Why in news?
=>The Supreme Court decriminalised the offence of adultery by holding Section 497 of the Indian Penal Code (IPC) unconstitutional.
=>This judgment, passed by a bench of five judges, struck down the section 497 of Indian Penal Code, 1860 along with section 198 of Cr.P.C. as unconstitutional, thereby decriminalizing the offence of adultery.
What was the issue?
=>India was one of the few countries in the world that still considered adultery an offence. The appalling attribute of the Indian definition of this crime was that it did not punish the erring spouses, but instead punished the adultering man, or rather ‘the outsider’, for having extra-marital relations with a woman who he knows to be married.
=>It was only an offence if the husband had not consented to this relation, implicitly suggesting that the wife was the property of her husband. Hence, the husband was considered to be the “victim” of adultery and could file a case. The same recourse was, however, not available to the wife
How punishing the adultering man was inappropriate?
=>For any act to be a crime, it has to be committed against society at large. The main argument for retaining the criminal provision was that the outsider should be punished for breaching the matrimonial unit and that the law should mandate punishment for such a moral wrong.
=>This violation was seen as a crime against the institution of marriage, thus justifying it to be a breach of security and well-being of society.
=>This argument was unanimously dismissed by the bench. The court observed that the issue of adultery between spouses was a private matter, and could be a ground for divorce under civil law.
=>It did not warrant the use of criminal sanction against any party involved. Moreover, no justification can be given by the state for penalising people with imprisonment for making intimate and personal choices.
Supreme Court on Gender Neutrality:
=>Further, addressing the issue of making the penal provisions of adultery gender neutral, the court held that even then the matter was private, and anything otherwise would be a grave intrusion into the privacy of individuals.
=>In simple terms, as the law previously stood, in this offence, the victim would be the husband alone, whose property (i.e. the wife) was trespassed upon.
=>Dismissing this regressive patriarchal notion of women being “chattels” of their husband, the court held that Section 497, as it existed, denied women ownership of their sexuality and agency over their own relationships.
How Section 497 was hampering Fundamental Rights of the women?
=>The court even relied on K.S. Puttaswamy v. Union of India to explain this deprivation of autonomy as a violation of their right to privacy and to live with dignity, thus violating their fundamental rights under Article 21 of the Constitution.
=>The adultery provision also violated the right to equality guaranteed under Article 14. The court observed that women were treated as passive entities, and possessions of their husband. The fact that the commission of the offence would have been in the absence of the husband’s consent proved the inequality between the spouses.
=>Section 497 consumed the identity of a wife, as an individual with rights as an equal partner to the marriage, tipping the scales to favour the husband.
=>Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III [of the Constitution] guarantees. Therefore, not affording both parties to a marriage equal rights and opportunities would be discriminatory and a violation of their right to equality.
=>Previous challenges to this provision claimed that exempting women under Section 497 from prosecution and being prosecuted was ‘protecting’ them and was in consonance with Article 15(3) of the Constitution that allowed the state to make laws for the benefit of women and children.
Why did the British-era law exempt women?
=>In fact, the First Law Commission of 1837, under Lord Macaulay, had not included adultery as a crime in the original IPC it had drafted, counting it only as a civil wrong.
=>The Second Law Commission in 1860, headed by Sir John Romilly, made adultery a crime but spared women from punishment for adultery due to the conditions in which they lived, child marriage, age gap between spouses, and polygamy. The drafters of the IPC looked at this as being sympathetic to women, and also viewed men as the real perpetrators.
=>In 1954, the Supreme Court too treated Section 497 as a special provision made in favour of women in exercise of the state’s powers under Article 15(3) of the Constitution (Yusuf Abdul Aziz vs State of Bombay).
=>In 1988, the court upheld Section 497 by saying only an “outsider” is liable and this exemption is basically a “reverse discrimination in favour of women” (Revathi vs Union of India).
=>The Supreme Court held that breaking a matrimonial home is no less serious a crime than breaking open a house, and refused to strike down Section 497 as this was a question of policy, not constitutionality. These judgments now stand overruled.
Appraisal of the verdict:
=>The provision is a reflection of the social dominance of men prevalent 150 years ago. It is surprising to see that even after the verdict many have opposed this decision of the Supreme Court, most countries around the world have done away with this practice. While the struggle for equality in many other spheres still continues, the decision to scrap this archaic law is definitely a step in the right direction.
What was the belief cross countries & cultures?
=>Not just the IPC, most legal systems used to treat adultery as a serious crime. The Encyclopedia of Diderot & d’Alembert, Vol. 1 (1751) too equated adultery with theft: “Adultery is, after homicide, the most punishable of all crimes, because it is the most cruel of all thefts.”
=>In 1707, English Lord Chief Justice John Holt stated that a man having sexual relations with another man’s wife was “the highest invasion of property”.
Hindu & Islamic laws:
=>Hindu and Islamic laws prescribed punishment for both men and women, and also for relations with an unmarried woman.
=>Manu’s treatise gave adultery an extremely broad definition “offering presents to a woman, roaming with her, touching her ornaments and dress and sitting with her on bed, all these acts are adulterous” —and prescribed death as punishment for adultery, provided the offender was not a Brahmin.
=>For wives involved in marital fidelity, Yajnavalkya’s treatise declared: “An adulterous wife should be deprived of her authority over the servants, should be made to wear dirty clothes, should be given food just sufficient to enable her to live, should be treated with scorn and be made to lie on the ground: she becomes pure when she has her monthly period, but if she conceives during the adulterous intercourse, she should be abandoned.”
=>Islamic law, which prescribed 100 lashes for adultery, defined the offence in narrow terms; intercourse outside marriage but made it almost impossible to prove, by insisting on the testimony of four witnesses to the actual sexual act.
=>If four witnesses do not testify, then a punishment of 80 lashes was to be given to the person making the allegation, as well as to those witnesses who did testify — and their evidence would never be accepted in the future.
Pic courtesy:Times of India – Indiatimes.com
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