinforce confidence in the rule of law. There are better waysto signal respect for the institution of marriage and better uses of lawenforcement than policing private, consensual sexual activity.”[98]

EConfronting patriarchy

“Norms and ideals arise from the yearning that it is anexpression of freedom: it does not have to be this way, itcould be otherwise.”[99]

30. The petitioner urged that (i) The full realisation of the ideal ofequality enshrined in Article 14 of the Constitution ought to be theendeavour of this Court; (ii) the operation of Section 497 is denial ofequality to women in marriage; and (iii) the provision is manifestly arbitraryand amounts to violation of the constitutional guarantee of substantiveequality.

The act which constitutes the offence under Section 497 of the PenalCode is man engaging in sexual intercourse with woman who is the“wife of another man”. For the offence to arise, the man who engagesin sexual intercourse must either know or have reason to believe that thewoman is married. Though man has engaged in sexual intercoursewith woman who is married, the offence of adultery does not comeinto being where he did so with the consent or connivance of her husband.

These ingredients of Section 497 lay bare several features which bearon the challenge to its validity under Article 14. The fact that the sexualrelationship between man and woman is consensual is of nosignificance to the offence, if the ingredients of the offence areestablished. What the legislature has constituted as criminal offenceis the act of sexual intercourse between man and woman who is “thewife of another man”. No offence exists where man who has asubsisting marital relationship engages in sexual intercourse with singlewoman. Though adultery is considered to be an offence relating tomarriage, the legislature did not penalise sexual intercourse between amarried man and single woman. Even though the man in such casehas spouse, this is considered to be of no legal relevance to defining

9 8 Deborah Rhode, Adultery: Infidelity and the Law, (Harvard University Press, 2016)9 9 Iris Marion Young, Justice and the Politics of Difference, Princeton UniversityPress, 1990

Athe scope of the offence. That is because the provision proceeds on thenotion that the woman is but chattel; the property of her husband. Thefact that he is engaging in sexual relationship outside marriage is of noconsequence to the law. The woman with whom he is in marriage hasno voice of her own, no agency to complain. If the woman who isinvolved in the sexual act is not married, the law treats it with unconcern.BThe premise of the law is that if woman is not the property of marriedman, her act would not be deemed to be ‘adulterous’, by definition.31. The essence of the offence is that man has engaged in anact of sexual intercourse with the wife of another man. But if the man towhom she is married were to consent or even to connive at the sexualCrelationship, the offence of adultery would not be established. For, in theeyes of law, in such case it is for the man in the marital relationship todecide whether to agree to his spouse engaging in sexual act withanother. Indeed, even if the two men (the spouse of the woman and theman with whom she engages in sexual act) were to connive, the offenceDof adultery would not be made out.

32. Section 497 is destructive of and deprives woman of heragency, autonomy and dignity. If the ostensible object of the law is toprotect the ‘institution of marriage’, it provides no justification for notrecognising the agency of woman whose spouse is engaged in sexualErelationship outside of marriage. She can neither complain nor is thefact that she is in marital relationship with man of any significance tothe ingredients of the offence. The law also deprives the married womanwho has engaged in sexual act with another man, of her agency. Sheis treated as the property of her husband. That is why no offence ofadultery would be made out if her husband were to consent to her sexualFrelationship outside marriage. Worse still, if the spouse of the womanwere to connive with the person with whom she has engaged in sexualintercourse, the law would blink. Section 497 is thus founded on thenotion that woman by entering upon marriage loses, so to speak, hervoice, autonomy and agency. Manifest arbitrariness is writ large on theGprovision.

33. The test of manifest arbitrariness is rooted in Indianjurisprudence. In P Royappa v State of Tamil Nadu[100],JusticeBhagwati characterised equality as “dynamic construct” which iscontrary to arbitrariness:H100 (1974) 4 SCC 3

“85…Now, what is the content and reach of this great equalisingprinciple? It is founding faith, to use the words of Bose. J., “away of life”, and it must not be subjected to narrow pedanticor lexicographic approach. We cannot countenance any attemptto truncate its all-embracing scope and meaning, for to do sowould be to violate its activist magnitude. Equality is dynamicconcept with many aspects and dimensions and it cannotbe “cribbed, cabined and confined” within traditional anddoctrinaire limits. From positivistic point of view, equalityis antithetic to arbitrariness. In fact equality andarbitrariness are sworn enemies; one belongs to the ruleof law in republic while the other, to the whim and capriceof an absolute monarch. Where an act is arbitrary, it isimplicit in it that it is unequal both according to politicallogic and constitutional law and is therefore violative ofArticle 14…”[101] (Emphasis supplied)

The Constitution Bench in Shayara Bano v Union of India[102] held thepractice of Triple Talaq to be unconstitutional. Justice Rohinton Nariman,in his concurring opinion, applied the test of manifest arbitrariness tohold that the practice does not pass constitutional muster:

“87. The thread of reasonableness runs through the entirefundamental rights chapter. What is manifestly arbitraryis obviously unreasonable and being contrary to the ruleof law, would violate Article 14. Further, there is an apparentcontradiction in the three-Judge Bench decisionin McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC709] when it is said that constitutional challenge can succeedon the ground that law is “disproportionate, excessive orunreasonable”, yet such challenge would fail on the very groundof the law being “unreasonable, unnecessary or unwarranted”.The arbitrariness doctrine when applied to legislation obviouslywould not involve the latter challenge but would only involve alaw being disproportionate, excessive or otherwise beingmanifestly unreasonable. All the aforesaid grounds, therefore,do not seek to differentiate between State action in its variousforms, all of which are interdicted if they fall foul of the101 Ibid. at page 38102 (2017) 9 SCC 1

Afundamental rights guaranteed to persons and citizens in Part IIIof the Constitution.”[103] (Emphasis supplied)On the application of the test of manifest arbitrariness to invalidatelegislation, the learned Judge held thus:

“ 101…there is no rational distinction between the two types ofBlegislation when it comes to this ground of challenge under Article14. The test of manifest arbitrariness, therefore, as laid down inthe aforesaid judgments would apply to invalidate legislation aswell as subordinate legislation under Article 14. Manifestarbitrariness, therefore, must be something done by the legislaturecapriciously, irrationally and/or without adequate determiningCprinciple. Also, when something is done which is excessive anddisproportionate, such legislation would be manifestly arbitrary.We are, therefore, of the view that arbitrariness in the sense ofmanifest arbitrariness as pointed out by us above would apply tonegate legislation as well under Article 14.”[104]D34. The decision in Shayara Bano, holds that legislation or stateaction which is manifestly arbitrary would have elements of caprice andirrationality and would be characterized by the lack of an adequatelydetermining principle. An “adequately determining principle” is principlewhich is in consonance with constitutional values. With respect to criminallegislation, the principle which determines the “act” that is criminalizedEas well as the persons who may be held criminally culpable, must betested on the anvil of constitutionality. The principle must not bedetermined by majoritarian notions of morality which are at odds withconstitutional morality.

In Navtej Singh Johar v Union of India, (“Navtej”)[105 ]Justice InduFMalhotra emphasized the need for “sound” or “rational principle”underlying criminal provision:

“ …Section 377 insofar as it criminalises consensual sexual actsbetween adults in private, is not based on any sound or rationalprinciple…

GFurther, the phrase “carnal intercourse against the order ofnature” in Section 377 as determining principle in penalprovision, is too open-ended, giving way to the scope for misuseagainst members of the LGBT community.”

103 Ibid. at pages 91-92H104 Ibid. at page 99105 Writ Petition (Criminal) No. 76 OF 2016

35. The hypothesis which forms the basis of the law on adulteryis the subsistence of patriarchal order. Section 497 is based on notionof morality which fails to accord with the values on which the Constitutionis founded. The freedoms which the Constitution guarantees inhere inmen and women alike. In enacting Section 497, the legislature made anostensible effort to protect the institution of marriage. ‘Ostensible’ it is,because the provision postulates notion of marriage which subvertsthe equality of spouses. Marriage in constitutional regime is foundedon the equality of and between spouses. Each of them is entitled to thesame liberty which Part III guarantees. Each of them is entitled to takedecisions in accordance with his and her conscience and each musthave the ability to pursue the human desire for fulfilment. Section 497 isbased on the understanding that marriage submerges the identity of thewoman. It is based on notion of marital subordination. In recognising,accepting and enforcing these notions, Section 497 is inconsistent withthe ethos of the Constitution. Section 497 treats woman as but apossession of her spouse. The essential values on which the Constitutionis founded – liberty, dignity and equality – cannot allow such view ofmarriage. Section 497 suffers from manifest arbitrariness.36. While engrafting the provision into Chapter XX of the PenalCode – “of offences relating to marriage” – the legislature has basedthe offence on an implicit assumption about marriage. The notion whichthe law propounds and to which it imposes the sanctions of penal law isthat the marital tie subordinates the role and position of the woman. Inthat view of marriage, the woman is bereft of the ability to decide, tomake choices and give free expression to her personality. Humansexuality is an essential aspect of identity. Choices in matters of sexualityare reflective of the human desire for expression. Sexuality cannot beconstrued purely as physiological attribute. In its associational attributes,it links up with the human desire to be intimate with person of one’schoice. Sharing of physical intimacies is reflection of choice. In allowingindividuals to make those choices in consensual sphere, the Constitutionacknowledges that even in the most private of zones, the individual musthave the ability to make essential decisions. Sexuality cannot be dis-associated from the human personality. For, to be human involves theability to fulfil sexual desires in the pursuit of happiness. Autonomy inmatters of sexuality is thus intrinsic to dignified human existence. Humandignity both recognises and protects the autonomy of the individual inmaking sexual choices. The sexual choices of an individual cannot

Aobviously be imposed on others in society and are premised on voluntaryacceptance by consenting parties. Section 497 denudes the woman ofthe ability to make these fundamental choices, in postulating that it isonly the man in marital relationship who can consent to his spousehaving sexual intercourse with another. Section 497 disregards the sexualautonomy which every woman possesses as necessary condition ofBher existence. Far from being an equal partner in an equal relationship,she is subjugated entirely to the will of her spouse. The provision isproffered by the legislature as an effort to protect the institution ofmarriage. But it proceeds on notion of marriage which is one sidedand which denies agency to the woman in marital tie. The ability toCmake choices within marriage and on every aspect concerning it is afacet of human liberty and dignity which the Constitution protects. Indepriving the woman of that ability and recognising it in the man alone,Section 497 fails to meet the essence of substantive equality in itsapplication to marriage. Equality of rights and entitlements between parties

to marriage is crucial to preserve the values of the Constitution. SectionD497 offends that substantive sense of equality and is violative of Article 14.

37. The procedural law which has been enacted in Section 198 ofthe Code of Criminal Procedure 1973 re-enforces the stereotypes implicitin Section 497. Cognizance of an offence under Chapter XX of thePenal Code can be taken by Court only upon complaint of personEaggrieved. In the case of an offence punishable under Section 497, onlythe husband of the woman is deemed to be aggrieved by the offence. Inany event, once the provisions of Section 497 are held to offend thefundamental rights, the procedure engrafted in Section 198 will cease tohave any practical relevance.F

38. Section 497 amounts to denial of substantive equality. Thedecisions in Sowmithri and Revathi espoused formal notion of equality,which is contrary to the constitutional vision of just social order. Justnesspostulates equality. In consonance with constitutional morality, substantiveequality is “directed at eliminating individual, institutional and systemicGdiscrimination against disadvantaged groups which effectively underminestheir full and equal social, economic, political and cultural participation insociety.”[106 ]To move away from formalistic notion of equality whichdisregards social realities, the Court must take into account the impactof the rule or provision in the lives of citizens.106 Kathy Lahey, Feminist Theories of (In)equality, in Equality and Judicial NuetralityH(S.Martin and K.Mahoney (eds.) (1987)

The primary enquiry to be undertaken by the Court towards the realisationof substantive equality is to determine whether the provision contributesto the subordination of disadvantaged group of individuals.[107 ]Thedisadvantage must be addressed not by treating woman as ‘weak’ butby construing her entitlement to an equal citizenship. The formerlegitimizes patronising attitudes towards women. The latter links trueequality to the realisation of dignity. The focus of such an approach isnot simply on equal treatment under the law, but rather on the real impactof the legislation.[108] Thus, Section 497 has to be examined in the light ofexisting social structures which enforce the position of woman as anunequal participant in marriage.

Catherine Mackinnon implores us to look more critically at the reality ofthis family sphere, termed ‘‘personal,’’ and view the family as “crucibleof women’s unequal status and subordinate treatment sexually, physically,economically, and civilly.”[109 ]In social order which has enforcedpatriarchal notions of sexuality upon women and which treats them assubordinate to their spouses in heterosexual marriages, Section 497perpetuates an already existing inequality.

39. Facially, the law may be construed to operate as an exemptionfrom criminal sanctions. However, when viewed in the context of asocial structure which considers the husband as the owner of the wife’ssexuality, the law perpetuates deeply entrenched patriarchal order.The true realisation of the substantive content of equality must entail anoverhaul of these social structures. When all visible and invisible formsof inequality- social, cultural, economic, political or sexual- are recognisedand obliterated; truly egalitarian existence can be imagined.

F‘The Good Wife’

Article 15 of the Constitution reads thus:

“15. (1) The State shall not discriminate against any citizen ongrounds only of religion, race, caste, sex, place of birth or any ofthem.” (Emphasis supplied)

107 Ratna Kapur On Woman, Equality and the Constitution: Through the Looking Glassof Feminism in Gender and Politics in India (Nivedita Menon ed.) (1993)

108 Maureen Maloney, An Analysis of Direct Taxes in India: Feminist Perspective,Journal of the Indian Law Institute (1988)

109 Catherine Mackinnon, Sex equality under the Constitution of India: Problems,prospects, and ‘personal laws’, Oxford University Press and New York UniversitySchool of Law (2006)

CDE

A40. Article 15 prohibits the State from discriminating on groundsonlyof sex. The Petitioners contend that (i) Section 497, in so far as itplaces husband and wife on different footing in marriage perpetuatessex discrimination; (ii) Section 497 is based on the patriarchal conceptionof the woman as property, entrenches gender stereotypes, and isconsequently hit by Article 15.B

From joint reading of Section 497 of the Indian Penal Code and Section198(2) of the Code of Criminal Procedure, the following propositionsemerge:

i.Sexual relations by married woman with another manCoutside her marriage without the consent of her husband iscriminalized;

ii.In an ‘adulterous relationship’, the man is punished foradultery, while the woman is not (even as an abettor);

iii.Sexual relations by married man with an unmarried womanDare not criminalized;

iv.Section 497 accords primacy to the consent of the husbandto determine whether criminality is attached to the man whohas consensual sexual relations with the spouse of theformer. Consent or willingness of the woman is irrelevantEto the offence;

v.A man who has sexual relations with the spouse of anotherman is relieved of the offence only if her spouse hasconsented or, even connived; and

vi.Section 497, IPC, read with Section 198, Cr.PC, gives theFman the sole right to lodge complaint and precludes awoman from initiating criminal proceedings.

41. The operation of Section 497, by definition, is confined to thesexual relations of woman outside her marriage. man who has sexualintercourse with married woman without the consent or connivance ofGher husband, is liable to be prosecuted under the Section. However, amarried man may engage in sexual relations outside marriage with asingle woman without any repercussion in criminal law. Though grantedimmunity from prosecution, woman is forced to consider the prospectof the penal action that will attach upon the individual with whom sheHengages in sexual act. To ensure the fidelity of his spouse, the man is

given the power to invoke the criminal sanction of the State. In effect,her spouse is empowered to curtail her sexual agency. The consent ofthe husband serves as the key to the exercise of the sexual agency ofhis spouse. That the married woman is in consensual relationship, is ofno consequence to the possible prosecution.

married man may engage in sexual relations with an unmarried womanwho is not his wife without the fear of opening his partner to prosecutionand without the consent of his spouse. No recourse is provided to awoman against her husband who engages in sexual relations outsidemarriage. The effect of Section 497 is to allow the sexual agency of amarried woman to be wholly dependent on the consent or connivance ofher husband. Though Section 497 does not punish woman engaging inadultery as an abettor, married man and married woman are placedon different pedestals in respect to their actions. The effect of Section497, despite granting immunity from prosecution to the married woman,is to attach notion of wrongdoing to the exercise of her sexual agency.Despite exempting her from prosecution, the exercise of her sexualagency is contingent on the consent or connivance of the husband. Ahusband is considered an aggrieved party by the law if his wife engagesin sexual intercourse with another man, but the wife is not, if her husbanddoes the same. Viewed from this angle, Section 497 discriminates betweena married man and married woman to her detriment on the ground ofsex. This kind of discrimination is prohibited by the non-discriminationguarantee in Article 15 of the Constitution. Section 497 also places awoman within marriage and the man with whom she shares sexualrelationship outside marriage on different footing.

42. Section 497 criminalizes the conduct of the man who has sexualintercourse with the wife of another without his consent. It exemptswomen from criminal liability. Underlying this exemption is the notionthat women, being denuded of sexual agency, should be afforded the‘protection’ of the law. In criminalizing the accused who engages in thesexual relationship, the law perpetuates gender stereotype that men,possessing sexual agency are the seducers, and that women, as passivebeings devoid of sexual agency, are the seduced. The notion that womanis ‘submissive’, or worse still ‘naïve’ has no legitimacy in the discourseof liberal constitution. It is deeply offensive to equality and destructiveof the dignity of the woman. On this stereotype, Section 497 criminalizesonly the accused man.

A43. Pertinent to the present enquiry, is that the provision allowsonly the husband to initiate prosecution for adultery. The consent orconnivance of the husband precludes prosecution. If husband consents,his spouse is effectively granted permission to exercise her sexual agencywith another individual. This guarantees degree of control to thehusband over the sexual agency of his spouse. As relic of VictorianBmorality, this control over the sexual agency of the spouse, views thewife as the property of the husband. Fidelity of the woman, and thehusband’s control over it, is seen as maintaining the ‘property’ interestof husband in his wife.[110] In this view, woman is confounded withthings that can be possessed. In construing the spouse as passive orCinanimate object, the law on adultery seeks to punish person whoattempts theft on the property of the husband. Coontz and Hendersonwrite that the stabilization of property rights and the desire to pass onone’s property to legitimate heirs, were what motivated men to restrictthe sexual behavior of their wives.[111]

D44. Underlying Section 497 is gender stereotype that the infidelityof men is normal, but that of woman is impermissible. In condemningthe sexual agency of the woman, only the husband, as the ‘aggrieved’party is given the right to initiate prosecution. The proceedings onceinitiated, would be geared against the person who committed an act of

‘theft’ or ‘trespass’ upon his spouse. Sexual relations by man withEanother man’s wife is therefore considered as theft of the husband’sproperty. Ensuring man’s control over the sexuality of his wife was thetrue purpose of Section 497.

Implicit in seeking to privilege the fidelity of women in marriage, is theassumption that woman contracts away her sexual agency when

Fentering marriage. That woman, by marriage, consents in advanceto sexual relations with her husband or to refrain from sexual relationsoutside marriage without the permission of her husband is offensive toliberty and dignity. Such notion has no place in the constitutional order.Sexual autonomy constitutes an inviolable core of the dignity of everyindividual. At the heart of the constitutional rights guaranteed to everyGindividual is primacy of choice and the freedom to determine one’sactions. Curtailing the sexual autonomy of woman or presuming the

110 Phyllis Coleman, Who’s Been Sleeping in My Bed? You and Me, and the StateMakes Three, Vol. 24, Indian Law Review (1991)

111 Women’s Work, Men’s Property: The Origins of Gender and Class (S Coontz and PHHenderson eds.) (1986)

lack of consent once she enters marriage is antithetical to constitutionalvalues.

45. provision of law must not be viewed as operating in isolationfrom the social, political, historical and cultural contexts in which itoperates. In its operation, law “permeates and is inseparable fromeveryday living and knowing, and it plays an important role in shaping(legal) consciousness.”[112] contextual reading of the law shows that itinfluences social practices, and makes “asymmetries of power seem, ifnot invisible, natural and benign”.[113] Section 497 has significant socialimpact on the sexual agency of women. It builds on existing genderstereotypes and bias and further perpetuates them. Cultural stereotypesare more forgiving of man engaging in sexual relations than woman.Women then are expected to be chaste before and faithful duringmarriage. In restricting the sexual agency of women, Section 497 giveslegal recognition to socially discriminatory and gender-based norms.Sexual relations for woman were legally and socially permissible whenit was within her marriage. Women who committed adultery or non-marital sex were labeled immoral, shameful, and were criminallycondemned.In Anuj Garg v Hotel Association of India,[114 ]thisCourt struck downSection 30 of the Punjab Excise Act, 1914 which prohibited theemployment of women in premises where liquor or other intoxicatingdrugs were consumed by the public. Holding that the law suffered from“incurable fixations of stereotype morality and conception of sexual role”,the Court took into account “traditional cultural norms as also the stateof general ambience in the society” and held that “no law in its ultimateeffect should end up perpetuating the oppression of women.”

In Navtej,one of us (Chandrachud J.) held thus:

“A discriminatory act will be tested against constitutional values.A discrimination will not survive constitutional scrutiny when it isgrounded in and perpetuates stereotypes about class constitutedby the grounds prohibited in Article 15(1). If any ground of

112 Rosemary Coombe, Is There Cultural Studies of Law?, in Companion to CulturalStudies,Toby Miller (ed.), Oxford, (2001)

113 Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, CulturalStudies, and the Situation of Legal Scholarship, Yale Journal of Law & the Humanities,(2001), at page 19114 (2008) 3 SCC 1

Adiscrimination, whether direct or indirect is founded on astereotypical understanding of the role of the sex, it would not bedistinguishable from the discrimination which is prohibited byArticle 15 on the grounds only of sex. If certain characteristicsgrounded in stereotypes, are to be associated with entire classesof people constituted as groups by any of the grounds prohibitedBin Article 15(1), that cannot establish permissible reason todiscriminate. Such discrimination will be in violation of theconstitutional guarantee against discrimination in Article 15(1).”

46. Section 497 rests on and perpetuates stereotypes about womenand sexual fidelity. In curtailing the sexual agency of women, it exactsCsexual fidelity from women as the norm. It perpetuates the notion that awoman is passive and incapable of exercising sexual freedom. In doingso, it offers her ‘protection’ from prosecution. Section 497 denudes awoman of her sexual autonomy in making its free exercise conditionalon the consent of her spouse. In doing so, it perpetuates the notion thatDa woman consents to limited autonomy on entering marriage. Theprovision is grounded in and has deep social effect on how societyperceives the sexual agency of women. In reinforcing the patriarchalstructure which demands her controlled sexuality, Section 497 purportsto serve as provision envisaged for the protection of the sanctity ofmarriage. In the context of constitutional vision characterized by theEstruggle to break through the shackles of gender stereotypes andguarantee an equal citizenship, Section 497 entrenches stereotypes andexisting structures of discrimination and has no place in constitutionalorder.

F.1The entrapping cageF

47. Section 497 exempts woman from being punished as anabettor. Underlying this exemption is the notion that woman is thevictim of being seduced into sexual relationship with person who isnot her husband. In assuming that the woman has no sexual agency, theexemption seeks to be justified on the ground of being provision that isGbeneficial to women and protected under Article 15(3) of the Constitution.This is contrary to the remedy which Article 15(3) sought to embody. InGovernment of P v P Vijayakumar,[115] two judge Bench of thisCourt dealt with challenge to sub-rule (2) of Rule 22-A of the Andhra

Pradesh State and Subordinate Service Rules, which gave women apreference 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 womenis recognition of the fact that for centuries, women of thiscountry have been socially and economically handicapped. As aresult, they are unable to participate in the socio-economicactivities of the nation on footing of equality. It is in order toeliminate this socio-economic backwardness of women and toempower them in manner that would bring about effectiveequality between men and women that Article 15(3) is placed inArticle 15. Its object is to strengthen and improve the status ofwomen…”[116]

In Independent Thought v Union of India,[117] Justice Madan Lokur,speaking for two judge Bench of this Court, adverted to the draftinghistory of Article 15(3) and held thus:

“55. The response given by Dr. Ambedkar suggests that hecertainly favoured special provisions for women and childrenwith view to integrate them into society and to take them outof patriarchal control…[118]

56. What clearly emerges from this discussion is that Article9(2) of the draft Constitution [now Article 15(3)] was intendedto discriminate in favour of women and children – form ofaffirmative action to their advantage.”[119]

48. Article 15(3) encapsulates the notion of ‘protectivediscrimination’. The constitutional guarantee in Article 15(3) cannot beemployed in manner that entrenches paternalistic notions of ‘protection’.This latter view of protection only serves to place women in cage.Article 15(3) does not exist in isolation. Articles 14 to 18, beingconstituents of single code on equality, supplement each other andincorporate non-discrimination principle. Neither Article 15(1), norArticle 15(3) allow discrimination against women. Discrimination whichis grounded in paternalistic and patriarchal notions cannot claim the

116 Ibid. at page 525117 (2017) 10 SCC 800118 Ibid. at page 837119 Ibid. at page 837

Aprotection of Article 15(3). In exempting women from criminalprosecution, Section 497 implies that woman has no sexual agencyand that she was ‘seduced’ into sexual relationship. Given the presumedlack of sexual agency, criminal exemption is then granted to the womanin order to ‘protect’ her. The ‘protection’ afforded to women under Section497 highlights the lack of sexual agency that the section imputes to aBwoman. Article 15(3) when read with the other Articles in Part III, servesas powerful remedy to remedy the discrimination and prejudice facedby women for centuries. Article 15(3) as an enabling provision is intendedto bring out substantive equality in the fullest sense. Dignity and autonomyare crucial to substantive equality. Hence, Article 15(3) does not protectCa statutory provision that entrenches patriarchal notions in the garb ofprotecting women.

GDenuding identity – women as sexual property

49. Charles Jean Marie wrote in 1911[120] about the central formsof adultery as an offence. The criminalisation of adultery came at aDsocial cost: of disregarding the agency of woman as sentient being.

“In all legislations the married woman is more or less openlyconsidered as the property of the husband and is very oftenconfounded, absolutely confounded, with things possessed. Touse her, therefore, without the authority of her owner is theft…ButEadultery is not common theft. An object, an inert possession,are passive things; their owner may well punish the thief whohas taken them, but him only. In adultery, the object of larceny,the wife, is sentient and thinking being- that is to say, anaccomplice in the attempt on her husband’s property in herown person; moreover he generally has her in his keeping…”FThe law on adultery is but codified rule of patriarchy. Patriarchy haspermeated the lives of women for centuries. Ostensibly, society hastwo sets of standards of morality for judging sexual behaviour.[121] Oneset for its female members and another for males.[122] Society ascribesimpossible virtues to woman and confines her to narrow sphere ofGbehaviour by an expectation of conformity.[123] Raising woman to

120 Charles Jean Marie Letorneau, The Evolution of Marriage (2011)

121 Nandita Haksar, Dominance, Suppression and the Law in Women and the Law:Contemporary Problems (Lotika Sarkar and B. Sivaramayya eds.), Vikas PublishingHouse (1994)122 IbidH123 Ibid

pedestal is one part of the endeavour. The second part is all aboutconfining her to space. The boundaries of that space are defined bywhat woman should or should not be. society which perceives womenas pure and an embodiment of virtue has no qualms of subjecting themto virulent attack: to rape, honour killings, sex-determination andinfanticide. As an embodiment of virtue, society expects the women tobe mute spectator to and even accepting of egregious discriminationwithin the home. This is part of the process of raising women to pedestalconditioned by male notions of what is right and what is wrong for awoman. The notion that women, who are equally entitled to theprotections of the Constitution as their male counterparts, may be treatedas objects capable of being possessed, is an exercise of subjugation andinflicting indignity. Anachronistic conceptions of ‘chastity’ and ‘honour’have dictated the social and cultural lives of women, depriving them ofthe guarantees of dignity and privacy, contained in the Constitution.

50. The right to privacy depends on the exercise of autonomy andagency by individuals. In situations where citizens are disabled fromexercising these essential attributes, Courts must step in to ensure thatdignity is realised in the fullest sense. Familial structures cannot beregarded as private spaces where constitutional rights are violated. Togrant immunity in situations when rights of individuals are in siege, is toobstruct the unfolding vision of the Constitution.

The opinion delivered on behalf of four judges in K S Puttaswamy vUnion of India[124] has recognised the dangers of the “use of privacy asa veneer for patriarchal domination and abuse of women.” On the delicatebalance between the competing interests of protecting privacy as welldignity of women in the domestic sphere, the Court held:

“The challenge in this area is to enable the state to take theviolation of the dignity of women in the domestic sphere seriouslywhile at the same time protecting the privacy entitlements ofwomen grounded in the identity of gender and liberty.”

51. In “Seeing like Feminist”, Nivedita Menon has recognizedthe patriarchal family as the “basis for the secondary status of women insociety.”[125] Menon notes that ‘the personal is political’.[126] Her scholarly

124 (2017) 10 SCC 1

125 Nivedita Menon, Seeing like Feminist, Zubaan Books (2012) at page 35

126 Ibid.

Awork implores us to recognise spaces which may be considered personalsuch as the bedroom and kitchen. These spaces are immersed in powerrelations, but with ramifications for the public sphere.[127]

Control over women’s sexuality is the key patriarchal assumption thatunderlies family and marriage.[128] When it shifts to the ‘public’ as opposedBto the ‘private’, the misogyny becomes even more pronounced.[129] Section497 embodies this. By the operation of the provision, women’s sexualityis sought to be controlled in number of ways. First, the husband and healone is enabled to prosecute the man with whom his wife has sexualrelations. Even in cases where the relationship is based on the consentof the woman, the law treats it as an offence, denying woman who hasCvoluntarily entered into consensual relationship of her sexual agency.Second, such relationship would be beyond the reach of penal law ifher husband consents to it. The second condition is telling reflection ofthe patriarchal assumption underlying the criminal provision: that thehusband is the owner of the wife’s sexual agency.

D52. In remedying injustices, the Court cannot shy away from delvinginto the ‘personal’, and as consequence, the ‘public’. It becomesimperative for us to intervene when structures of injustice and persecutiondeeply entrenched in patriarchy are destructive of constitutional freedom.But, in adjudicating on the rights of women, the Court is not taking on

paternalistic role and “granting” rights. The Court is merely interpretingEthe text of the Constitution to re-state what is already set in ink- womenare equal citizens of this nation, entitled to the protections of theConstitution. Any legislation which results in the denial of theseConstitutional guarantees to women, cannot pass the test ofconstitutionality.FPatriarchy and paternalism are the underpinnings of Section 497. Itneeds no iteration that misogyny and patriarchal notions of sexual controlfind no place in constitutional order which has recognised dignity asintrinsic to person, autonomy being an essential component of thisright. The operation of Section 497 denotes that ‘adulterous women’Gvirtually exercise no agency; or at least not enough agency to makethem criminally liable.[130] They are constructed as victims. As victims,127 Ibid.

128 Ibid.129 Ibid.

130 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements withHLaw in India, Sage Publications (1996) at page 119

they are to be protected by being exempt from sanctions of criminalnature.[131] Not only is there denial of sexual agency, women are alsonot seen to be harmed by the offence.[132] Thus, the provision is notsimply about protecting the sanctity of the marital relationship. It is allabout protecting husband’s interest in his “exclusive access to his wife’ssexuality”.[133]

53. Section 497 chains the woman to antediluvian notions ofsexuality. Chief Justice Dipak Misra in Navtej emphasised theimportance of sexual autonomy as facet of individual liberty, thusprotected under Article 21 of the Constitution:

“The sexual autonomy of an individual to choose his/her sexualpartner is an important pillar and an insegregable facet ofindividual liberty. When the liberty of even single person of thesociety is smothered under some vague and archival stipulationthat it is against the order of nature or under the perception thatthe majority population is peeved when such an individualexercises his/her liberty despite the fact that the exercise of suchliberty is within the confines of his/her private space, then thesignature of life melts and living becomes bare subsistenceand resultantly, the fundamental right of liberty of such anindividual is abridged.”

In Navtej, one of us (Chandrachud J.) held that the recognition of theautonomy of an individual is an acknowledgement of the State’s respectfor the capacity of the individual to make individual choices:

“The right to privacy enables an individual to exercise his or herautonomy, away from the glare of societal expectations. Therealisation of the human personality is dependent on the autonomyof an individual. In liberal democracy, recognition of theindividual as an autonomous person is an acknowledgment ofthe State’s respect for the capacity of the individual to makeindependent choices. The right to privacy may be construed tosignify that not only are certain acts no longer immoral, but thatthere also exists an affirmative moral right to do them.”

To characterise woman as passive object, denuded of agency, is adenial of autonomy. The same judgment in Navtej has recognized sexual131 Ibid.132 Ibid.

133 Ibid. at page 120

Achoices as an essential attribute of autonomy, intimately connected tothe self-respect of the individual:

“In order to understand how sexual choices are an essentialattribute of autonomy, it is useful to refer to John Rawls’ theoryon social contract. Rawls’ conception of the ‘Original Position’Bserves as constructive model to illustrate the notion of choicebehind “partial veil of ignorance.” Persons behind the veil areassumed to be rational and mutually disinterested individuals,unaware of their positions in society. The strategy employed byRawls is to focus on category of goods which an individualwould desire irrespective of what individuals’ conception of ‘good’Cmight be. These neutrally desirable goods are described by Rawlsas ‘primary social goods’ and may be listed as rights, liberties,powers, opportunities, income, wealth, and the constituents ofself-respect. Rawls’s conception of self-respect, as primaryhuman good, is intimately connected to the idea ofDautonomy. Self-respect is founded on an individual’s abilityto exercise her native capacities in competent manner.”(Emphasis supplied)

G.1Exacting fidelity: the intimacies of marriage

54. Marriage as social institution has undergone changes.EPropelled by access to education and by economic and social progress,women have found greater freedom to assert their choices andpreferences. The law must also reflect their status as equals in marriage,entitled to the constitutional guarantees of privacy and dignity. The opiniondelivered on behalf of four judges in Puttaswamy held thus:

F“130…As society evolves, so must constitutional doctrine. Theinstitutions which the Constitution has created must adapt flexiblyto meet the challenges in rapidly growing knowledge economy.Above all, constitutional interpretation is but process in achievingjustice, liberty and dignity to every citizen.”[134]

GIn Navtej, Justice Rohinton Nariman countered the assertion that theCourt must “not indulge in taking upon itself the guardianship of changingsocietal mores” by holding thus:

“…The very purpose of the fundamental rights chapter in theConstitution of India is to withdraw the subject of liberty and

dignity of the individual and place such subject beyond the reachof majoritarian governments so that constitutional morality canbe applied by this Court to give effect to the rights, among others,of ‘discrete and insular’ minorities.One such minority has knockedon the doors of this Court as this Court is the custodian of thefundamental rights of citizens. These fundamental rights donot depend upon the outcome of elections. And, it is notleft to majoritarian governments to prescribe what shallbe orthodox in matters concerning social morality. Thefundamental rights chapter is like the north star in theuniverse of constitutionalism in India. Constitutionalmorality always trumps any imposition of particular viewof social morality by shifting and different majoritarianregimes.”

(Emphasis supplied)

55. Section 497 seeks the preservation of construct of marriagein which female fidelity is enforced by the letter of the law and by thecoercive authority of the state. Such conception goes against the spiritof the rights-based jurisprudence of this Court, which seeks to protectthe dignity of an individual and her “intimate personal choices”. It cannotbe held that these rights cease to exist once the woman enters into amarriage.

56. The identity of the woman must be as an ‘individual in herown right’. In that sense, her identity does not get submerged as resultof her marriage. Section 497 lays down the norm that the identity of amarried woman is but as the wife of her spouse. Underlying the norm isa notion of control over and subjugation of the woman. Such notionscannot withstand scrutiny under liberal constitution. Chief Justice DipakMisra in Navtej has drawn on the interrelationship between ‘identity’and ‘autonomy’:

“…Autonomy is individualistic. Under the autonomy principle,the individual has sovereignty over his/her body. He/she cansurrender his/her autonomy wilfully to another individual and theirintimacy in privacy is matter of their choice. Such concept ofidentity is not only sacred but is also in recognition of thequintessential facet of humanity in person‘s nature. Theautonomy establishes identity and the said identity, in the ultimateeventuate, becomes part of dignity in an individual.This dignity

Ais special to the man/woman who has right to enjoy his/her lifeas per the constitutional norms and should not be allowed towither and perish like mushroom. It is directional shift fromconceptual macrocosm to cognizable microcosm. When suchculture grows, there is an affirmative move towards moreinclusive and egalitarian society.”

This Court in Puttaswamy has elucidated that privacy is the entitlementof every individual, with no distinction to be made on the basis of theindividual’s position in society.

“271.Every individual in society irrespective of social class orCeconomic status is entitled to the intimacy and autonomy whichprivacy protects. It is privacy as an intrinsic and core feature oflife and personal liberty which enables an individual to stand upagainst programme of forced sterilization. Then again, it isprivacy which is powerful guarantee if the State were tointroduce compulsory drug trials of non-consenting men orDwomen. The sanctity of marriage, the liberty of procreation, thechoice of family life and the dignity of being are matters whichconcern every individual irrespective of social strata or economicwell being. The pursuit of happiness is founded upon autonomyand dignity. Both are essential attributes of privacy which makesEno distinction between the birth marks of individuals.”[135]

57. It would be useful to refer to decisions of this Court whichhave emphasised on the freedoms of individuals with respect to choicesin relationships. In Navtej, Chief Justice Misra highlighted the indignitysuffered by an individual when “acts within their personal sphere” areFcriminalised on the basis of regressive social attitudes:

“An individual’s choice to engage in certain acts within theirprivate sphere has been restricted by criminalising the same onaccount of the age old social perception. To harness such anessential decision, which defines the individualism of person,Gby tainting it with criminality would violate the individual’s rightto dignity by reducing it to mere letters without any spirit.”

The Chief Justice observed that the “organisation of intimate relations”between “consenting adults” is matter of complete personal choice

135 Ibid. at page 484H

and characterised the “private protective sphere and realm of individualchoice and autonomy” as personal right:

“It is true that the principle of choice can never be absoluteunder liberal Constitution and the law restricts one individual‘schoice to prevent harm or injury to others. However, theorganisation of intimate relations is matter of completepersonal choice especially between consenting adults. Itis vital personal right falling within the private protectivesphere and realm of individual choice and autonomy. Suchprogressive proclivity is rooted in the constitutionalstructure and is an inextricable part of human nature.”

(Emphasis supplied)

In Shakti Vahini, this Court has recognised the right to choose partneras fundamental right under Articles 19 and 21 of the Constitution. InShafin Jahan, “intimate personal choices” were held to be protectedsphere, with one of us (Chandrachud J) stating:

“88.The choice of partner whether within or outside marriagelies within the exclusive domain of each individual. Intimacies ofmarriage lie within core zone of privacy, which is inviolable.”

58. In Navtej, one of us (Chandrachud J) held that the right tosexual privacy is natural right, fundamental to liberty and soulmate ofdignity. The application of Section 497 is blatant violation of theseenunciated rights. Will trial to prove adultery lead the wife to tenderproof of her fidelity? In Navtej, the principle was elucidated thus:

“In protecting consensual intimacies, the Constitution adopts asimple principle: the state has no business to intrude into thesepersonal matters.”

In so far as two individuals engage in acts based on consent, the lawcannot intervene. Any intrusion in this private sphere would amount todeprivation of autonomy and sexual agency, which every individual isimbued with.

In Puttaswamy, it was recognised that life of dignity entails that the“inner recesses of the human personality” be secured from “unwantedintrusion”:

“127.The right to privacy is an element of human dignity. Thesanctity of privacy lies in its functional relationship with dignity.

APrivacy ensures that human being can lead life of dignity bysecuring the inner recesses of the human personality fromunwanted intrusion. Privacy recognises the autonomy of theindividual and the right of every person to make essential choiceswhich affect the course of life. In doing so privacy recognisesthat living life of dignity is essential for human being to fulfilBthe liberties and freedoms which are the cornerstone of theConstitution.”[136]

59. In criminalizing adultery, the legislature has imposed itsimprimatur on the control by man over the sexuality of his spouse. Indoing that, the statutory provision fails to meet the touchstone of ArticleC21. Section 497 deprives woman of her autonomy, dignity and privacy.It compounds the encroachment on her right to life and personal libertyby adopting notion of marriage which subverts true equality. Equalityis subverted by lending the sanctions of the penal law to gender biasedapproach to the relationship of man and woman. The statute confoundsDpaternalism as an instrument for protecting marital stability. It definesthe sanctity of marriage in terms of hierarchical ordering which isskewed against the woman. The law gives unequal voices to partners ina relationship.This judgment has dwelt on the importance of sexual autonomy as aEvalue which is integral to life and personal liberty under Article 21.Individuals in relationship, whether within or outside marriage, have alegitimate expectation that each will provide to the other the sameelement of companionship and respect for choices. Respect for sexualautonomy, it must be emphasized is founded on the equality betweenspouses and partners and the recognition by each of them of the dignityFof the other. Control over sexuality attaches to the human element ineach individual. Marriage – whether it be sacrament or contract –does not result in ceding of the autonomy of one spouse to another.

60. Recognition of sexual autonomy as inhering in each individualand of the elements of privacy and dignity have bearing on the role ofGthe state in regulating the conditions and consequences of maritalrelationships. There is fundamental reason which militates againstcriminalization of adultery. Its genesis lies in the fact that criminalizingan act is not valid constitutional response to sexual relationship outside

the fold of marriage. Adultery in the course of subsisting maritalrelationship may, and very often does question the commitment of thespouse to the relationship. In many cases, sexual relationship of one ofthe spouses outside of the marriage may lead to the end of the maritalrelationship. But in other cases, such relationship may not be the causebut the consequence of pre-existing disruption of the marital tie. Alltoo often, spouses who have drifted apart irrevocably may be compelledfor reasons personal to them to continue with the veneer of marriagewhich has ended for all intents and purposes. The interminably longdelay of the law in the resolution of matrimonial conflicts is an aspectwhich cannot be ignored. The realities of human existence are toocomplex to place them in closed categories of right and wrong and tosubject all that is considered wrong with the sanctions of penal law. Justas all conduct which is not criminal may not necessarily be ethically just,all conduct which is inappropriate does not justify being elevated to acriminal wrongdoing.

61. The state undoubtedly has legitimate interest in regulatingmany aspects of marriage. That is the foundation on which the statedoes regulate rights, entitlements and duties, primarily bearing on its civilnature. Breach by one of the spouses of legal norm may constitute aground for dissolution or annulment. When the state enacts and enforcessuch legislation, it does so on the postulate that marriage as socialinstitution has significant bearing on the social fabric. But in doing so,the state is equally governed by the norms of liberal Constitution whichemphasise dignity, equality and liberty as its cardinal values. The legitimateaims of the state may, it must be recognized, extend to imposing penalsanctions for certain acts within the framework of marriage. Physicaland emotional abuse and domestic violence are illustrations of the needfor legislative intervention. The Indian state has legitimately intervenedin other situations such as by enacting anti dowry legislation or by creatingoffences dealing with the harassment of women for dowry within amarital relationship. The reason why this constitutes legitimate recourseto the sovereign authority of the state to criminalize conduct is becausethe acts which the state proscribes are deleterious to human dignity. Incriminalizing certain types of wrongdoing against women, the stateintervenes to protect the fundamental rights of every woman to live withdignity. Consequently, it is important to underscore that this judgmentdoes not question the authority and even the duty of the state to protect

Athe fundamental rights of women from being trampled upon in unequalsocietal structures. Adultery as an offence does not fit that paradigm. Incriminalizing certain acts, Section 497 has proceeded on hypothesiswhich is deeply offensive to the dignity of women. It is grounded inpaternalism, solicitous of patriarchal values and subjugates the womanto position where the law disregards her sexuality. The sexuality of aBwoman is part of her inviolable core. Neither the state nor the institutionof marriage can disparage it. By reducing the woman to the status of avictim and ignoring her needs, the provision penalizing adultery disregardssomething which is basic to human identity. Sexuality is definitiveexpression of identity. Autonomy over one’s sexuality has been centralCto human urges down through the ages. It has constitutional foundationas intrinsic to autonomy. It is in this view of the matter that we haveconcluded that Section 497 is violative of the fundamental rights to equalityand liberty as indeed, the right to pursue meaningful life within the foldof Articles 14 and 21.

D62. The hallmark of truly transformative Constitution is that itpromotes and engenders societal change. To consider free citizen asthe property of another is an anathema to the ideal of dignity. Section497 denies the individual identity of married woman, based on age-oldsocietal stereotypes which characterised women as the property of theirspouse. It is the duty of this Court to break these stereotypes and promoteEa society which regards women as equal citizens in all spheres of life-irrespective of whether these spheres may be regarded as ‘public’ or‘private’.

HTowards transformative justice

F63. Constitutional values infuse the letter of the law with meaning.True to its transformative vision, the text of the Constitution has, timeand again, been interpreted to challenge hegemonic structures of powerand secure the values of dignity and equality for its citizens. One of themost significant of the battles for equal citizenship in the country hasbeen fought by women. Feminists have overcome seeminglyGinsurmountable barriers to ensure more egalitarian existence for futuregenerations. However, the quest for equality continues. While there hasbeen considerable degree of reform in the formal legal system, there isan aspect of women’s lives where their subordination has historicallybeen considered beyond reproach or remedy. That aspect is the family.HMarriage is significant social institution where this subordination is

pronounced, with entrenched structures of patriarchy and romanticpaternalism shackling women into less than equal existence.

64. The law on adultery, conceived in Victorian morality, considersa married woman the possession of her husband: passive entity, bereftof agency to determine her course of life. The provision seeks to onlyredress perceived harm caused to the husband. This notion is groundedin stereotypes about permissible actions in marriage and the passivityof women. Fidelity is only expected of the female spouse. Thisanachronistic conception of both, woman who has entered into marriageas well as the institution of marriage itself, is antithetical to constitutionalvalues of equality, dignity and autonomy.

In enforcing the fundamental right to equality, this Court has evolved atest of manifest arbitrariness to be employed as check against stateaction or legislation which has elements of caprice, irrationality or lacksan adequate determining principle. The principle on which Section 497rests is the preservation of the sexual exclusivity of 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 withthe consent and connivance of the husband. The patriarchal underpinningsof Section 497 render the provision manifestly arbitrary.65. The constitutional guarantee of equality rings hollow wheneviscerated of its substantive content. To construe Section 497 in vacuum(as did Sowmithri Vishnu)or in formalistic terms (as did Revathi) is arefusal to recognise and address the subjugation that women havesuffered as consequence of the patriarchal order. Section 497 is adenial of substantive equality in that it re-inforces the notion that womenare unequal participants in marriage; incapable of freely consenting toa sexual act in legal order which regards them as the sexual propertyof their spouse.

66. This Court has recognised sexual privacy as natural right,protected under the Constitution. To shackle the sexual freedom of awoman and allow the criminalization of consensual relationships is adenial of this right. Section 497 denudes married woman of her agencyand identity, employing the force of law to preserve patriarchalconception of marriage which is at odds with constitutional morality:

“Infidelity was born on the day that natural flows of sexual desirewere bound into the legal and formal permanence of marriage;

Ain the process of ensuring male control over progeny and property,women were chained within the fetters of fidelity.”[137]

Constitutional protections and freedoms permeate every aspect of acitizen’s life - the delineation of private or public spheres become irrelevantas far as the enforcement of constitutional rights is concerned. Therefore,Beven the intimate personal sphere of marital relations is not exempt fromconstitutional scrutiny. The enforcement of forced female fidelity bycurtailing sexual autonomy is an affront to the fundamental right to dignityand equality.

67. Criminal law must be in consonance with constitutional morality.CThe law on adultery enforces construct of marriage where one partneris to cede her sexual autonomy to the other. Being antithetical to theconstitutional guarantees of liberty, dignity and equality, Section 497 doesnot pass constitutional muster.

We hold and declare that:

1)Section 497 lacks an adequately determining principle tocriminalize consensual sexual activity and is manifestlyarbitrary. Section 497 is denial of substantive equality asit perpetuates the subordinate status ascribed to women inmarriage and society. Section 497 violates Article 14 of theEConstitution;

2)Section 497 is based on gender stereotypes about the roleof women and violates the non-discrimination principleembodied in Article 15 of the Constitution;

3)Section 497 is denial of the constitutional guarantees ofFdignity, liberty, privacy and sexual autonomy which areintrinsic to Article 21 of the Constitution; and

4)Section 497 is unconstitutional.

The decisions in Sowmithri Vishnu and Revathi are overruled.

INDU MALHOTRA, J. 1. The present Writ Petition has beenfiled to challenge the constitutional validity of Section 497 of the IndianPenal Code (hereinafter referred to as I.P.C.) which makes ‘adultery’

137 Nivedita Menon, Seeing like Feminist, Zubaan Books (2012) at page 135; quotingHArchana Verma, Stree Vimarsh Ke Mahotsav (2010)

criminal offence, and prescribes punishmentof imprisonment upto fiveyears and fine.Section 497 reads as under:

“497. Adultery — Whoever has sexual intercourse with aperson who is and whom he knows or has reason to believeto be the wife of another man, without the consent orconnivance of that man, such sexual intercourse notamounting to the offence of rape, is guilty of the offence ofadultery, and shall be punished with imprisonment of eitherdescription for term which may extend to five years, orwith fine, or with both. In such case the wife shall not bepunishable as an abettor.”

2. The Petitioner has also challenged Section 198(2) of the Codeof Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C”).Section198(2) reads as under:

“For the purpose of sub-section (1), no person other thanthe husband of the woman shall be deemed to be aggrievedby any offence punishable under section 497 or section 498of the said Code.

Provided that in the absence of the husband, some personwho had care of the woman on his behalf at the time whensuch offence was committed may, with the leave of the Court,make complaint on his behalf.”

3. The word ‘adultery’[1] derives its origin from the Frenchword‘avoutre’, which has evolved from the Latin verb‘adulterium’ whichmeans “to corrupt.” The concept of wife corrupting the marital bondwith her husband by having relationship outside the marriage, wastermed as ‘adultery’.

This definition of adultery emanated from the historical contextofVictorian morality,wherea woman considered to be the ‘property’ of herhusband;andthe offence was committed only by the adulterous man.The adulterous woman could not be proceeded against as an‘abettor’,even though the relationship was consensual.

4. THE DOCTRINE OF COVERTURE

Adultery, as an offence, was not crime under Common Law, inEngland. It was punishable by the ecclesiastical courts which exercised

1 The New international Webster’s Comprehensive Dictionary of the English Language,Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.) at page 21.

Ajurisdiction over sacramental matters that included marriage, separation,legitimacy, succession to personal property, etc.[2]

In England, coverture determined the rights of married women,under Common Law. ‘femesole’ transformed into ‘femecovert’aftermarriage. ‘Feme covert’ was based on the doctrine of ‘Unity of Persons’B– i.e. the husband and wife were single legal identity. This was basedon notions of biblical morality that husband and wife were ‘one in fleshand blood’. The effect of ‘coverture’ was that married woman’s legalrights were subsumed by that of her husband. married woman couldnot own property, execute legal documents, enter into contract, orobtain an education against her husband’s wishes, or retain salary forCherself.[3]The principle of ‘coverture’ was described in William Blackstone’sCommentaries on the Laws of England as follows:[4]

“By marriage, the husband and wife are one person in law:Dthat is, the very being or legal existence of the woman issuspended during the marriage, or at least is incorporatedand consolidated into that of the husband: under whose wing,protection, and cover, she performs everything; and istherefore called in our law-French feme-covert; is said tobe covert-baron, or under the protection and influence ofEher husband, her baron, or lord; and her condition duringher marriage is called her coverture. Upon this principle, ofa union of person in husband and wife, depend almost allthe legal rights, duties, and disabilities, that either of themacquires by the marriage.I speak not at present of the rightsFof property, but of such as are merely personal. For thisreason, man cannot grant anything to his wife, or enterinto covenant with her: for the grant would be to supposeher separate existence; and to covenant with her, would beonly to covenant with himself:and therefore it is also

G2 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 FadingFederalists on Marital Unity.” Married Women and the Law: Coverture in Englandand the Common Law World, edited by Tim Stretton and Krista J. Kesselring,McGill-Queen’s University Press, 2013, pp. 192–216.H4 Blackstone’s Commentaries on the Laws of England, Books III & IV (8thEdn.), 1778

generally true, that all contracts made between husband andwife, when single, are voided by the intermarriage.”

(Emphasis supplied)

On this basis, wife did not have an individual legal liability forher misdeeds, since it was legally assumed that she was acting underthe orders of her husband, and generally husband and wife were notallowed to testify either for, or against each other.

Medieval legal treatises, such as the Bracton[5 ], described the natureof ‘coverture’ and its impact on married women’s legal actions. Bracton(supra) states that husbands wielded power over their wives, being their‘rulers’ and ‘custodians of their property’. The institution of marriagecame under the jurisdiction of ecclesiastical courts. It made wives live inthe shadow of their husbands, virtually ‘invisible’ to the law.

The principle of coverture subsisted throughout the marriage of the couple.It was not possible to obtain divorce through civil courts, which refusedto invade into the jurisdiction of the church. Adultery was the only groundavailable to obtain divorce.

The origin of adultery under Common Law was discussed in the Englishcase Pritchard v. Pritchard and Sims[6], wherein it was held that:

“In 1857, when marriage in England was still union forlife which could be broken only by private Act of Parliament,under the common law, three distinct causes of actionavailable to husband whose rights in his wife were violatedby third party, who enticed her away, or who harbouredher or who committed adultery with her…In the action foradultery, known as criminal conversation, which dates frombefore the time of BRACTON, and consequently lay originallyin trespass, the act of adultery itself was the cause of actionand the damages punitive at large. It lay whether the adulteryresulted in the husband’s losing his wife’s society and servicesor not. All three causes of action were based on therecognition accorded by the common law to the husband’s

5Bracton: De Legibus Et ConsuetudinibusAngliæ(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.html6[1966] 3 All E.R. 601

Aproprietywhich would have been hers had she been femesole.”

(Emphasis supplied)

In the Victorian Era[7], women were denied the exercise of basicrights and liberties, and had little autonomy over their choices. TheirBstatus was pari materia with that of land, cattle and crop; forming apart of the ‘estate’ of their fathers as daughters prior to marriage, and asthe ‘estate’ of their husbandpost-marriage.[8]

Lord Wilson in his Speech titled “Out of his shadow:The longstruggle of wives under English Law”[9] speaks of the plight of womenCduring this era:

“8. An allied consequence of the wife’s coverture was thatshe was not legally able to enter into contract. Apart fromanything else, she had no property against which to enforceany order against her for payment under contract; so itDwas only small step for the law to conclude that she didnot have the ability to enter into the contract in the firstplace. If, however, the wife went into shop and orderedgoods, say of food or clothing, which the law regarded asnecessary for the household, the law presumed, unless theEhusband proved to the contrary, that she had entered intothe contract as his authorised agent. So the shopkeepercould sue him for the price if the wife had obtained the goodson credit.

9. In the seventeenth century there was development in thelaw relating to this so-called agency of necessity. It was anFattempt to serve the needs of wives whose husbands haddeserted them. The law began to say that, if deserted wifehad not committed adultery, she could buy from theshopkeeper all such goods as were necessary for her and,even if (as was highly likely) the husband had not authorisedG

7 1807 – 1901 A.D.8 Margot Finn (1996). Women, Consumption and Coverture in England, c. 1760–1860. The Historical Journal, 39, pp 703-722

9 The High Sheriff of Oxfordshire’s Annual Law Lecture given by Lord Wilson on 9October 2012H Available at: https://www.supremecourt.uk/docs/speech-121009.pdf

her to buy them, he was liable to pay the shopkeeper forthem. But the shopkeeper had problem. How was he toknow whether the wife at the counter had been desertedand had not committed adultery? Sometimes husband evenplaced notice in the local newspaper to the effect, true oruntrue, that his wife had deserted him or had committedadultery and that accordingly he would not be liable to payfor her purchase of necessaries.….”

The remnants of ‘coverture’ sowed the seeds for the introductionof ‘Criminal Conversation’ as an actionable tortby husband against hiswife’s paramour inEngland.

Criminal Conversation as tort, gave married man the right toclaim damages against the man who had entered into sexual relationshipwith his wife. The consent of the wife to the relationship, did not affectthe entitlement of her husband to sue.

The legal position of matrimonial wrongs underwent significantDchange with the passing of the Matrimonial Causes Act, 1857 in England[10]Section 59 of this Act abolished the Common Law action for “criminalconversation”.[11] Section 33 empowered the Courts to award damagesto the husband of the paramour for adultery.[12 ]The claim for damagesfor adultery was to be tried on the same principles, and in the samemanner, as actions for ‘criminal conversation’ which were formerly triedEat Common Law.[13]

10 Matrimonial Causes Act 1857; 1857(20 & 21 Vict.) C. 85

11 LIX. No Action for Criminal Conversation:

“ After this Act shall have come into operation no Action shall be maintainable inEngland for Criminal Conversation.”

12 XXXIII. Husband may claim Damages from Adulterers:

“ Any Husband may, either in Petition for Dissolution of Marriage or for JudicialSeparation, or in Petition limited to such Object only, claim Damages from anyPerson on the Ground of his having committed Adultery with the Wife of such Petitioner,and such Petition shall be served on the alleged Adulterer and the Wife, unless theCourt shall dispense with such Service, or direct some other Service to be substituted;and the Claim made by every such Petition shall be heard and tried on the sameprinciple, in the same manner, and subject to the same or the like rules and regulationsas actions for criminal conversations are now tried and decided in Courts of CommonLaw; and all the enactments herein contain with reference to the hearing and decisionof Petitions to the Courts shall, so far as may be necessary, be deemed applicable tothe hearing and decision of Petitions presented under this enactment..”13 Id.

AThe status of the wife, however, even after the passing of theMatrimonial Causes Act, 1857 remained as ‘property of the husband’,sincewomen had no right to sue either their adulterous husband or hisparamour.

Gender equality between the spouses came to be recognised inBsome measure in England,with the passing of the Matrimonial CausesAct, 1923 which made‘adultery’ ground for divorce, available to bothspouses, instead of only the husband of the adultrous wife. The right ofthe husband to claim damages from his wife’s paramour came to beabolished by The Law Reform (Miscellaneous Provisions) Act of 1970on January 1, 1971. In England, adultery has always been civil wrong,Cand not penal offence.

5.SECTION 497 –HISTORICAL BACKGROUND

5.1. The Indo-Brahmanic traditions prevalent in India mandatedthe chastity of woman to be regarded as her prime virtue, toDbe closely guarded to ensure the purity of the male bloodline.The objective was not only to protect the bodily integrity of thewoman, but to ensure that the husband retains control over hersexuality, confirmingher ‘purity’ in order to ensurethe purity ofhis own bloodline.[14]

E5.2. The first draft of the I.P.C. released by the Law Commissionof India in 1837 did not include “adultery” as an offence. LordMacaulay was of the view that adultery or marital infidelitywas private wrong between the parties, and not criminaloffence.[15]

Theviews of Lord Macaulay were, however, overruledFby the other members of the Law Commission, who were ofthe opinion that the existing remedy for ‘adultery’ underCommon Law would be insufficient for the ‘poor natives’, whowould have no recourse against the paramour of their wife.[16]

14 Uma Chakravarti, Gendering Caste Through Feminist Lens, STREE Publications(2003) at page 71.

15 156th Report on the Indian Penal Code (Vol. I), Law Commission of India at para 9.43at page 169

Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf

16 Penal Code prepared by The Indian Law Commissioners, (1838), The SecondHReport on the Indian Penal Code

5.3. The debate that took place in order to determine whether‘adultery’ should be criminal offence in India was recordedin ‘Note Q’ of ‘A Penal Code prepared by the Indian LawCommissioners’[17]. The existing laws[18] for the punishment ofadultery were considered to be altogether inefficacious forpreventing the injured husband from taking matters into hisown hands.

The Law Commissioners considered that by nottreating‘adultery’ as criminal offence, it may give sanction toimmorality. The Report[19] states:

“ Some who admit that the penal law now existing on thissubject is in practice of little or no use, yet think that theCode ought to contain provision against adultery. Theythink that such provision, though inefficacious for therepressing of vice, would be creditable to the IndianGovernment, and that by omitting such provision we shouldgive sanction to immorality. They say, and we believe withtruth, that the higher class of natives consider the existingpenal law on the subject as far too lenient, and are unableto understand on what principle adultery is treated with moretenderness than forgery or perjury.

…That some classes of the natives of India disapprove ofthe lenity with which adultery is now punished we fullybelieve, but this in our opinion is strong argument againstpunishing adultery at all. There are only two courses whichin our opinion can properly be followed with respect to thisand other great immoralities. They ought to be punished veryseverely, or they ought not to be punished at all. Thecircumstance that they are left altogether unpunished doesnot prove that the Legislature does not regard them withdisapprobation. But when they are made punishable the

17A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of LordThomas Babington Macaulay, Note Q

18 The laws governing adultery in the Colonial areas were laid down in Regulation XVIIof 1817, and Regulation VII of 1819; the Law Commissioners observed that thestrict evidentiary and procedural requirements, deter the people from seeking redress.19 Penal Code prepared by The Indian Law Commissioners, (1838), The SecondReport on the Indian Penal Code

Adegree of severity of the punishment will always be consideredas indicating the degree of disapprobation with which theLegislature regards them. We have no doubt that the nativeswould be far less shocked by the total silence of the penallaw touching adultery than by seeing an adulterer sent toprison for few months while coiner is imprisoned forBfourteen years.”

(Emphasis supplied)

The Law Commissioners in their Report (supra) further stated:“…..The population seems to be divided into two classes –Cthose whom neither the existing punishment nor anypunishment which we should feel ourselves justified inproposing will satisfy, and those who consider the injuryproduced by adultery as one for which pecuniarycompensation will sufficiently atone. Those whose feelingsof honour are painfully affected by the infidelity of theirDwives will not apply to the tribunals at all. Those whosefeelings are less delicate will be satisfied by payment ofmoney. Under such circumstances we think it best to treatadultery merely as civil injury.

…No body proposes that adultery should be punished withEa severity at all proportioned to the misery which it producesin cases where there is strong affection and quick sensibilityto family honour. We apprehend that among the higherclasses in this country nothing short of death would beconsidered as an expiation for such wrong. In such stateof society we think it far better that the law should inflict noFpunishment than that it should inflict punishment whichwould be regarded as absurdly and immorally lenient.”

(Emphasis supplied)

The Law Commissioners considered the plight of women in thiscountry,which was much worse than that of women in France andGEngland. ‘Note Q’ (surpa) records this as the reason for not punishingwomen for the offence of adultery.

The relevant extract of ‘Note Q’ is reproduced herein below:“ There is yet another consideration which we cannot whollyleave out of sight. Though we well know that the dearestH

interests of the human race are closely connected with thechastity of women, and the sacredness of the nuptial contract,we cannot but feel that there are some peculiarities in thestate of society in this country which may well lead humaneman to pause before he determines to punish the infidelityof wives. The condition of the women of this country isunhappily very different from that of the women of Englandand France. They are married while still children. They areoften neglected for other wives while still young. They sharethe attention (sic) of husband with several rivals. To makelaws for punishing the inconstancy of the wife while the lawadmits the privilege of the husband to fill his zenana withwomen, is course which we are most reluctant to adopt. Weare not so visionary as to think of attacking by law an evilso deeply rooted in the manners of the people of this countryas polygamy. We leave it to the slow, but we trust the certainoperation of education and of time. But while it exists, whileit continues to produce its never failing effects on thehappiness and respectability of women, we are not inclinedto throw into scale already too much depressed theadditional weight of the penal law. We have given the reasonswhich lead us to believe that any enactment on this subjectwould be nugatory. And we are inclined to think that if notnugatory it would be oppressive. It would strengthen handsalready too strong. It would weaken class already too weak.It will be time enough to guard the matrimonial contract bypenal sanctions when that contract becomes just, reasonable,”and mutually beneficial.

(Emphasis supplied)

Colonel Sleeman opposed the reasoning of the Law Commissioners onthis subject. The ‘backwardness of the natives’ to take recourse to thecourts for redress in cases of adultery, arose from ‘the utter hopelessnesson their part of getting conviction.’He was of the view that if adulteryis not made crime, the adulterous wives will alone bear the brunt of therage of their husbands. They might be tortured or even poisoned. In hisview, offences such as adultery were inexcusable and must be punished.Colonel Sleeman observed:

“The silence of the Penal Code will give still greater impunityto the seducers, while their victims will, in three cases out of

Afour, be murdered, or driven to commit suicide.Wherehusbands are in the habit of poisoning their guilty wivesfrom the want of legal means of redress, they will sometimespoison those who are suspected upon insufficient grounds,and the innocent will suffer.

B…Sometimes the poorest persons will refuse pecuniarycompensations; but generally they will be glad to get whatthe heads of their caste or circle of society may considersufficient to defray the expenses of second marriage. Theydare not live in adultery, they would be outcasts if they did;they must be married according to the forms of their caste,Cand it is reasonable that the seducer of the wife should bemade to defray these expenses for the injured husband. Therich will, of course, always refuse pecuniary compensation,and for the same reason that they would never prosecute theseducer in civil court. The poor could never afford so toDprosecute in such court; and, as I have said, the silence ofthe Penal Code would be solemn pledge of impunity to theguilty seducer, under the efficient government like ours, thatcan prevent the husband and father from revengingthemselves except upon the females.”20

(Emphasis supplied)

EThis debate along with the recommendation of the LawCommissioners was considered by the Indian Law Commissioners whiledrafting the Indian Penal Code.

5.4. The relevant extract from the discussion on whether toFcriminalize adultery was as follows:

“We have observed that adultery is recognised as an offenceby the existing laws of all the Presidencies, and that an Acthas been lately passed by the Governor-General of India inCouncil for regulating the punishment of the offence in theGBombay territories. Adultery is punishable by the Code Penalof France. It is provided for in the Code of Louisiana. Thefollowing are Mr. Livingston’s observations on the subject.“Whether adultery should be considered as an offence

20 Penal Code prepared by The Indian Law Commissioners, (1838), The SecondHReport on the Indian Penal Code

against public morality, or left to the operation of the civillaws, has been the subject of much discussion. As far as Iam informed, it figures in the penal law of all nations exceptthe English; and some of their most celebrated lawyers haveconsidered the omission as defect.

Neither the immorality of the act, nor its injuriousconsequences on the happiness of females, and veryfrequently on the peace of society and the lives of its members,can be denied. The reason then why it should go unpunisheddoes not seem very clear.It is emphatically one of that natureto which I have just referred, in which the resentment of theinjured party will prompt him to take vengeance into his ownhands, and commit greater offence, if the laws of hiscountry refuse to punish the lesser.It is the nature of man,and no legislation can alter it, to protect himself where thelaws refuse their aid; very frequently where they do not; butwhere they will not give protection against injury, it is invain that they attempt to punish him who supplies by his ownenergy their remissness. Where the law refuses to punish thisoffence, the injured party will do it for himself, he will breakthe public peace, and commit the greatest of all crimes, andhe is rarely or never punished.Assaults, duels,assassinations, poisonings, will be the consequence. Theycannot be prevented; but, perhaps, by giving the aid of thelaw to punish the offence which they are intended to avenge,they will be less frequent; and it will, by taking away thepretext for the atrocious acts, in great measure insure theinfliction of the punishment they deserve. It is for thesereasons that the offence of adultery forms chapter of this”title.

Having given mature consideration to the subject,we have, after some hesitation, come to the conclusion thatit is not advisable to exclude this offence from the Code.Wethink the reasons for continuing to treat it as subject forthe cognizance of the criminal courts preponderate.….

…While we think that the offence of adultery oughtnot to be omitted from the Code, we would limit its cognizanceto adultery committed with married woman, and considering

930SUPREME COURT REPORTS

Athat there is much weight in the last remark in Note Q,regarding the condition of the women of this country, indeference to it we would render the male offender alone liableto punishment.We would, however, put the parties accusedof adultery on trial together, and empower the Court, in theevent of their conviction, to pronounce decree of divorceBagainst the guilty woman, if the husband sues for it, at thesame time that her paramour is sentenced to punishment byimprisonment or fine.By Mr. Livingstone’s Code, the womanforfeits her ‘matrimonial gains’, but is not liable to otherpunishment.

We would adopt Colonel Sleeman’s suggestion as to thepunishment of the male offender, limiting it to imprisonmentnot exceeding five years, instead of seven years allowed atpresent, and sanctioning the imposition of fine payable tothe husband as an alternative, or in addition.”[21]

D(Emphasis supplied)

5.5. It was in this backdrop that Section 497 came to be included inthe I.P.C.

6. THE QUEST FOR REFORM

E6.1. In June 1971, the 42[nd] Report of the Law Commission of India[22]analysed various provisions of the I.P.C. and made severalimportant recommendations. With respect to the offenceof‘adultery’, the Law Commission recommended that theadulterous woman must be made equally liable for prosecution,and the punishment be reduced from 5 years to 2 years. ThisFwas however, not given effect to.

6.2. In August 1997, the Law Commission of India in its 156[th] Report[23]noted that the offence of adultery under Section 497 is verylimited in scope in comparison to the misconduct of adultery in

G21 Penal Code prepared by The Indian Law Commissioners, (1838), The SecondReport 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.pdfH

divorce (civil proceedings). The section confers only upon thehusband the right to prosecute the adulterous male, but does notconfer any right on the aggrieved wife to prosecute heradultererous husband. It was recommended to introduce anamendment to incorporate the concept of equality between sexesin marriage vis-à-vis the offence of adultery. The proposedchange was to reflect the transformation of women’s status inIndian society.

However, the recommendation was not accepted.

6.3. In March 2003, the Malimath Committee on Reforms of CriminalJustice System[24], was constituted by the Government of India,which considered comprehensive measures for revamping theCriminal Justice System. The Malimath Committee made thefollowing recommendation with respect to “Adultery”:

“16.3.1 man commits the offence of adultery if he hassexual intercourse with the wife of another man withoutthe consent or connivance of the husband. The objectof this Section is to preserve the sanctity of the marriage.The society abhors marital infidelity. Therefore, thereis no good reason for not meting out similar treatmentto wife who has sexual intercourse with married man.16.3.2 The Committee therefore suggests that Section497 of the I.P.C. should be suitably amended to theeffect that “whosoever has sexual intercourse with thespouse of any other person is guilty of adultery……”

(Emphasis supplied)

The recommendations of the Malimath Committee on theamendment of Section 497 were referred to the Law Commission ofIndia, which took up the matter for study and examination. The same ispending consideration.

7. CONTEMPORARY INTERNATIONAL JURISPRUDENCE

Before addressing the issue of the constitutional validity of Section497 I.P.C., it would be of interest to review how‘adultery’ is treated invarious jurisdictions around the world.

24 Report of the Committee on Reforms of Criminal Justice System, Government ofIndia, Ministry of Home Affairs, chaired by Justice V.S. Malimath, (2003) Available at:https://mha.gov.in/sites/default/files/criminal_justice_system.pdf

AAdultery has been defined differently acrossvarious jurisdictions. Forinstance, adultery charges may require the adulterous relationship to be“open and notorious,”[25] or be more than single act of infidelity, orrequire cohabitation between the adulterer and the adulteress. Such adefinition would require finding on the degree of infidelity.[26 ] In otherinstances, the spouses may also be punishable for adultery. Such aBprovision raises doubt as to how that may secure the relationshipbetween the spouses and the institution of marriage. Another variation,insome jurisdictions is that cognizance of the offence of adultery is takenonly at the instance of the State, and its enforcement is generally ararity.C7.1. Various legal systems have found adulterous conduct sufficientlyinjurious to justify some form of criminal sanction. Such conductis one, which the society is not only unwilling to approve, but alsoattaches criminal label to it.

• United States of AmericaD

In the United States of America, 17out of 50States continueto treat ‘adultery’ as criminal offence under the State law.[27]The characterization of the offence differs from State to State.

In the case of Oliversonv. West Valley City[28], theEconstitutionality of the Utah adultery statute[29] was challenged.It was contended that the statute offends the right to privacyand violates substantive due process of law under the U.S.Constitution. The U.S. Court held that adultery is transgressionagainst the relationship of marriage which the law endeavors toprotect. The State of Utah had an interest in preventing adultery.FWhether to use criminal sanction was considered matterparticularly within the ambit of the legislature. Given the special

25 Illinois Criminal Code, 720 ILCS 5/11-35, Adultery

“(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,…”G26 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30Journal Of Family Law 45, 51-52 (1991)

27 AbhinavSekhri, The Good, The Bad, and The Adulterous: Criminal Law and Adulteryin India, 10 Socio Legal Review 47 (2014)28 875 F. Supp. 1465

29 Utah Code Ann. 76-7-103, “(1) married person commits adultery when he voluntarilyhas sexual intercourse with person other than his spouse. (2) Adultery is class BHmisdemeanour.”

interest of the State, it was considered rational to classify adulteryas crime.

similar provision exists in the State of New York, whereinadultery is treated as Class misdemeanor.[30]

By way of contrast, in the State of North Carolina, it washeld in the Judgment of Hobbs v.Smith[31], that adultery shouldnot be treated as criminal offence. The Superior Court ofNorth Carolina, relied on the judgment of the U.S. Supreme Court,in Lawrence v. Texas[32] wherein it was recognized that the rightto liberty provides substantial protection to consenting adults withrespect to decisions regarding their private sexual conduct. Thedecision of an individual to commit adultery is personal decision,which is sufficiently similar to other personal choices regardingmarriage, family, procreation, contraception, and sexuality, whichfall within the area of privacy. Following this reasoning inLawrence, the Superior Court of the State of North Carolinaheld that the State Law criminalizing adultery violated thesubstantive due process, and the right to liberty under theFourteenth Amendment to the U.S. Constitution, and the provisioncriminalizing adultery was declared unconstitutional.

• Canada

In Canada, the Criminal Code of Canada under Section 172imposes criminal sanctions for adulterous conduct. This provisionwas introduced in 1918[33], and continues to remain on the CriminalCode.

The Criminal Code of Canada prohibits endangering the moralsof children in home where one “participates in adultery or sexual

30 New York Penal Laws, Article 255.17-Adultery, “A person is guilty of adultery whenhe engages in sexual intercourse with another person at time when he has livingspouse, or the other person has living spouse. Adultery is class misdemeanour.”31 No. 15 CVS 5646 (2017) [Superior Court of North Carolina)32 539 US 558 (2003)

33 Criminal Code of Canada, 1985, Section 172, “(1) Every one who, in the home of achild, participates in adultery or sexual immorality or indulges in habitual drunkennessor any other form of vice, and thereby endangers the morals of the child or rendersthe home an unfit place for the child to be in, is guilty of an indictable offence andliable to imprisonment for term not exceeding two years.

(2) For the purposes of this section, “child” means person who is or appears to beunder the age of eighteen years.”

Aimmorality or indulges in habitual drunkenness or any other formof vice.”

Furthermore, Canada has provision for granting divorce in casesof “breakdown of marriages”, and adultery is ground forestablishing the same.[34]

B• Malaysia

In Malaysia, adultery is punishable as crime under the IslamicLaws. However, the Law Reform (Marriage and Divorce) Act,1976 made it civil wrong, for all non-Muslims. Similar to theposition in Canada, this Act makes adultery ground for grantingCdivorce, as it is proof of “Breakdown of Marriage”.[35]Interestingly though, the Act also allows either spouse, to be anaggrieved party and claim damages from the adulterer oradulteress.[36]

34 Divorce Act, 1968, “Section 8 (1) court of competent jurisdiction may, on applicationDby either or both spouses, grant divorce to the spouse or spouses on the ground thatthere has been breakdown of their marriage.

(2) Breakdown of marriage is established only if:(a)…..

(b) the spouse against whom the divorce proceeding is brought has, since celebrationof the marriage,(i) committed adultery, or …..”E35 S. 54(1)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,

35 S. 54(1)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,“54. (1) In its inquiry into the facts and circumstances alleged as causing or leadingto the breakdown of the marriage, the court shall have regard to one or more of thefollowing facts, that is to say:

(a) that the respondent has committed adultery and the petitioner finds it intolerableto live with the respondent…..”F36 S. 58, Law Reform (Marriage and Divorce) Act, 1976.[Malaysia] states,

“58. (1) On petition for divorce in which adultery is alleged, or in the answer of aparty to the marriage praying for divorce and alleging adultery, the party shall makethe alleged adulterer or adulteress co-respondent, unless excused by the court onspecial grounds from doing so.

(2) petition under subsection (1) may include prayer that the co-respondent becondemned in damages in respect of the alleged adultery.G(3) Where damages have been claimed against co-respondent— (a) if, after theclose of the evidence for the petitioner, the court is of the opinion that there is notsufficient evidence against the co-respondent to justify requiring him or her to reply,the co-respondent shall be discharged from the proceedings; or (b) if, at the conclusionof 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 itmay think fit, but so that the award shall not include any exemplary or punitiveHelement.”

• Japan

In Japan, the provision for adultery was somewhat similar to thepresent Section 497 of I.P.C.; it punished the woman and theadulterer only on the basis of the complaint filed by the husband.In case the act of adultery was committed with the consent ofthe husband, there would be no valid demand for prosecution ofthe offence[37]. This provision has since been deleted.[38] Adulteryis now onlya ground for divorce in Japan under the Civil Code.[39]

• South Africa

In South Africa, in the case of DE v.RH[40] The ConstitutionalCourt of South Africa struck down adultery as ground forseeking compensation by the aggrieved persons. The Court reliedon an earlier judgment of Green v. Fitzgerald[41 ]wherein it washeld that the offence of adultery has fallen in disuse, and “hasceased to be regarded as crime”.[42] The Court noted thateven though adultery was of frequent occurrence in South Africa,and the reports of divorce cases were daily published in thenewspapers in South Africa, the authorities took no notice of theoffence.

• Turkey

In Turkey, the decision of the Constitutional Court of Turkeyfrom 1996[43] is another instance where the Court struck down

37 S. 183, Penal Code, 1907 [Japan], “Whoever commits adultery with married womanwill be punished by prison upto two years. The same applies to the other party of theadultery. These offences are only prosecuted on demand of the husband. If the husbandhas allowed the Adultery, his demand is not valid.” [ as translated by Karl-FriedrichLenz, 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 & StateBar Journal, Vol. 25, (1950) at pp. 104-13439 Article 770, Civil Code, 1896. [Japan], “Article 770 (1)Only in the cases statedin the following items may either husband or wife file suit for divorce: (i)if spousehas committed an act of unchastity; ….”

40 RH v.DE (594/2013) [2014] ZASCA 133 (25 September 2014)41 1914 AD 88

43 AnayasaMahkemesi, 1996/15; 1996/34 (Sept. 23, 1996)

See also, AnayasaMahakemsi, 1998/3; 1998/28 (June 23, 1998) andAnayasaMahakemsi, 1997/45. 1998/48 (July 16, 1998)

the provision of adultery as criminal offence from the TurkishPenal Code of 1926. The Court noted that the provision wasviolative of the Right to Equality, as guaranteed by the TurkishConstitution since it treated men and women differently for thesame act.

B• South Korea

In South Korea, adultery as criminal offence was struckdown by the Constitutional Court of Korea in,what is popularlyknown as,the Adultery Case of February 26, 2015[44]. TheConstitutional Court of Korea held that Article 241, whichCprovided for the offence of adultery, was unconstitutional as itviolated Article 10 of the Constitution, which promotes the rightto personality, the right to pursue happiness, and the right to self-determination. The right to self-determination connotes the rightto sexual self-determination that is the freedom to choose sexualactivities and partners. Article 241 was considered to restrictDthe right to privacy protected under Article 17 of the Constitutionsince it restricts activities arising out of sexual life belonging tothe intimate private domain. Even though the provision had alegitimate object to preserve marital fidelity between spouses,and monogamy, the court struck it down as the provision failedEto achieve the “appropriateness of means and leastrestrictiveness” The Court held as follows:

“In recent years, the growing perception of the Koreansociety has changed in the area of marriage and sex withthe changes of the traditional family system and familyFmembers’ role and position, along with rapid spread ofindividualism and liberal views on sexual life. Sexual lifeand love is private matter, which should not be subjectto the control of criminal punishment. Despite it is unethicalto violate the marital fidelity, it should not be punished bycriminal law….

…The exercise of criminal punishment should be the lastresort for the clear danger against substantial legalinterests and should be limited at least. It belongs to free

H44 Adultery Case, 27-1 (A) KCCR 20, February 26, 2015

domain of individuals for an adult to have voluntary sexualrelationships, but it may be regulated by law when it isexpressed and it is against the good sexual culture andpractice. It would infringe on the right to sexual self-determination and to privacy for State to intervene andpunish sexual life which should be subject to sexualmorality and social orders.

The tendency of modern criminal law directs that the Stateshould not exercise its authority in case an act, in essence,belongs to personal privacy and is not socially harmful orin evident violation of legal interests, despite the act is incontradiction to morality. According to this tendency, it isa global trend to abolish adultery crimes.

(Emphasis supplied)

The Court concluded that it was difficult to see how criminalization ofadultery could any longer serve the public interest of protecting themonogamy-based marriage system,maintain good sexual culture, and themarital fidelity between spouses.A consideration of Article 241 whichpunishes adultery failed to achieve the appropriateness of means andleast restrictiveness. Since the provision excessively restricted person’ssexual autonomy and privacy by criminally punishing the private andintimate domain of sexual life, the said penal provision was said to havelost the balance of State interest and individual autonomy.

8.PREVIOUS CHALLENGES TO ADULTERY IN INDIA

This court has previously considered challenges to Section 497inter alia on the ground that the impugned Section was violative ofArticles 14 and 15 of the Constitution.

8.1. In Yusuf Abdul Aziz v. State of Bombay[45], Section 497 waschallenged before this Court inter alia on the ground that itcontravened Articles 14 and 15 of the Constitution, since thewife who is pari delicto with the adulterous man, is not punishableeven as an “abettor.” ConstitutionBench of this Court took theview that since Section 497 was special provision for the benefitof women, it was saved by Article 15(3) which is an enablingprovision providing for protective discrimination.

45 1954 SCR 930

AIn Yusuf Aziz(supra),the Court noted that both Articles 14 and15 read together validated Section 497.

8.2. Later, in Sowmithri Vishnu v. Union of India & Anr.[46], three-judge bench of this Court addressed challenge to Section 497as being unreasonable and arbitrary in the classification madeBbetween men and women, unjustifiably denied women the rightto prosecute her husband under Section 497.

It was contended that Section 497 conferred right onlyupon the husband of the adulterous woman to prosecute theadulterer;however, no such right was bestowed upon the wife ofan adulterous man. The petitioners therein submitted that Section497 was flagrant violation of gender discrimination againstwomen. The Court opined that the challenge had no legal basisto rest upon. The Court observed that the argument really centredon the definition, which was required to be re-cast to punish boththe male and female offender for the offence of adultery.

After referring to the recommendations contained in the42[nd] Report of the Law Commission of India, the Court notedthat there were two opinions on the desirability of retaining Section497. However it concluded by stating that Section 497 could notbe struck down on the ground that it would be desirable to deleteEit from the statute books.

The Court repelled the plea on the ground that it is commonlyaccepted that it is the man who is the ‘seducer’, and not thewoman. The Court recognized that this position may haveundergone some change over the years, but it is for the legislatureFto consider whether Section 497 should be amended appropriatelyso as to take note of the ‘transformation’ which the society hasundergone.

8.3. In V. Revathi v. Union of India[47],a two-judge bench of thiscourt upheld the constitutional validity of Section 497, I.P.C. andGSection 198(2) of the Cr.P.C. The petitioner contended thatwhether or not the law permitted husband to prosecute hisdisloyal wife, wife cannot be lawfully disabled from prosecutingher disloyal husband. Section 198(2) Cr.P.C. operates as fetter

46 (1985) Supp SCC 137H47 (1988) 2 SCC 72

on the wife in prosecuting her adulterous husband. Hence, therelevant provision is unconstitutional on the ground of obnoxiousdiscrimination.

This Court held that Section 497 I.P.C. and Section 198(2)Cr.P.C. together form legislative package. In essence, theformer being substantive, and the latter being largely procedural.Women, under these provisions, neither have the right toprosecute, as in case of wife whose husband has an adulterousrelationship with another woman; nor can they be prosecuted asthe pari delicto.

8.4. The view taken by the two-judge bench in Revathi (supra),thatthe absence of the right of the wife of an adulterous husband tosue him, or his paramour, was well-balanced by the inability ofthe husband to prosecute his adulterous wife for adultery,cannotbe sustained.The wife’s inability to prosecute her husband andhis paramour, should be equated with the husband’s ability toprosecute his wife’s paramour.

9. In the present case, the constitutionality of Section 497 isassailed by the Petitioners on the specific grounds that Section 497 isviolative of Articles 14, 15 and 21.

9.1. Mr. Kaleeswaram Raj learned Counsel appearing for thePetitioners and Ms. Meenakshi Arora, learned SeniorCounselappearing for the Intervenorsinter alia submitted thatSection 497 criminalizes adultery based on classification madeon sex alone. Such classification bears no rational nexus withthe object sought to be achieved and is hence discriminatory.

It was further submitted that Section 497 offends the Article14 requirement of equal treatment before the law anddiscriminates on the basis of marital status. It precludes womanfrom initiating criminal proceedings. Further, the consent of thewoman is irrelevant to the offence. Reliance was placed in thisregard on the judgment of this Court in W. Kalyani v. State[48].

The Petitioners submit that the age-old concept of the wifebeing the property of her husband, who can easily fall prey toseduction by another man,can no longer be justified as rationalbasis for the classification made under Section 497.

An argument was made that the ‘protection’ given towomen under Section 497 not only highlights her lack of sexualautonomy, but also ignores the social repercussions of such anoffence.

The Petitioners have contended that Section 497 of the I.P.C.is violative of the fundamental right to privacy under Article 21,since the choice of partner with whom she could be intimate,falls squarely within the area of autonomy over person’ssexuality. It was submitted that each individual has an unfetteredright (whether married or not; whether man or woman) to engagein sexual intercourse outside his or her marital relationship.

The right to privacy is an inalienable right, closely associatedwith the innate dignity of an individual, and the right to autonomyand self-determination to take decisions. Reliance was placedon the judgment in Shafin Jahan v. Asokan K.M. & Ors.[49]where this Court observed that each individual is guaranteed theDfreedom in determining the choice of one’s partner, and anyinterference by the State in these matters, would have seriouschilling effect on the exercise of the freedoms guaranteed bythe Constitution.

The Petitioners placed reliance on the judgment of K.S.Puttaswamy v. Union of India[50 ]wherein nine-judge bench ofthis Court held that the right to make decisions on vital mattersconcerning one’s life are inviolable aspects of human personality.This Court held that:

“ 169. …..The autonomy of the individual is the ability toFmake decisions on vital matters of concern to life.Privacyhas not been couched as an independent fundamental right.But that does not detract from the constitutional protectionafforded to it, once the true nature of privacy and itsrelationship with those fundamental rights which areGexpressly protected is understood. Privacy lies across thespectrum of protected freedoms. The guarantee of equalityis guarantee against arbitrary state action. It preventsthe state from discriminating between individuals. The

49 2018 SCC Online SC 343H50 (2017) 10 SCC 1

destruction by the state of sanctified personal spacewhether of the body or of the mind is violative of theguarantee against arbitrary state action….”

(Emphasis supplied)

The Petitioners and Intervenors have prayed for strikingdown Section 479 I.P.C. and Section 198(2) of the Cr.P.C. asbeing unconstitutional, unjust, illegal, arbitrary, and violative ofthe Fundamental Rights of citizens.

9.2. On the other hand, Ms. Pinky Anand, learned ASG forcefullysubmitted that adultery must be retained as criminal offence inthe I.P.C. She based her argument on the fact that adultery hasthe effect of breaking up the family which is the fundamentalunit in society. Adultery is undoubtedly morally abhorrent inmarriage, and no less an offence than the offences of battery, orassault. By deterring individuals from engaging in conduct whichis potentially harmful to marital relationship, Section 497 isprotecting the institution of marriage, and promoting social well-being.

The Respondents submit that an actwhich outrages themorality of society,and harms its members, ought to be punishedas crime. Adultery falls squarely within this definition.

The learned ASG further submitted that adultery is not anact that merely affects just two people;it has an impact on theaggrieved spouse, children, as well as society.Any affront to themarital bond is an affront to the society at large. The act ofadultery affects the matrimonial rights of the spouse, and causessubstantial mental injury.

Adultery is essentially violence perpetrated by an outsider,with complete knowledge and intention, on the family which isthe basic unit of society.

It was argued on behalf of the Union of India that Section497 is valid on the ground of affirmative action. All discriminationin favour of women is saved by Article 15(3), and hence wereexempted from punishment. Further, an under-inclusive definitionis not necessarily discriminatory.The contention that Section 497does not account for instances where the husband has sexual

CDE

Arelations outside his marriage would not render it unconstitutional.

It was further submitted that the sanctity of family life, andthe right to marriage are fundamental rights comprehended inthe right to life under Article 21. An outsider who violates andinjures these rights must be deterred and punished in accordanceBwith criminal law.

It was finally suggested that if this Court finds any part ofthis Section violative of the Constitutional provisions, the Courtshould read down that part, in so far as it is violative of theConstitution but retain the provision.

CDISCUSSION AND ANALYSIS

10.Section 497 is pre-constitutional law which was enacted in1860. There would be no presumption of constitutionality in apre-constitutional law (like Section 497) framed by foreignlegislature. The provision would have to be tested on the anvil ofDPart 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 andincongruities,such as:E

i.Under Section 497, it is only the male-paramour who ispunishable for the offence of adultery. The woman who ispari delictowith the adulterous male, is not punishable, evenas an ‘abettor’.

The adulterous woman is excluded solely on the basisFof gender, and cannot be prosecuted for adultery[51].

ii.The Section only gives the right to prosecute to the husbandof the adulterous wife. On the other hand, the wife of theadulterous man, has no similar right to prosecute her husbandor his paramour.

iii.Section 497 I.P.C. read with Section 198(2) of the Cr.P.C.only empowers the aggrieved husband, of married wifewho has entered into the adulterous relationship to initiateproceedings for the offence of adultery.

H51 W Kalyani v. State, (2012) 1 SCC 358; at para 10.

iv.The act of married man engaging in sexual intercoursewith an unmarried or divorced woman, does not constitute‘adultery’ under Section 497.

v.If the adulterous relationship between man and marriedwoman, takes place with the consent and connivance ofher husband, it would not constitute the offence of adultery.

The anomalies and inconsistencies in Section 497 as stated above,would render the provision liable to be struck down on the groundof it being arbitrary and discriminatory.

12. The constitutional validity of section 497 has to be tested onthe anvil of Article 14 of the Constitution.

12.1.Any legislation which treats similarly situated persons unequally,or discriminates between persons on the basis of sexalone, isliable to be struck down as being violative of Articles 14 and 15of the Constitution, which form the pillars against the vice ofarbitrariness and discrimination.D

12.2.Article 14 forbids class legislation; however, it does not forbidreasonable classification. reasonable classification is permissibleif two conditions are satisfied:

i.The classification is made on the basis of an ‘intelligibledifferentia’ which distinguishes persons or things that aregrouped together, and separates them from the rest of thegroup; and

ii.The said intelligible differentia must have rational nexuswith the object sought to be achieved by the legal provision.

The discriminatoryprovisions in Section 497 have to beconsidered with reference to the classification made. Theclassification must have some rational basis,[52 ]or nexuswith the object sought to be achieved.

With respect to the offence of adultery committed by twoconsenting adults, there ought not to be any discrimination

52 E.V. Chinnaiahv. State of A.P., (2005) 1 SCC 394 (A legislation may not be amenableto challenge on the ground of violation of Article 14 of the Constitution if itsintention is to give effect to Articles 15 and 16 or when the differentiation is notunreasonable or arbitrary).

on the basis of sex alone since it has no rational nexus withthe 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 toprosecute:

It is only the husband of the married woman whoindulges in adultery,is considered to be an aggrieved persongiven the right to prosecute for the offence of adultery.

Conversely, married woman who is the wife of theadulterous 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 forcommitting adultery, and not the adulterous woman,eventhough the relationship is consensual; the adulterous womanis not even considered to be an “abettor” to the offence.

The aforesaid classifications were based on the historical contextin 1860 when the I.P.C. was enacted. At that point of time,women had no rights independent of their husbands, and weretreated as chattel or ‘property’ of their husbands.

Hence, the offence of adultery was treated as an injury to thehusband, since it was considered to be ‘theft’ of his property,for which he could proceed to prosecute the offender.

The said classification is nolonger relevant or valid,and cannotwithstand the test of Article 14, and hence is liable to be struckdown on this ground alone.

12.3.A law which deprives women of the right to prosecute, is notgender-neutral. Under Section 497, the wife of the adulterousmale, cannot prosecute her husband for marital infidelity.Thisprovision is thereforeex facie discriminatory againstwomen,and violative of Article 14.

Section 497 as it stands today, cannot hide in the shadowsagainst the discerning light of Article 14 which irradiates anythingwhich is unreasonable, discriminatory, and arbitrary.

13. law which could have been justified at the time of itsenactment with the passage of timemay become out-datedanddiscriminatory with the evolution of society and changed circumstances.[53]What may have once been perfectly valid legislation meant to protectwomen in the historical background in which it was framed, with thepassage of time of over century and half, may become obsolete andarchaic.

provision previously not held to be unconstitutional, can berendered so by later developments in society, including gender equality.[54]

Section 497 of the I.P.C. was framed in the historical context thatthe infidelity of the wife should not be punished because of the plight ofwomen in this country during the 1860’s. Women were married whilethey were still children, and often neglected while still young, sharing theattention of husband with several rivals.[55] This situation is not true 155years afterthe provision was framed. With the passage of time, education,development in civil-political rights and socio-economic conditions,thesituation has undergone sea change. The historical background in whichSection 497 was framed, is no longer relevant in contemporary society.

It would be unrealistic to proceed on the basis that even in aconsensual sexual relationship, married woman, who knowingly andvoluntarily enters into sexual relationship with another married man, isa ‘victim’, and the male offender is the ‘seducer’.

Section 497 fails to consider both men and women as equallyautonomous individuals in society.

In Anuj Garg v. Hotel Assn. of India,[56 ]this Court held that:

“20. At the very outset we want to define the contours of thediscussion which is going to ensue. Firstly, the issue floatedby the State is very significant, nonetheless it does not fall inthe same class as that of rights which it comes in conflictwith, ontologically. Secondly, the issue at hand has no social

53 Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222; See also Ratan Arya v. State of Tamil Nadu, (1986) 3 SCC 385

54 John Vallamattomv. Union of India, (2003) 6 SCC 611

55 ‘A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of LordThomas Babington Macaulay, Note Q

56 (2008) 3 SCC 1

spillovers. The rights of women as individuals rest beyonddoubts in this age.If we consider (various strands of) feministjurisprudence as also identity politics, it is clear that timehas come that we take leave of the theme encapsulated underSection 30. And thirdly we will also focus our attention onthe interplay of doctrines of self-determination and anindividual’s best interests.

26. When discrimination is sought to be made on thepurported ground of classification, such classification mustbe founded on rational criteria.The criteria which inabsence of any constitutional provision and, it will bearrepetition to state, having regard to the societal conditionsas they prevailed in early 20th century, may not be rationalcriteria in the 21st century.In the early 20th century, thehospitality sector was not open to women in general. In thelast 60 years, women in India have gained entry in all spheresof public life. They have also been representing people atgrassroot democracy. They are now employed as drivers ofheavy transport vehicles, conductors of service carriages,pilots, et. al. ...”

(Emphasis supplied)

The time when wives were invisible to the law, and lived in theshadows of their husbands, has long since gone by. legislation thatperpetuates such stereo-types in relationships, and institutionalisesdiscrimination is clear violation of the fundamental rights guaranteedFby Part III of the Constitution.

There is therefore, no justification for continuance of Section 497of the I.P.C. as framed in 1860, to remain on the statute book.

14. Article 15(3) of the Constitution is an enabling provisionwhichpermits the State to frame beneficial legislation in favour of women andGchildren,to protect and uplift this class of citizens.

Section 497 is penal provision for the offence of adultery, an actwhich is committed consensually between two adultswho have strayedout of the marital bond. Such provision cannot be considered to be abeneficial legislation covered by Article 15(3) of the Constitution.

The true purpose of affirmative action is to uplift women andempower them in socio-economic spheres. legislation which takesaway the rights of women to prosecute cannot be termed as ‘beneficiallegislation’.

This Court in Thota Sesharathamma and Anr. v. ThotaManikyamma (Dead) by Lrs. And Ors.[57 ]held that:

“Art. 15(3) relieves from the rigour of Art. 15(1) and chargesthe State to make special provision to accord to women socio-economic equality. As fact Art. 15(3) as fore runner tocommon code does animate to make law to accord socio-economic equality to every female citizen of India,irrespective of religion, race, caste or religion.”

In W. Kalyani v. State[58 ]this Court has recognised the gender biasin Section 497. The court in Kalyani (supra) observed that “The provisionis currently under criticism from certain quarters for showing astring gender bias for it makes the position of married womanalmost as property of her husband.”

The purpose of Article 15(3) is to further socio-economic equalityof women. It permits special legislation for special classes. However,Article 15(3) cannot operate as cover for exemption from an offencehaving penal consequences.

Section which perpetuates oppression of women is unsustainablein law, and cannot take coverunder the guise of protective discrimination.

15. The Petitioners have contended that the right to privacy underArticle 21 would include the right of twoadults to enter into sexualrelationship outside marriage.

The right to privacy and personal liberty is, however, not an absoluteone; it is subject to reasonable restrictions when legitimate public interestis involved.

It is true that the boundaries of personal liberty are difficult to beidentified in black and white; however, such liberty must accommodatepublic interest. The freedom to have consensual sexual relationshipoutside marriage by married person,does not warrant protection underArticle 21.

57 (1991) 4 SCC 31258 (2012) 1 SCC 358

AIn the context of Article 21, an invasion of privacy by the Statemust be justified on the basis of law that is reasonable and valid. Suchan invasion must meet three-fold requirement as set held in Justice K.S. Puttaswamy (Retd.) &Anr. v. UOI &Anr.(supra): (i) legality, whichpostulates the existence of law; (ii) need, defined in terms of legitimateState interest, and (iii) proportionality, which ensures rational nexusBbetween the object and the means adopted. Section 497 as it standstoday, fails to meet the three-fold requirement, and must therefore bestruck down.

16. The issue remains as to whether ‘adultery’ must be treated asa penal offence subject to criminal sanctions, or marital wrong which isCa valid ground for divorce.

16.1.One view is that family being the fundamental unit in society,ifthe same is disrupted, it would impact stability and progress. TheState,therefore, has legitimate public interest in preserving theinstitution of marriage.

Though adultery may be an act committed in private bytwo consenting adults, it is neverthelessnot victim-less crime.It violates the sanctity of marriage, and the right of spouse tomarital fidelity of his/her partner. It impacts society as it breaksthe fundamental unit of the family, causing injury not only to theEspouses of the adulteror and the adulteress, it impacts the growthand well-being of the children, the family, and society in general,and therefore must be subject to penal consequences.

Throughout history, the State has long retained an area ofregulation in the institution of marriage. The State has regulatedFvarious aspects of the institution of marriage, by determining theage when an adult can enter into marriage; it grants legalrecognition to marriage; it creates rights in respect of inheritanceand succession; it provides for remedies like judicial separation,alimony, restitution of conjugal rights; it regulates surrogacy,adoption, child custody, guardianship, partition, parentalGresponsibility; guardianship and welfare of the child. These areall areas of private interest in which the State retains legitimateinterest, since these are areas which concern society and publicwell-being as whole.

Adultery has the effect of not only jeopardisingthe marriagebetween the two consenting adults, but also affects the growth

and moral fibre of children. Hence the State has legitimatepublic interest in making it criminal offence.

16.2.The contra view is that adulteryis marital wrong, whichshouldhave only civil consequences. wrong punishable with criminalsanctions,must be public wrong against society as whole,and not merely an act committed against an individual victim.

To criminalize certain conduct is to declare that it is apublic wrong which would justify public censure, and warrantthe use of criminal sanction against such harm and wrong doing.

The autonomy of an individual to make his or her choiceswith respect to his/her sexuality in the most intimate spaces oflife, should be protected from public censure through criminalsanction. The autonomy of the individual to take such decisions,which are purely personal, would be repugnant to any interferenceby the State to take action purportedly in the ‘best interest’ ofthe individual.

Andrew Ashworth and Jeremy Horder in their commentarytitled ‘Principles of Criminal Law’[59 ]have stated that thetraditional starting point of criminalization is the ‘harm principle’the essence of which is that the State is justified in criminalizinga conduct which causes harm to others. The authors opine thatthe three elements for criminalization are: (i) harm, (ii) wrongdoing, and (iii) public element, which are required to be provedbefore the State can classify wrongful act as criminal offence.

John Stuart Mill states that “the only purpose for which powercan be rightly exercised over the member of civilizedcommunity against his will is to prevent harm to others.”[60]

The other important element is wrongfulness. AndrewSimester and Andreas von Hirsch opine that necessary pre-requisite of criminalization is that the conduct amounts to moralwrong.[61 ]That even though sexual infidelity may be morally wrongconduct, this may not be sufficient condition to criminalize thesame.

59 Oxford University Press, (7thEdn.) May 2013

60 Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman,Roberts, & Green Co. 1869, 4[th] Edn.

61 P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The PrinciplesOf Criminalisation, Oxford: Hart Publishing (2011)

A17. In my view, criminal sanction may be justified where there isa public element in the wrong, such as offences against State security,and the like. These are public wrongs where the victim is not the individual,but the community as whole.

Adultery undoubtedly is moral wrong qua the spouse and theBfamily. The issue is whether there is sufficient element of wrongfulnessto society in general, in order to bring it within the ambit of criminal law?

The element of public censure, visiting the delinquent with penalconsequences, and overriding individual rights, would be justified onlywhen the society is directly impacted by such conduct. In fact, muchCstronger justification is required where an offence is punishable withimprisonment.

The State must follow the minimalist approach in the criminalizationof offences, keeping in view the respect for the autonomy of the individualto make his/her personal choices.

The right to live with dignity includes the right not to be subjectedto public censure and punishment by the State except where absolutelynecessary. In order to determine what conduct requires State interferencethrough criminal sanction, the State must consider whether thecivil remedywill serve the purpose. Where civil remedy for wrongful act isEsufficient, it may not warrant criminal sanction by the State.

18. In view of the aforesaid discussion, and the anomalies in Section497, as enumerated in para 11 above, it is declared that:

(i)Section 497 is struck down as unconstitutional being violative ofArticles 14, 15 and 21 of the Constitution.F(ii)Section 198(2) of the Cr.P.C.which contains the procedure forprosecution under Chapter XX of the I.P.C. shall beunconstitutional only to the extent that it is applicable to the offenceof Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V. Rewathi(supra)Gand W. Kalyani(supra) hereby stand overruled.

Kalpana K. Tripathy Writ Petition allowed.