– Tanaya Das


Women have been denied particularly sexual and economic freedoms from the ancient period. Regarding status and privileges for women dualism persist in the society. On one hand she is gloried and adored as goddesses on the other hand rigorous sanctions are imposed on her.

Earlier the society used to only propagate patriarchal which demanded rigorous and challenging standards of purity and chastity from women, now it has shifted to become the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man. The subversion and repression of women under any circumstance cannot be given the seal of legitimacy.

Law and society are intricately connected. And expression of oppression of social values are found in law. However, certainty of law is necessary but with dynamic societal changes law need to progress and this demands penetrating look to the past. Nevertheless, the society is slow to adapt the with the progressive law.

Background Of The Case

The writ petition was filed under Article 32 challenging the Constitutional validity of Section 497 of Indian Penal Code and Section 198 of Code of Criminal Procedure.

The bench was comprised of: Dipak Misra, CJI, A.M. Khanwilkar, J., R.F. Nariman, J., Dr Dhananjaya Y Chandrachud, J, Indu Malhotra, J.

The Apex Court earlier also taken note of these authorities. A three-judge bench in Yusuf Abdul Aziz v. State of Bombay , Sowmithri Vishnu v. Union of India and another , V. Revathi v. Union of India and others and W. Kalyani v. State through Inspector of Police and another.

Yusuf Abdul Aziz v. State of Bombay

In this case the appellant was being prosecuted for adultery and the issue was raised that the provision is violative of Articles 14 and 15 as offence of adultery which is committed by man only and the provision absolve the liability of woman even as an abettor. It was held by the court that section 497 is a special provision. Thus, it is saved by Article 15(3) and does not offend Articles 14 and 15.

Even though the court held the validity of the provision, but it is important to highlight an instructive passage of M.C. Chagla, C.J (Chief Justice of Bombay High Court: “Mr. Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands.”

Sowmithri Vishnu v. Union of India and another

The writ petition was filed under Article 32 of the Constitution and it was contended by the petitioner that the provision confers the right to prosecute the adulterer only on husband and the wife does not have any such right either to prosecute the woman with whom her husband has committed adultery or her husband who has committed adultery with another woman.

The provision is under-inclusive in nature as it does not take cases in which husband has sexual relations with an unmarried woman. Thus, the provision is a flagrant instance of gender discrimination, legislative despotism and male chauvinism.

The court referred to the submission and held that the ambit of adultery should be expanded and both man and woman should be punished for the same. If this ground would be accepted then various penal provisions would be struck down. The court held that such arguments goes to the policy of the law and not to the constitutionality unless any provision of constitution is infringed. Placing reliance on Yusuf Abdul Aziz, the court held that the provision does not offend Articles 14 and 15 and opined that the stability of marriages is not an ideal to be scorned. The court dismissed the petition.

V. Revathi v. Union of India and others

Placing heavy reliance on Sowmithri Vishnu , the court stated that the community punishes the outsider who invades the matrimonial home violating the sanctity of matrimonial home by developing illicit relationship with one of the spouses. The court also held that the law has not meted even hand justice as law the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband. Thus, the court held that the concerned provision is vulnerable to any kind of discrimination. And the court considered the section 497 and 192(2) as a legislative packet

W. Kalyani v. State Thro’ Inspector of Police and another

In this case also issue of constitutionality did not arise. However, the court noted that the Section 497 is under criticism for displaying strong gender bias as the married woman is considered as the property of husband. Another ground for criticism is the man is only prosecuted and punished for the offence.

Submission on the behalf of Petitioner

Three petitions submitted in this case: by Adv. Meenakshi Arora (on the behalf of Partners for Law and Development), Adv. Kaleeswaram (on the behalf of Joseph Shine and Adv. Jayan Kothari (as intervenor representing Vimochana Trust).

• Criminalization of any person for adultery is based on classification made on the basis of sex and this classification bears no rational nexus which the object sought to be achieved. Thus, it is discriminatory in nature.

• The reliance was placed on W. Kalyani v. State and the Petitioners contended that the provision violates Article 14 which requires equal treatment before law and discriminates on marital status. The provision is also hit by Article 15 as discrimination is based on sex.

• This is ancient concept where wife is treated as property of her husband and the deemed victim who can easily fall prey of seduction by another man. The protection extended to her under the provision highlights the fact that the society have this perceived notion that woman lacks sexual autonomy and she is gullible.

• The reliance was placed on Shafin Jahan v. Asokan K.M. & Ors. in which the court held that each individual has freedom to make choice for one’s partner.

• Reliance was also placed on K.S. Puttaswamy v. Union of India in which the court held that right to privacy comes under the right to life and personal liberty and the individual has right to make decisions related to vital matters of one’s life and decisions related to sexuality is one of the vital matters. Adultery is intrusion into privacy of a person as the as the relations between parties are made with mutual consent.

Submission on the behalf of Respondents

Additional Solicitor General Pinky Anand was on the behalf of Government.

• The respondent contended that marriage is a public affair in our country, adultery is a morally abhorrent act which impinge not only the individuals but also the family members. It has the tendency of breaking up the family. Section 497 is of vital importance as it protects the institution of marriage and promote social welfare.

• The act which outrages the morality of the society should be punished as a crime.

• It was argued by Union of India that the provision is a kind of affirmative action saved under Article 15(3).

The following issues were raised by the court:

• Whether the statutory provision suffers from manifest arbitrariness.

• Whether adultery that enters into the matrimonial realm should be treated as a criminal offence.

• Whether section 497 violates Article 15(1) by enforcing gender stereotypes.

The Constitution envisages a society based on principles of equality, dignity and freedom which should have overriding effect on prejudices and injustices. This cannot be denied that legal reform has played significant role in emancipation and changing the societal status of women.

Before deciding the constitutional validity of section 497 the court looked at the ingredients which were required to establish:

1. Sexual intercourse should have taken place between a married woman and a man who is not her husband.

2. The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man.

3. Such sexual intercourse must take place with her consent, i.e., it must not amount to rape.

4. Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

In all ancient religion and civilizations punishment for adultery was there. However, in many places both adulterer as well as the adulteress were punished and stringent punishments such as capital punished was also awarded. As Christianity spread in England, adultery became morally wrong and therefore, a sin, as well as a wrong against the husband. In Ancient Greco Roman societies, the act became violation of husband’s exclusive sexual access to his wife for which acts of revenge were allowed.

Chastity of women was regarded as her prime virtue in Indo-Brahmanic traditions and it was closely guarded in order to ensure purity of male bloodline. The first draft of the I.P.C. released by the Law Commission of India in 1837 did not include “adultery” as an offence and Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence.

The Law Commissioners considered that by not treating adultery as a criminal offence, it may give sanction to immorality. They also contended that condition of women of this country is much worse than the women of European countries. Thus, they should not be punished for the offence and Colonel Sleeman observed that non-inclusion of adultery as an offence would give impunity to the seducers and the adulterous wives will face wrath of their husbands. Thus, after many debates and recommendations adultery was included under the Penal Code.

Whether the statutory provision suffers from manifest arbitrariness

The postulate of equality is that human beings are created equal. Equality is one of the basic structures of the Constitution. Rule of law is positive aspect of Article 14 and absence of arbitrary power is essential for rule of law upon which our whole constitutional system is based. Sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful. The test of manifest arbitrariness which means invalidation of the legislation under Article 14.

In order to define this the court place reliance on State of Mysore v. S.R. Jayaram , Indira Nehru Gandhi v. Raj Narain , E.P. Royappa v. State of Tamil Nadu , Maneka Gandhi v. Union of India , A.L. Kalra v. Project and Equipment Corporation of India Ltd. , Ajay Hasia v. Khalid Mujib Sehravardi , K.R. Lakshmanan v. State of T. N , Mithu v. State of Punjab and Sunil Batra v. Delhi Administration . It means any act done by legislature capriciously, irrationally and/or without adequate determining principle or any act which is excessive and disproportionate.

After this the court proceeded to test the provision on the principles of gender justice, equality and dignity. Tracing the history of adultery reveals that the law was for the benefit of husband in order secure his ownership on his wife’s sexuality and to prevent woman for exercising her sexual agency. On bare reading of the provision it is demonstrable that women treated as subordinate to men when there is connives or consent of the husband no offence is committed. The wife is treated as chattel of her husband sans dignity and autonomy. Even the provision overlooks the illicit relation between a married man and an unmarried woman or widow.

Adultery is the highest invasion of property. Thus, neither the women can be prosecuted for adultery nor she can be aggrieved by it as they are chattels of their husband.

Dignity of an individual is the core principle of the Part III of the Constitution. Dignity is the quintessential quality for development of the personality and a human frame always desires to live in the mansion of dignity. The denial of right to live with dignity is denial of equality. Whenever there is a conflict between arbitrary action of the authority and human dignity, liberty and equality the latter must prevail and it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution.

Whether adultery that enters into the matrimonial realm should be treated as a criminal offence

Lord Keith in R v. R held that: “Marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.

The provision deals with one the social institutions (institution of marriage). Institution set of rules and regulations. It means all the rules and regulations which focus on maintaining social interaction and behavior pattern. It also involves discipline and curbing human emotions and behavior.

There are various acts which committed under the matrimonial sanctity are treated as criminal offences. Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, the protection conceived of under Section 125 of the Code of Criminal Procedure as these acts are deleterious to human dignity. However, the object and purpose of these provisions and legislations are different from adultery. The impugned provision invades the sexual autonomy of the person. It infringes two facets of Article 21:

i. The dignity of an individual.

ii. The privacy of an individual.

When the parties to a marriage lose their moral commitment of the relationship, it causes dent to the relationship and it should be upon the parties how they deal with the situation. Penal provision neither can save the matrimonial home nor can establish commitment. Adultery is not always the cause for breaking the family or matrimonial relations it can also be the effect or the result. Matrimonial ties does not mean surrendering of the autonomy of one spouse to another.

Privacy encompasses all spheres of private intimacy and autonomy. It also protests the way any individual expresses his or her sexuality and exercise the sexual autonomy. Thus, every individual has right to choose his/her sexual partner which is protected by individual liberty. Decisional privacy reflected by an ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations.

Whether section 497 violates Article 15(1) by enforcing gender stereotypes.

In society there are two set of morality for umpiring sexual behavior. For women society has ascribed impossible virtues and confined her to a narrow sphere of behavior by an expectation of conformity. Society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home. Use of privacy as a veneer for patriarchal domination and abuse of women this has been held in K.S Puttaswamy case. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The impugned provision use coercion in order to enforce the infidelity through the letters of the law.

The woman is reduced to the position of a victim and no heed is paid to her needs this is mock to her autonomy and she is bereft of agency to determine her course of life. The impugned provision has made ostensible effort to protect the institution of marriage as the position of wife is inferior to her husband. The evolved jurisprudence of rights grant primacy to the right to autonomy, dignity and individual choice.

Decision of the court

• Section 497 is manifestly arbitrary as it criminalizes the consensual sexual activity and the provision denies substantive equality to women by subordinating them. Thus, the section violates Article 14 of the Constitution.

• Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution.

• The impugned provision denies dignity, liberty, privacy and sexual autonomy and violates Article 21 of the Constitution.

• The decisions in Sowmithri Vishnu and Revathi were overruled and any other judgment following precedents also stands overruled.