“Husband is not the master of his wife”- Find out why the court scrapped down the 158-year-old adultery law?

By | October 3, 2018
Adultery law

As it is rightly quoted by CJI Deepak Mishra that “Husband is not the master of the wife”. There should be equality in their relations and this section was merely reducing the status of the husband and wife as master and servant. Find out why the court scrapped down the 158-year-old adultery law?

Introduction

The real grace of Indian constitution is Part III i.e. Fundamental rights. The judiciary has always fostered and nurtured this part of the constitution and will continue to do so.  This judicial consciousness further adds to the beauty of the constitution. As a result, women and her fundamental rights are always on the top of the priority list of the Judiciary.

Individual liberty and dignity have a legal sanctity in a civilized society and the society earns becomes more civilized and orderly when society respects the individual dignity of the women. Any country where the constitution is supreme and the system fails to treat women with dignity, fails to recognize her individuality is bound to face the wrath of the constitution.

Any law or provisions, for instance, take the case of adultery only that might have got the sanction of the court and public opinion it might have to face the changing phase of the society and the view of the courts that no longer gives validity to such laws and provisions.

As it is rightly quoted by CJI Deepak Mishra that “Husband is not the master of the wife”. There should be equality in their relations and this section was merely reducing the status of the husband and wife as master and servant. The law should strive to remove the inequalities among the two sexes. Any law violating the equality parameters should be struck down.

As rightly observed by John Stuart Mill,” ―The legal subordination of one sex to another –is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.”

When the question before the court was whether to follow the precedents or not, the court decided to grow out of the same because the constitutional court cannot be rooted in a precedent it needs to evolve so that it is at par with the society and the public opinion. Cause it is simple it always happens that what might be acceptable at one point of time it may not be acceptable at another point in time. For example, earlier women were not allowed to enter some temples but now the view of people has changed they are now advocating for the right of women of the freedom of movement.

Prima facie interpretation of Section 497 of IPC

Section 497 – Adultery.—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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Prima facie look at the section tells us that it grants relief to the women who is considered a victim. But then the court observed that it had many unnoticed aspects as well.

  1. When an offence is committed by both of them then how can one be liable and other be absolved from it? Because criminal law works on gender neutrality but in this provision, it was absolutely absent.
  2. Also, it is not justified that the right of women can go to the extent of treating them as the victim, in all circumstances, to the peril of the husband.
  3. Also, the section clearly states that the offence of adultery is no more an offence once there is connivance of the husband. This dissolves the individuality of women once the husband’s permission is granted thus bringing the status of women subordinate to that of men.

As the court has rightly observed this provision appears to be archaic. And a time has come where women should no longer be treated as subordinate to men because women have achieved great success and are equal to men in all the fields.

Why were previous judgments of the court in favour of this Adultery Section?

1.Yusuf Abdul Aziz v. State of Bombay,  AIR 1954 SC 321 

The facts and issue raised were very different from the one which was raised in the current case. The issue raised was whether section 497 violated Article 14 and article 15? The Court treated the provision to be a special provision made for women and, therefore, saved by clause (3) of Article 15. Hence, the Court proceeded on the foundation of affirmative action.

2.In Sowmithri Vishnu v. Union of India and Another,  AIR 1985 SC 1618

A petition preferred under Article 32 of the Constitution challenged the validity of Section 497 IPC. It was contended that Section 497 confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery that Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and that Section 497 does not take in cases where the husband has sexual relations with an unmarried woman with the result that husbands have a free licence under the law to have extramarital relationships with unmarried women. That apart, the submission was advanced that Section 497 is a flagrant instance of gender discrimination ‘legislative despotism ‘and male chauvinism’. The court observed that at first instance, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ―romantic paternalism which stems from the assumption that women, like chattels, are the property of men.

3.In V. Revathi v. Union of India and others, (1988)2 SCC 72, the Court analysed the design of the provision and ruled: –

“Thus, the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus, both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband.”

4.In W. Kalyani v. State Thro’ Inspector of Police and Another (2012) 1 SCC 358, the Court held: – “The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law, as it stands, it is evident from a plain reading of the section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.”

The recent judgment has however decriminalized adultery. The judgment of CJI Misra held that Section of adultery violated a woman’s right to dignity, resulting in infringement of Article 21 of the Constitution of India. The judgment borrows from the findings of Justice Nariman’s judgment in Triple Talaq case.

The Court, however, clarified that adultery will still be a ground for divorce. It was also stated that if an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be prosecuted for abetment of suicide under Section 306 of the IPC.

The court also struck down Section 198(2) of the Code of Criminal Procedure, as a consequence of striking down of Section 497 IPC.

Justice Nariman observed that “Ancient notion of man being the perpetrator and woman being a victim of adultery no longer holds good”, observed Justice Nariman. It treats women as chattel and has chauvinistic undertones….

Justice Chandrachud observed that “Autonomy is intrinsic in dignified human existence.497 denuded the woman from making choices.  The law in adultery is a codified rule of patriarchy. Society attributes impossible attributes to a woman, Raising woman to a pedestal is one part of such at.”

In his conclusion, he observed that “Respect for sexual autonomy must be emphasized. Marriage does not preserve ceiling of autonomy 497 perpetrates subordinate nature of woman in a marriage”, these were his concluding remarks….

Justice Indu Malhotra also pointed out the “absurdity” of the section in as much as it legalises the act of Adultery if committed by with the consent or connivance of the husband of the woman who is party to the act- “Is the wife of the consenting husband being treated as chattel? This amounts to gender bias”

Conclusion

The court observed that women have been treated equally in our Smritis.

“Yatra tastu na pujyante sarvastatraphalah kriyah” which means

All the actions become unproductive in a place, where they are not treated with proper respect and dignity.

“Bhartr bhratr pitrijnati

swasruswasuradevaraih

Bandhubhisca striyah pujyah

Bhusnachhadanasnaih”

It means that the women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as a token of honour.

I would conclude by stating what Lord Denning has quoted,” ―A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom — to develop her personality to the full as a man. When she marries, she does not become the husband ‘s servant but his equal partner. If his work is more important in life of the community, her‘s is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.”

By – Deeksha Kathayat

Dr. D.Y. Patil College of law

Sources

  1. Supreme court judgments on adultery
  2. Live law articles
  3. Wikipedia
  4. Lord denning’s articles

CASES REFERRED

 1.Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321

2.In Sowmithri Vishnu v. Union of India and Another, AIR 1985 SC 1618

3.V. Revathi v. Union of India and others, (1988)2 SCC 72

4.W. Kalyani v. State Thro’ Inspector of Police and Another, (2012) 1 SCC 358


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Author: Deeksha Kathayat

I am currently pursuing BLS LLB from Dr. D.Y Patil College of Law. I am very much into debating and mooting or any competitions where I can express my views on various subjects to people. I believe that if you want to change the world, pick up your pen and write and act as if what you do makes a difference BECAUSE it really does. I am an aspiring bureaucrat. Three words to describe me is UNSTOPPABLE, UNCONSTRAINED and ZEALOUS.

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