The Parliamentary Committee on Home Affairs has suggested that adultery should be re-instituted as a crime in the Bharatiya Nyaya Sanhita (BNS), 2023, the proposed law to replace the Indian Penal Code (IPC), 1860.
The Parliamentary Committee adopted reports on the three Bills meant to replace the IPC, The Code of Criminal Procedure (CrPC), 1973, and The Indian Evidence Act, 1872, last week.
What is the legal position on adultery now?
Until 2018, the IPC contained Section 497, which defined adultery as a criminal offence that attracted up to five years in prison, or a fine, or both. However, only men could be punished under Section 497, not women. The section read:
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery… In such case the wife shall not be punishable as an abettor.”
This was contrary to both the common understanding and the dictionary definition of adultery, which is simply voluntary sexual intercourse between a married person, man or woman, and someone other than that person’s current spouse or partner.
In Joseph Shine vs Union Of India (September 27, 2018), a five-judge Bench of the Supreme Court led by then Chief Justice of India (CJI) Dipak Misra, and comprising current CJI D Y Chandrachud, and Justices A M Khanwilkar, R F Nariman, and Indu Malhotra, unanimously struck down Section 497 of the IPC on grounds that included discrimination.
And what has the House Committee recommended?
The 350-page report on the BNS, 2023, which was adopted by the Committee on November 10, said that adultery should be reinstated as a criminal offence, but it should be made gender-neutral — that is, both men and women should be punished for it.
The Committee recommended: “…This section only penalised the married man, and reduced the married woman to be a property of her husband… The Committee is of the view that the institution of marriage is considered sacred in Indian society and there is a need to safeguard its sanctity.”
In essence, the report has argued that Section 497 was struck down on grounds of discrimination, and making it gender-neutral would address this deficiency.
So what is the problem with this?
The discriminatory nature of Section 497, and its “manifest arbitrariness” in punishing only men for adultery, was just one of the grounds on which the court had struck down the provision. The judgment went much farther.
Section 497 was violative of Articles 14, 15, and 21 of the Constitution (which protect the fundamental rights to equality, non-discrimination, and life respectively) the Bench ruled.
The court underlined the autonomy of women as a facet of human dignity. Writing for himself and Justice Khanwilkar, CJI Misra declared that the husband is neither master of his wife, nor does he have legal sovereignty over her — and that “any system treating a woman with indignity … invites the wrath of the Constitution”.
Also, adultery “does not fit into the concept of crime”, the court ruled. “We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce,” the CJI said.
The judgment cautioned that “For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two.”
Justice Malhotra, the only woman judge on the Bench, observed that Section 497 was “replete with anomalies” — for instance, an adulterous relationship would not be an offence if the married woman had her husband’s consent. Also, a wife could not prosecute her husband or his lover, even if they committed this offence.
Justice Nariman pointed out that “ancient notions” of the man being the seducer and the woman being the victim, no longer applied.
Justice Chandrachud, who disagreed with the judgment of his father, former CJI Y V Chandrachud’s 1985 ruling in Sowmithri Vishnu vs. Union of India, which upheld adultery as a crime, described Section 497 as a relic of Victorian morality that “proceeds on the notion that the woman is but a chattel; the property of her husband”.
The court also struck down Section 198(2) of the CrPC to the extent that it applies to the offence of adultery under Section 497. Section 198(2) CrPC says that in certain cases, courts can take cognizance of a matter only if approached by an aggrieved party and, in cases of adultery, only the husband shall be deemed as “aggrieved”.
Can the Supreme Court’s decision in this case be undone?
A ruling of the SC is the law of the land. Parliament cannot simply pass a law that contradicts a ruling of the top court. However, it can pass a law that removes the basis of the court’s judgment. Such a law can be both retrospective and prospective.
In Madras Bar Association vs. Union of India (2021), an SC Bench of Justices L Nageswara Rao, Hemant Gupta, and S Ravindra Bhat said: “The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the basis of the judgment pointing out the defect is removed.”
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