New Delhi: The Supreme Court on Friday struck down the 158-year-old colonial-era Section 497 of the Indian Penal Code, which criminalised adultery, as unconstitutional, saying it violated a woman’s right to dignity, which resulted in infringement of Article 21 of the Constitution.
Adultery, according to the provision, is the consensual sexual intercourse between a married woman and an individual who is not her spouse, or between a married man and a woman who is not his wife. But it is not an offence if the sexual act is done with the consent or connivance of the husband.
The Chief Justice Dipak Misra, said what might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts.
The CJI said treating adultery an offence, would tantamount to the state entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife.
It is a discriminatory command and also a socio-moral one. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle.
The CJI said the theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships.
He held that Section 497 IPC as unconstitutional and adultery should not be treated as an offence. In view such a declaration, it is appropriate to declare Section 198 Cr.P.C, which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path, he said and overruled the 1985 verdict, which upheld the Section. Justice R.F. Nariman in his judgement stated that Section 497 was an archaic provision, which had lost its rationale.
