Judges: Dipak Misra, C.J.I., A.M. Khanwilkar, Indu Malhotra, Rohinton Fali Nariman and Dr. D.Y. Chandrachud, JJ.

Facts

The instant writ petition was filed Under Article 32 of the Constitution of India challenging the validity of Section 497 Indian Penal Code, 1960 (IPC).

A three-Judge Bench took note of the authorities in Yusuf Abdul Aziz v. State of Bombay MANU/SC/0124/1954, Sowmithri Vishnu v. Union of India and Anr. MANU/SC/0199/1985, V. Revathi v. Union of India and Ors. MANU/SC/0562/1988, and W. Kalyani v. State through Inspector of Police and Anr. MANU/SC/1455/2011.

Thereafter, appreciating the submissions advanced by the counsel for the petitioner, the Court felt the necessity to have a re-look at the constitutionality of the aforesaid provision.

That is how the matter was placed before the bench of five judges, who pronounced the present judgment.

Issues

(i) Whether Section 497 of IPC and Section 198 of the Code of Criminal Procedure, 1973 (CrPC) is constitutionally valid?

(ii) Whether adultery should be treated as a criminal offence?

Laws:

IPC - Section 497 - Deals with the offence of adultery.

A man who engages in sexual activity with a married lady without getting her husband's permission is committing the offence of adultery, according to Section 497 of the IPC. A man who commits such a crime faces up to five years in jail as well as a possible fine.

CrPC - Section 198 - Provides for prosecution for offences against marriage.

Contentions of Petitioner

(i) In cases of adultery, the law provided for a man's punishment, but there was no provision for action against a woman.

(ii) Due to the absence of a legal framework to that effect, a woman was not allowed to accuse her husband of adultery under Section 497 of the IPC.

(iii) Under this rule, women were regarded like objects since the conduct might be considered 'illegal' with or without the husband's agreement.

(iv) Due to its paternalistic and arbitrary nature, impugned provision violates the basic rights guaranteed by Articles 14, 15, and 21 of the Constitution.

(v) Since engaging in sexual activity was a voluntary act for both persons, neither should be absolved of responsibility.

(vi) Since choosing an intimate partner directly lay under the purview of sexual autonomy, Section 497 of the IPC violated the fundamental right to privacy under Article 21. Every person has the unrestricted freedom to engage in sexual activity outside of a marriage, regardless of gender or marital status.

Contentions of Respondent

(i) The provision making adultery illegal was necessary to preserve the institution of marriage since allowing people to engage in sexual encounters outside of marriage would surely lead to its destruction.

(ii) An act that violated society's morals and caused harm to its members should be prosecuted as a crime.

(iii) According to Article 21 of the Constitution, the right to privacy and personal freedom was not unalienable but was subject to reasonable limitations when a valid public interest was involved.

(iv) Section 497 of IPC was legitimate as an instance of affirmative action that benefits women.

Analysis

Constitutional validity of Section 497 of IPC and Section 198 of the CrPC

(i) Section 497 of IPC rests on and perpetuates stereotypes about women and sexual fidelity.

In curtailing the sexual agency of women, it exacts sexual fidelity from women as the norm. It perpetuates the notion that a woman is passive and incapable of exercising sexual freedom. In doing so, it offers her 'protection' from prosecution.

(ii) Section 497 of IPC denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage.

(iii) The provision is grounded in and has a deep social effect on how society perceives the sexual agency of women. In reinforcing the patriarchal structure which demands her controlled sexuality, Section 497 of IPC purports to serve as a provision envisaged for the protection of the sanctity of marriage.

(iv) In the context of a constitutional vision characterized by the struggle to break through the shackles of gender stereotypes and guarantee an equal citizenship, Section 497 of IPC entrenches stereotypes and existing structures of discrimination and has no place in a constitutional order.

(v) Article 15(3) of the Constitution encapsulates the notion of 'protective discrimination'. The constitutional guarantee in Article 15(3) cannot be employed in a manner that entrenches paternalistic notions of 'protection'. This latter view of protection only serves to place women in a cage. Article 15(3) does not exist in isolation.

(vi) Articles 14 to 18 of the Constitution, being constituents of a single code on equality, supplement each other and incorporate a non-discrimination principle. Neither Article 15, nor Article 15(3) of the Constitution allows discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3).

In exempting women from criminal prosecution, Section 497 of IPC implies that a woman has no sexual agency and that she was 'seduced' into a sexual relationship. Given the presumed lack of sexual agency, criminal exemption is then granted to the woman in order to 'protect' her.

(vii) The 'protection' afforded to women under Section 497 of IPC highlights the lack of sexual agency that the Section imputes to a woman. Article 15(3) of the Constitution when read with the other Articles in Part III, serves as a powerful remedy to remedy the discrimination and prejudice faced by women for centuries. Article 15(3) as an enabling provision is intended to bring out substantive equality in the fullest sense.

Dignity and autonomy are crucial to substantive equality. Hence, Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women.

In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21 of the Constitution.

(viii) Section 497 of IPC deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality.

Equality is subverted by lending the sanctions of the penal law to a gender biased approach to the relationship of a man and a woman. The statute confounds paternalism as an instrument for protecting marital stability. It defines the sanctity of marriage in terms of a hierarchical ordering which is skewed against the woman. The law gives unequal voices to partners in a relationship.

(ix) Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 of IPC does not pass constitutional muster.

(x) Section 198 of CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence. Consequently, Section 198 has also to be held constitutionally infirm.

Whether adultery should be treated as a criminal offence?

(i) Adultery is different from an offence committed under Section 498-A of IPC or any violation of the Protection of Women from Domestic Violence Act, 2005. For that matter, adultery is different from the protection conceived of under Section 125 of CrPC or Sections 306 or 304B or 494 of IPC.

These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage.

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.

(ii) 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. In either situation, the whole scenario is extremely private.

(iii) It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences.

(iv) Adultery does not fit into the concept of a crime. 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.

(v) 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.

By no stretch of imagination, one can say, that Section 498-A of IPC or any other provision, as mentioned hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide. The said activities deserve to be punished and the law has rightly provided so.

Conclusion

(i) Section 497 of IPC lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary.

(ii) Section 497 of IPC is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society.

(iii) Section 497 of IPC violates Article 14 of the Constitution.

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

(v) Section 497 of IPC is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution.

(vi) Section 497 of IPC is unconstitutional.

(vii) Section 198 of CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery is also unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path.

(viii) Decisions in Sowmithri Vishnu v. Union of India and Anr. MANU/SC/0199/1985 and V. Revathi vs. Union of India (UOI) and Ors. MANU/SC/0562/1988 were overruled and any other judgment following precedents were also overruled.

Important Precedents

Yusuf Abdul Aziz v. State of Bombay MANU/SC/0124/1954

Sowmithri Vishnu v. Union of India and Anr. MANU/SC/0199/1985 V. Revathi v. Union of India and Ors. MANU/SC/0562/1988

W. Kalyani v. State through Inspector of Police and Anr. MANU/SC/1455/2011

Arun Kumar Agrawal and Anr. v. National Insurance Co. Limited and Ors. MANU/SC/0507/2010

State of Madhya Pradesh v. Madanlal MANU/SC/0689/2015 

Pawan Kumar v. State of Himachal Pradesh MANU/SC/0535/2017