On 27th Sept. 2018, Supreme Court of India in case
Joseph Shine Vs. Union of India WP Criminal 194/2017 held that adultery u/s 497
Indian Penal Code is not an offense. Adultery could be a ground for divorce. Section
497 reads: "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." Section 497 used to be
read with CrPC Section 198(2) in the matters of prosecution for offences
against marriage. The combined reading of the adultery laws allowed the
aggrieved husband of the married woman in adulterous relationship to file a
complaint. But same right was not available to an aggrieved wife if her husband
was found to be in an adulterous relationship. The rationale of the provision
suffers from the absence of logicality of approach and, therefore, we have no
hesitation in saying that it suffers from the vice of Article 14 of the
Constitution being manifestly arbitrary. It is
discernible that the Court, with the passage of time, has recognized the
conceptual equality of woman and the essential dignity which a woman is
entitled to have. There can be no curtailment of the same. But, Section 497 IPC
effectively does the same by creating invidious distinctions based on gender
stereotypes which creates a dent in the individual dignity of women. Besides,
the emphasis on the element of connivance or consent of the husband tantamounts
to subordination of women. Therefore, we have no hesitation in holding that the
same offends Article 21 of the Constitution
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.
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. In
case of adultery, the law expects the parties to remain loyal and maintain
fidelity throughout and also makes the adulterer the culprit. This expectation
by law is a command which gets into the core of privacy. That apart, it is a discriminatory
command and also a socio-moral one. Two individuals may part on the said ground
but to attach criminality to the same is inapposite. The jurisprudence in
England, which to a large extent, is adopted by this country has never regarded
adultery as a crime except for a period of ten years in the reign of
Puritanical Oliver Cromwell. As we see the international perspective, most of
the countries have abolished adultery as a crime. We may also usefully note
here that adultery as a crime is no more prevalent in People‘s Republic of
China, Japan, Australia, Brazil and many western European countries 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.
