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TMI Blog2018 (9) TMI 1792X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497. - Dipak Misra, Indu Malhotra, Dr Dhananjaya Y Chandrachud, JJ. JUDGMENT Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.) The beauty of the Indian Constitution is that it includes 'I' 'you' and 'we'. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accord with the growing legal interpretation and the analysis has to be different, more so, where the emerging concept recognises a particular right to be planted in the compartment of a fundamental right, such as Articles 14 and 21 of the Constitution. In such a backdrop, when the constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the provision in the context of developed and progressive interpretation. A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice. That is how the matter has been placed before us. 6. At this stage, one aspect needs to be noted. At the time of initial hearing before the three-Judge Bench, the decision in Yusuf Abdul Aziz (supra) was cited and the cited Law Report reflected that the judgment was delivered by four learned Judges and later on, it was noticed, as is reflectible from the Supreme Court Reports, that the decision was rendered by a Constitution Bench comprising of five Judges of this Court. 7. The said factual discovery will not detain us any further. In Yusuf Abdul Aziz (supra), the Court was dealing with the controversy that had travelled to this Court while dealing with a different fact situation. In the said case, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitution of India. In the said case, the appellant was being prosecuted for adultery under Section 497 IPC. As soon as the complaint w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Maharashtra and another(2005) 2 SCC 673) while making a reference to a larger Bench. The said order reads thus:- 12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms: (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y extend to two years, or with fine, or with both. 10. Section 198 of CrPC provides for prosecution for offences against marriage. Section 198 is reproduced below:- 198. Prosecution for offences against marriage.-(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that- (a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf; (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf; (c) where the person aggrieved by an offence punisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence. 11. On a perusal of the aforesaid provision, it is clear that the husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The rest of the proviso carves out an exception as to who is entitled to file a complaint when the husband is absent. It may be noted that the offence is non-cognizable. 12. The three-Judge Bench, while referring the matter, had briefly dwelled upon the impact of the provision. To appreciate the constitutional validity, first, we shall deal with the earlier pronouncements and the principles enunciated therein and how we can have a different perspective of such provisions. We have already referred to what has been stated in Yusuf Abdul Aziz (supra). 13. In Sowmithri Vishnu (supra), a petition preferred under Article 32 of the Constitution challenged the validity of Section 497 IPC. We do not intend to advert to the factual matrix. It was contended before the three-Judge Bench that Section 497 confers upon the husband the right to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society has undergone . Proceeding further, the three-Judge Bench held that the offence of adultery as defined in that Section can only be committed by a man, not by a woman. Indeed, the Section expressly provides that the wife shall not be punishable even as an abettor. No grievance can then be made that the Section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, the same point is reverted to; who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute. 15. The Court further held:- ..Since Section 497 does not contain a provision that she must be impleaded as a necessary party to the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sowmithri Vishnu (supra) and proceeded to state that the community punishes the 'outsider' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man' alone can be punished and not the erring woman. It further went on to say that it does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished, a rider has been added that if the outsider is a woman, she is not punished. There is, thus, reverse discrimination in favour of the woman rather than against her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus, there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 346 Bench decisions cannot possibly be said to be good law. 61. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India. 62. Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the discrimination aspect of Article 14, and evolved a rule by which subjects could be classified. If 347 the classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing seniority rules, which applied to the Income Tax Department, being held to be violative of Article 14 of the Constitution of India. 19. Thereafter, our learned brother referred to the authorities in State of Mysore v. S.R. Jayaram(1968) 1 SCR 349), Indira Nehru Gandhi v. Raj Narain(1975) Supp SCC 1), E.P. Royappa v. State of Tamil Nadu(1974) 4 SCC 3), Maneka Gandhi v. Union of India(1978) 1 SCC 248), A.L. Kalra v. Project and Equipment Corporation of India Ltd. (1984) 3 SCC 316), Ajay Hasia v. Khalid Mujib Sehravardi(1981) 1 SCC 722), K.R. Lakshmanan v. State of T.N. (1996) 2 SCC 226) and two other Constitution Bench judgments in Mithu v. State of Punjab(1983) 2 SCC 277) and Sunil Batra v. Delhi Administration(1978) 4 SCC 494) and, eventually, came to hold thus:- It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be arbitrary . And again:- .....The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1), the Court held:- Dignity of a woman is a part of her nonperishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. 28. In Pawan Kumar v. State of Himachal Pradesh(2017) 7 SCC 780), the Court, dealing with the concept of equality and dignity of a woman, observed:- 47 in a civilized society eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tsider. That is the truth in essentiality. 32. In Voluntary Health Association of Punjab v. Union of India(2013) 4 SCC 1), one of us (Dipak Misra, J.), in his concurring opinion, stated that women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership. The issue related to female foeticide and it was stated thus:- 21. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it. Henrik Ibsen emphasised on the individualism of woman. John Milton treated her to be the best of all God's work. In this context, it will be appropriate to quote a few lines from Democracy in America by Alexis de Tocqueville: If I were asked to what the singular prosperity and growing strength of that people [Americans] ought mainly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC p. 148, para 28) 24. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility: Dowry is an intractable disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death. 25. Long back, Charles Fourier had stated: The extension of women's rights is the basic principle of all social progress. 26. Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court in Nikku Ram case4 had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows: Yatra tastu na pujyante sarvastatraphalah kriyah A free translation of the aforesaid is reproduced below: All the actions become unproductive in a place, where they are not treated with proper respect and dignity. 27. Another wise man of the past had his own way of putting it: Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaih A free translation of the aforesaid is as follows: The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d hopes that the world will come around him. 35. In the said case, a contention was advanced that the existence of a woman is entirely dependent on the male view of the reputation of the family, the community and the milieu. The Court, in that context, observed:- 5. The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self-sacrificing, persons moving in physical frame having no individual autonomy, desire and identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive honour. 36. We have referred to the aforesaid as we are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband's monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance. 37. Having stated about the dignity of a woman, in the context of autonomy, desire, choice and identity, it is obligatory to refer to the recent larger Bench decision in K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1) which, while laying down that privacy is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of selfdetermination. xxx xxx xxx 525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual.359 The dignity of the individual encompasses the right of the individual to develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling, and, as stated earlier, it deserves respect even when the person is dead and described as a body ..... And again:- The concept and value of dignity requires further elaboration since we are treating it as an inextricable facet of right to life that respects all human rights that a person enjoys. Life is basically self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena. Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the message, Death plucks my ear and says, Live- I am coming . That is the significance of living. But when a patient really does not know if he/she is living till death visits him/her and there is constant suffering without any hope of living, should one be allowed to wait? Should she/he be cursed to die as life gradually ebbs out from her/his being? Should she/he live because of innovative medical technology or, for that matter, should he/she continue to live with the support system as people around ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed choice'. Respect for dignity thus conceived is empowering overall and not just because it, even if importantly, sets constraints state, law, and regulations. 41. From the aforesaid analysis, 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. 42. Another aspect needs to be addressed. The question we intend to pose is whether adultery should be treated as a criminal offence. Even assuming that the new definition of adultery encapsules within its scope sexual intercourse with an unmarried woman or a widow, adultery is basically associated with the institution of marriage. There is no denial of the fact that marriage is treated as a social institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics. An act may be made criminal by Parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question. 44. In Kenny‟s Outlines of Criminal Law, 19th Edn., 1966 by J.W. Cecil Turner, it has been stated that:- There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore although it is true to say of crime that is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification. And again:- So long as crimes continue (as would seem inevitable) to be created by government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... growth and decay, and of progress and retrogression recurs endlessly in the history of man and the history of civilization. T.S. Eliot in the First Chorus from The Rock said: O perpetual revolution of configured stars, O perpetual recurrence of determined seasons, O world of spring and autumn, birth and dying; The endless cycle of idea and action, Endless invention, endless experiment. 26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said: When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool. The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. 48. Reproducing the same, the Court in Common Cause (A Registered Society) (supra), has observed :- 160. The purpose of saying so is only to highlight that the law must take co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter to be left as a ground for divorce. 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. Let it be clearly stated, by no stretch of imagination, one can say, that Section 498-A 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. 50. In this regard, we may also note how the extramarital relationship cannot be treated as an act for commission of an offence under Section 306 IPC. In Pinakin Mahipatray Rawal v. State of Gujarat(2013) 10 SCC 48), the Court has held :- 27. Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een granted separate exclusive space in the context of Sections 306 and 498-A IPC. 53. 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. 54. 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 diversity of culture in those countries can be judicially taken note of. Non-criminalisation of adultery, apart from what we have stated hereinabove, can be proved from certain other facets. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reforma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r judgment following precedents also stands overruled. 58. Consequently, the writ petition is allowed to the extent indicated hereinbefore. JUDGMENT R.F. Nariman, J. (Concurring) 1. What is before us in this writ petition is the constitutional validity of an archaic provision of the Indian Penal Code ( IPC ), namely, Section 497, which makes adultery a crime. Section 497 appears in Chapter XX of the IPC, which deals with offences relating to marriage. Section 497 reads as follows:- 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. The offence of bigamy, which is contained in Section 494 in the same Chapter, is punishable with a longer jail term which may extend to 7 years, but in this case, the husband or the wife, as the case may be, is liable to be prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress. Leviticus 20:10 (King James Version). 3. In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Paul's letter to the Corinthians. 1 Corinthians 6:9-10 (King James Version). Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent. Matthew 5:27-28 (King James Version). However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words, let him who has not sinned, cast the first stone. John, 8:7 (English Standard Version). 4. In this country as well, in the Manusmriti, Chapters 4.134 6 and 8.352 Id., 315. prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment. The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman. 8 However, in the Gautama Dharmasutra, if a man commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliament. Interestingly enough, it was only after King Charles I was beheaded in 1649, that adultery became a capital offence in Cromwell's Puritanical England in the year 1650, which was nullified as soon as King Charles II came back in what was known as the 'restoration of the monarchy'. It will be seen therefore, that in England, except for an eleven-year period when England was ruled by the Puritans, adultery was never considered to be a criminal offence. Adultery was only a tort for which damages were payable to the husband, given his proprietary interest in his wife. 12 This tort is adverted to by a 1904 judgment of the Supreme Court of the United States in Charles A. Tinker v. Frederick L. Colwell, 193 US 473 (1904), as follows: We think the authorities show the husband had certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act, because the wife is in law incapable of giving any consent to affect the husband's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continued right till 1923, when the Matrimonial Causes Act, 1923 made adultery a ground for divorce available to both spouses instead of only the husband. The right of a husband to claim damages for adultery was abolished very recently by the Law Reforms (Miscellaneous Provisions) Act, 1970. Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970. 8. In the United States, however, Puritans who went to make a living in the American colonies, carried with them Cromwell's criminal law, thereby making adultery a capital offence. Strangely enough, this still continues in some of the States in the United States. The American Law Institute, however, has dropped the crime of adultery from its Model Penal Code as adultery statutes are in general vague, archaic, and sexist. None of the old reasons in support of such statutes, namely, the controlling of disease, the preventing of illegitimacy, and preserving the traditional family continue to exist as of today. It was also found that criminal adultery statutes were rarely enforced in the United States and were, therefore, referred to as dead letter statutes . This, plus the potential abuses from such statutes continuing on the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h circumstances we think it best to treat adultery merely as a civil injury. xxx xxx xxx These arguments have not satisfied us that adultery ought to be made punishable by law. We cannot admit that a Penal code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross in gratitude and insolence, deserves more severe reprehension than the man who aims a blow in a passion, or breaks a window in a frolic. Yet we have punishments for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice. Yet we punish the latter for theft, and we do not punish the former for hard-heartedness. xxx xxx xxx There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terring the Natives from prosecuting adulterers in our courts, although the Regulations allow of a conviction upon strong presumption arising from circumstantial evidence. This difficulty, if it has had the effect supposed, will be removed, should the Code be adopted. Colonel Sleeman's representation of the actual consequences of the present system, which, while it recognizes the offence, renders it, in the opinion of the Natives, almost impossible to bring an offender to justice, it will be observed, coincides with and confirms practically Mr. Livingstone's view of the result to be expected when the law refuses to punish this offence. The injured party will do it for himself; great crimes, assassinations, poisonings, will be the consequence. The law here does not refuse, but it fails to punish the offence, says Colonel Sleeman, and poisonings are the consequence. 354. Colonel Sleeman thinks that the Commissioners have wrongly assumed that it is the lenity of the existing law that it is complained of by the Natives, and believes that they would be satisfied with a less punishment for the offence than the present law allows; viz. imprisonment for seven years, if it were cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 199 stated: 199. Prosecution for adultery or enticing a married woman.- No Court shall take cognizance of an offence under section 497 or section 498 of the Indian Penal Code (XLV of 1860), except upon a complaint made by the husband of the woman, or, in his absence, by some person who had care of such woman on his behalf at the time when such offence was committed. 12. Even when this Code was replaced by the Code of Criminal Procedure ( CrPC ), 1973, Section 198 of the CrPC, 1973 continued the same provision with a proviso that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf. The said Section reads as follows: 198. Prosecution for offences against marriage.- (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that- (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime being be granted to the husband. (5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence. (6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence. At this stage, it is important to advert to some of the judgments of the High Courts and our Court. In Yusuf Abdul Aziz v. State, 1952 ILR Bom 449, a Division Bench of the Bombay High Court, consisting of M.C. Chagla, C.J. and P.B. Gajendragadkar, J. held that Section 497 of the IPC did not contravene Articles 14 and 15 of the Constitution. However, in an instructive passage, the learned Chief Justice stated: Mr. Peerbhoy is right when he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n force are concerned Art. 15(1) applies, and if the laws in force are inconsistent with Art. 15(1), those laws must be held to be void. Turning to Art. 13(1), it provides: All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Therefore, before a law in force can be declared to be void it must be found to be inconsistent with one of the provisions of Part III which deals with Fundamental Rights, and the fundamental right which is secured to the citizen under Art. 15 is not the unlimited right under Art. 15(1) but the right under Art. 15(1) qualified by Art. 15(3). It is impossible to argue that the Constitution did not permit laws to have special provision for women if the laws were passed before the Constitution came into force, but permitted the Legislature to pass laws in favour of women after the Constitution was enacted. If a law discriminating in favour of women is opposed to the fundamental rights of citizens, there is no reason why such law should continue to remain on the statute book. The whole scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the State. The vital difference in language between Articles 15(3) and 16(4) on the one hand, and Article 19(2)-(6) on the other, must thus be given effect. 16. Coming back to Yusuf Abdul Aziz (supra), the difference in language between Article 15(3) and Article 19(2)-(6) was not noticed. The limited ratio of this judgment merely refers to the last sentence in Section 497 which it upholds. Its ratio does not extend to upholding the entirety of the provision or referring to any of the arguments made before us for striking down the provision as a whole. 17. We then come to Sowmithri Vishnu v. Union of India and Anr., (1985) Supp SCC 137, ( Sowmithri Vishnu ). In this case, an Article 32 petition challenged the constitutional validity of Section 497 of the Penal Code on three grounds which are set out in paragraph 6 of the judgment. Significantly, the learned counsel in that case argued that Section 497 is a flagrant instance of 'gender discrimination', 'legislative despotism', and 'male chauvinism'. This Court repelled these arguments stating that they had a strong emotive appeal but no valid legal basis to rest upon. The first argument, namely, an argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scorned. 18. In V. Revathi v. Union of India and Ors., (1988) 2 SCC 72, this Court, after referring to Sowmithri Vishnu (supra), repelled a similar challenge to Section 198 of the CrPC, 1973. After referring to Sowmithri Vishnu (supra), since Section 497, IPC and Section 198, CrPC go hand in hand and constitute a 'legislative packet' to deal with the offence of adultery committed by an outsider, the challenge to the said Section failed. 19. International trends worldwide also indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws. Thus, adultery continues to be a criminal offence in Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, United Arab Emirates, some states of the United States of America, Algeria, Democratic Republic of Congo, Egypt, Morocco, and some parts of Nigeria. On the other hand, a number of jurisdictions have done away with adultery as a crime. The People's Republic of China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sexual intercourse. (c) If deterrence is the main purpose, one would have thought that this could better be achieved by retaining the imposition of criminal sanctions or by the grant of an interdict in favour of the innocent spouse against both the guilty spouse and the third party to prevent future acts of adultery. But, as we know, the crime of adultery had become abrogated through disuse exactly 100 years ago while an interdict against adultery has never been granted by our courts (see, for example, Wassenaar v Jameson, supra at 352H 353H). Some of the reasons given in Wassenaar as to why an interdict would not be appropriate are quite enlightening and would apply equally to the appropriateness of a claim for damages. These include, firstly, that an interdict against the guilty spouse is not possible because he or she commits no delict. Secondly, that as against a third party - 'it interferes with, and restricts the rights and freedom that the third party ordinarily has of using and disposing of his body as he chooses; . . . it also affects the relationship of the third party with the claimant's spouse, who is and cannot be a party to the interdict, and therefore indire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the Hindu Code , so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for divorce in Hindu Law. Further, the real heart of this archaic law discloses itself when consent or connivance of the married woman's husband is obtained the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the licensor , namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has 'seduced' her, she being his victim. What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today's constitutional morality, in that the very object wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well. Section 198, 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. 26. We have, in our recent judgment in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1, ( Puttaswamy ), held: 108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the foca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnity which assures the dignity of the individual. [In 1834, Jacques-Charles DuPont de l'Eure associated the three terms liberty, equality and fraternity together in the Revue R publicaine, which he edited, as follows: Any man aspires to liberty, to equality, but he cannot achieve it without the assistance of other men, without fraternity. Many of our decisions recognise human dignity as being an essential part of the fundamental rights chapter. For example, see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at para 10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at para 37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at para 37.] The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the seducer and the woman being the victim permeate the judgment, which is no longer the case today. The moving times have not left the law behind as we have just seen, and so far as engaging the attention of law makers when reform of penal law is undertaken, we may only hasten to add that even when the CrPC was fully replaced in 1973, Section 198 continued to be on the statute book. Even as of today, Section 497 IPC continues to be on the statute book. When these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law, cessante ratione legis, cessat ipsa lex, apply to interdict such law, but when such law falls foul of constitutional guarantees, it is this Court's solemn duty not to wait for legislation but to strike down such law. As recently as in Shayara Bano (supra), it is only the minority view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to change legislatively by way of social reform. The majority view was the exact opposite, which is why Triple Talaq was found constitutionally infirm and struck down by the majority. Also, we are of the view that the statement in this judgment that stability o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses, the law operates to perpetuate an unequal world for women. Thus, depending on the manner in which it is used, law can act as an agent of social change as well as social stagnation. Scholar Patricia Williams, who has done considerable work on the critical race theory, is sanguine about the possibility of law engendering progressive social transformation: It is my deep belief that theoretical legal understanding and social transformation need not be oxymoronic 5 The Constitution, both in text and interpretation, has played a significant role in the evolution of law from being an instrument of oppression to becoming one of liberation. Used in a liberal perspective, the law can enhance democratic values. As an instrument which preserves the status quo on the other hand, the law preserves stereotypes and legitimises unequal relationships based on preexisting societal discrimination. Constantly evolving, law operates as an important site for discursive struggle , where ideals compete and new visions are shaped. 6 . In regarding law as a site of discursive struggle , it becomes imperative to examine the institutions and structures within which legal discourse operates: Ibid The idea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Abdul Aziz v State of Bombay (1954 SCR 930), arose from a case where the appellant was being prosecuted for adultery under Section 497. On a complaint being filed, he moved the High Court to determine the constitutional question about the validity of the provision, under Article 228. The High Court decided against the appellant (AIR 1951 Bom 470), but Chief Justice Chagla made an observation about the assumption underlying Section 497: Mr Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that the offence is only cognizable with the consent of the husband emphasises that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are past, when women were looked upon as property by their husbands. A narrow challenge was addressed before this Court. The judgment of Justice Vivian Bose records the nature of the challenge: 3. Under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor. The last sentence in Section 497 prohibits this. It runs- In such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e woman from exercising her sexual agency. Thus, Section 497 was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become evident when the provision is considered as a whole. 8 In the subsequent decision of the three judge Bench in Sowmithri Vishnu v Union of India(1985 Supp SCC 137), the court proceeded on the basis that the earlier decision in Yusuf Abdul Aziz had upheld Section 497 against a challenge based on Articles 14 and 15 of the Constitution. This is not a correct reading or interpretation of the judgment. 9 Sowmithri Vishnu did as a matter of fact consider the wider constitutional challenge on the ground that after the passage of thirty years, particularly in the light of the alleged social transformation in the behavioural pattern of women in matters of sex , it had become necessary that the matter be revisited. Sowmithri Vishnu arose in a situation where a petition for divorce by the appellant against her husband on the ground of desertion was dismissed with the finding that it was the appellant who had deserted her husband. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... logic of the court, to the effect that extending the ambit of a statutory definition is a matter which requires legislative change is unexceptionable. The power to fashion an amendment to the law lies with the legislature. But this only leads to the conclusion that the court cannot extend the legislative prescription by making the offence gender neutral. It does not answer the fundamental issue as to whether punishment for adultery is valid in constitutional terms. The error in Sowmithri Vishnu lies in holding that there was no constitutional infringement. The judgment postulates that: 7 It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to take note of the transformation which the society has undergone. The Law Commission of India in its Forty-second Report, 1971, recommended the retention of Section 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. The suggested modification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a single woman. His wife is not regarded by the law as a person whose agency and dignity is affected. The underlying basis of not penalising a sexual act by a married man with a single woman is that she (unlike a married woman) is not the property of a man (as the law would treat her to be if she is married). Arbitrariness is writ large on the provision. The problem with Section 497 is not just a matter of under inclusion. The court in Sowmithri Vishnu recognised that an under-inclusive definition is not necessarily discriminatory and that the legislature is entitled to deal with the evil where it is felt and seen the most. The narrow and formal sense in which the provisions of Article 14 have been construed is evident again from the following observations: 8 The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality as a cornerstone of a truly equal society. For these reasons, the decision in Sowmithri Vishnu cannot be regarded as a correct exposition of the constitutional position. Sowmithri Vishnu is overruled. 12 The decision of a two judge Bench in V Revathi v Union of India(1988) 2 SCC 72) involved a challenge to Section 497 (read with Section 198(2) of the Code of Criminal Procedure) which disables a wife from prosecuting her husband for being involved in an adulterous relationship. The court noted that Section 497 permits neither the husband of the offending wife to prosecute her nor does it permit the wife to prosecute her offending husband for being disloyal. This formal sense of equality found acceptance by the court. The challenge was repelled by relying on the decision in Sowmithri Vishnu. Observing that Section 497 and Section 198(2) constitute a legislative packet , the court observed that the provision does not allow either the wife to prosecute an erring husband or a husband to prosecute the erring wife. In the view of the court, this indicated that there is no discrimination on the ground of sex. In the view of the court : 5 The law does not envisage the punishment of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 497 needs an inquiry into the origins of the provision itself as well as the offence of adultery more broadly. The history of adultery throws light upon disparate attitudes toward male and female infidelity, and reveals the double standard in law and morality that has been applied to men and women. 20 15 Throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these. Ibid The earliest recorded injunctions against adultery are found in the ancient code of the Babylonian king Hammurabi, dating from circa 1750 B.C. The code prescribed that a married woman caught in adultery be bound to her lover and thrown into water so that they drown together. 22 By contrast, Assyrian law considered adultery to be a private wrong for which the husband or father of the woman committing adultery could seek compensation from her partner. Ibid, at page 11. English historian Faramerz Dabhoiwala notes that the primary purpose of these laws was to protect the property rights of men: Indeed, since the dawn of history every civilisation had prescribed severe laws against at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... setts Bay Colony introduced the death penalty for committing adultery. 35 The strict morality of the early English colonists is reflected in the famous 1850 novel 'The Scarlet Letter by Nathaniel Hawthorne, in which an unmarried woman who committed adultery and bore a child out of wedlock was made to wear the letter A (for adulterer) when she went out in public; her lover was not so tagged, suggesting that women were punished more severely than men for adultery, especially when they had a child as evidence.36 18 In 1650, England enacted the infamous Act for Suppressing the Detestable Sins of Incest, Adultery and Fornication, which introduced the death penalty for sex with a married woman.37 The purpose of the Act was as follows: For the suppressing of the abominable and crying sins of adultery wherewith this Land is much defiled, and Almighty God highly displeased; be it enacted...That in case any married woman shall be carnally known by any man (other than her husband) as well the man as the woman shall suffer death. The Act was a culmination of long-standing moral concerns about sexual transgressions, sustained endeavours to regulate conjugal matters on a secular plain, and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng away a servant from a master and thus depriving the master of the quasi-proprietary interest in his services. 48 Faramerz Dabhoiwala notes that a man s wife was considered to be his property, and that another man s unlawful copulation with her warranted punishment: [T]he earliest English law codes, which date from this time, evoke a society where women were bought and sold and lived constantly under the guardianship of men. Even in cases of consensual sex, its system of justice was mainly concerned with the compensation one man should pay to another for unlawful copulation with his female chattel. 21 When the IPC was being drafted, adultery was not a criminal offence in common law. It was considered to be an ecclesiastical wrong left to the feeble coercion of the Spiritual Court, according to the rules of Canon Law. 49 Lord Thomas Babington Macaulay, Chairman of the First Law Commission of India and principal architect of the IPC, considered the possibility of criminalizing adultery in India, and ultimately concluded that it would serve little purpose. 50 According to Lord Macaulay, the possible benefits from an adultery offence could be better achieved through pecuniary compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their concern about the possibility of the natives resorting to illegal measures to avenge the injury in cases of adultery: The backwardness of the natives to have recourse to the courts of redress in cases of adultery, [Colonel Sleeman] asserts, arises from the utter hopelessness on their part of ever getting a conviction in our courts upon any evidence that such cases admit of; that is to say, in courts in which the Mahommedan law is observed. The rich man not only feels the assurance that he could not get a conviction, but dreads the disgrace of appearing publicly in one court after another, to prove his own shame and his wife s dishonor. He has recourse to poison secretly, or with his wife s consent; and she will generally rather take it than be turned out into the streets a degraded outcast. The seducer escapes with impunity, he suffers nothing, while his poor victim suffers all that human nature is capable of enduring The silence of the Penal Code will give still greater impunity to the seducers, while their victims will, in three cases out of four, be murdered, or driven to commit suicide. Where husbands are in the habit of poisoning their guilty wives from the want of lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for committing adultery, nor can they be aggrieved by it, by virtue of their status as their husband s property. Section 497 is also premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women are 'victims of adultery and therefore require the beneficial exemption under Section 497 has been deeply criticized by feminist scholars, who argue that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society. 59 Effectively, Indian jurisprudence has interpreted the constitutional guarantee of sex equality as a justification for differential treatment: to treat men and women differently is, ultimately, to act in women s interests.60 The status of Section 497 as a special provision 61 operating for the benefit of women, therefore, constitutes a paradigmatic example of benevolent patriarchy. 25 Throughout history, the law has failed to ask the woman question.62 It has failed to interrogate the generalizations or stereotypes about the nature, character and abilities of the sexes on which laws rest, and how these notions affect women and their interaction wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision criminalizing adultery has been struck down through judicial action. The decisions of these courts reflect how the treatment of the law towards adultery has evolved with the passage of time and in light of changing societal values. 27 In 2015, the South Korean Constitutional Court, 64 by a majority of 7-2 struck down Article 241 of the Criminal Law; a provision which criminalized adultery with a term of imprisonment of two years as unconstitutional. In doing so, South Korea joined a growing list of countries in Asia and indeed around the world that have taken the measure of effacing the offence of adultery from the statute books, considering evolving public values and societal trends. The Constitutional Court had deliberated upon the legality of the provision four times previously 65 , but chose to strike it down when it came before it in 2015, with the Court s judgement acknowledging the shifting public perception of individual rights in their private lives. The majority opinion of the Court was concurred with by five of the seven judges 66 who struck down the provision. The majority acknowledged that the criminal provision had a legitimate legislative purpose in intendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination. Moving on to the effectiveness of the provision at hand, the Court remarked that criminalizing adultery did not help save a failing marriage. The Court remarked that it was obvious that once a spouse was accused of adultery, the consequence was generally intensified spousal conflict as opposed to the possibility of family harmony: Existing families face breakdown with the invoking of the right to file an accusation. Even after cancellation of the accusation, it is difficult to hope for emotional recovery between spouses. Therefore, the adultery crime can no longer contribute to protecting the marital system or family order. Furthermore, there is little possibility that a person who was punished for adultery would remarry the spouse who had made an accusation against himself/herself. It is neither possible to protect harmonious family order because of the intensified conflict between spouses in the process of criminal punishment of adultery. 69 Addressing the concern that an abolition of a penal consequence would result in chaos in sexual morality or an increase of divorce due to adultery, the Court concluded that there was no data at all to support these claims in coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed a much stricter punishment for women as compared to their male counterparts. 73 The challenge was brought primarily under Article 21 of the Ugandan Constitution, which guaranteed equality under the law, Article 24 which mandates respect for human dignity and protection from inhuman treatment and Article 33(1), which protected the rights of women under the Constitution. 74 The Respondent prayed that the Court consider making the provision of adultery equal in its treatment of men and women, instead of striking it down completely. However, in its holding, the Court denied this request, holding it could not prescribe a punishment under penal law to change the statute. The Court held that Section 154 of the Penal Code was wholly unconstitutional as being violative of the provisions of the Constitution, and remarked: ...the respondent did not point out to us areas that his Court can or should modify and adapt to bring them in conformity with the provisions of the Constitution. The section is a penal one and this Court in our considered opinion cannot create a sentence that the courts can impose on adulterous spouses. Consequently, it is our finding that the provision of section 154 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in fact the married status of one of the actors, and the mere fact that the commission of the act consisted of a mere sexual act or a series of them is legally irrelevant. If the argument that adultery, though unconventional, is an act related to marriage and therefore fundamentally private is accepted, then it deserves equal protection. Siegel cites Laurence Tribe, on accepting the 'unconventional variants that also form a part of privacy: Ought the right to marriage, as elucidated by Griswold, Loving v. Virginia, Zablocki, Boddie v. Connecticut and Moore, also include marriage's unconventional variants -in this case the adulterous union? 83 The mere fact that adultery is considered unconventional in society does not justify depriving it of privacy protection. The freedom of making choices also encompasses the freedom of making an 'unpopular choice. This was articulated by Justice Blackmun in his dissent in Hardwick Hardwick, 478 U.S.205: A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices. Ibid, at page 206 Siegel concludes that the privacy protectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to privacy safeguards an individual s deeply personal choices which includes a recognition accorded to the inherently private nature of all consensual adult sexual activity. 91 This understanding of sexual privacy found favour with the U.S. Supreme Court, which in Thornburgh v American College of Obstetricians and Gynaecologists 92 quoted Charles Fried with approval: The concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole. Ibid, at Page 777 Siegel reiterates the underlying intangible value of adult consensual sexual activity: The real importance of sexuality to humans, more so in today's world of effective birth control than ever, lies in the possibilities for self-realization and definition inherent in sexual choices. Sexual experience offers selftranscendence, expression of private fantasy, release of inner tensions, and meaningful and acceptable expression of regressive desires to be again the free child - unafraid to lose control, playful, vulnerable, spontaneous, sensually loved. 94 Reflecting on the relationship between marital privacy and associational freedom, Spiegel remarks the heterogeneity of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter ways to signal respect for the institution of marriage and better uses of law enforcement than policing private, consensual sexual activity. 98 E Confronting patriarchy Norms and ideals arise from the yearning that it is an expression of freedom: it does not have to be this way, it could be otherwise. 99 30 The petitioner urged that (i) The full realisation of the ideal of equality enshrined in Article 14 of the Constitution ought to be the endeavour of this Court; (ii) the operation of Section 497 is a denial of equality to women in marriage; and (iii) the provision is manifestly arbitrary and amounts to a violation of the constitutional guarantee of substantive equality. The act which constitutes the offence under Section 497 of the Penal Code is a man engaging in sexual intercourse with a woman who is the wife of another man . For the offence to arise, the man who engages in sexual intercourse must either know or have reason to believe that the woman is married. Though a man has engaged in sexual intercourse with a woman who is married, the offence of adultery does not come into being where he did so with the consent or connivance of her husband. These ingredients of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnificance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision. 33 The test of manifest arbitrariness is rooted in Indian jurisprudence. In E P Royappa v State of Tamil Nadu(1974) 4 SCC 3), Justice Bhagwati characterised equality as a dynamic construct which is contrary to arbitrariness: 85 Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., a way of life , and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. Ibid. at page 99 34 The decision in Shayara Bano, holds that legislation or state action which is manifestly arbitrary would have elements of caprice and irrationality and would be characterized by the lack of an adequately determining principle. An adequately determining principle is a principle which is in consonance with constitutional values. With respect to criminal legislation, the principle which determines the act that is criminalized as well as the persons who may be held criminally culpable, must be tested on the anvil of constitutionality. The principle must not be determined by majoritarian notions of morality which are at odds with constitutional morality. In Navtej Singh Johar v Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. Choices in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute. In its associational attributes, it links up with the human desire to be intimate with a person of one s choice. Sharing of physical intimacies is a reflection of choice. In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges that even in the most private of zones, the individual must have the ability to make essential decisions. Sexuality cannot be dis-associated from the human personality. For, to be human involves the ability to fulfil sexual desires in the pursuit of happiness. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices. The sexual choices of an individual cannot obviously be imposed on others in society and are premised on a voluntary acceptance by consenting parties. Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. 107 The disadvantage must be addressed not by treating a woman as 'weak but by construing her entitlement to an equal citizenship. The former legitimizes patronising attitudes towards women. The latter links true equality to the realisation of dignity. The focus of such an approach is not simply on equal treatment under the law, but rather on the real impact of the legislation.108 Thus, Section 497 has to be examined in the light of existing social structures which enforce the position of a woman as an unequal participant in a marriage. Catherine Mackinnon implores us to look more critically at the reality of this family sphere, termed ''personal, and view the family as a crucible of women s unequal status and subordinate treatment sexually, physically, economically, and civilly. 109 In a social order which has enforced patriarchal notions of sexuality upon women and which treats them as subordinate to their spouses in heterosexual marriages, Section 497 perpetuates an already existing inequality. 39 Facially, the law may be construed to operate as an exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under the Section. However, a married man may engage in sexual relations outside marriage with a single woman without any repercussion in criminal law. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency. The consent of the husband serves as the key to the exercise of the sexual agency of his spouse. That the married woman is in a consensual relationship, is of no consequence to the possible prosecution. A married man may engage in sexual relations with an unmarried woman who is not his wife without the fear of opening his partner to prosecution and without the consent of his spouse. No recourse is provided to a woman against her husband who engages in sexual relations outside marriage. The effect of Section 497 is to allow the sexual agency of a married woman to be wholly dependent on the consent or connivance of her husband. Though Section 497 does not punish a woman engaging i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the 'property interest of a husband in his wife.110 In this view, a woman is confounded with things that can be possessed. In construing the spouse as a passive or inanimate object, the law on adultery seeks to punish a person who attempts theft on the property of the husband. Coontz and Henderson write that the stabilization of property rights and the desire to pass on one s property to legitimate heirs, were what motivated men to restrict the sexual behavior of their wives.111 44 Underlying Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible. In condemning the sexual agency of the woman, only the husband, as the 'aggrieved party is given the right to initiate prosecution. The proceedings once initiated, would be geared against the person who committed an act of 'theft or 'trespass upon his spouse. Sexual relations by a man with another man s wife is therefore considered as theft of the husband s property. Ensuring a man s control over the sexuality of his wife was the true purpose of Section 497. Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chud J.) held thus: A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate. Such a discrimination will be in violation of the constitutional guarantee against discrimination in Article 15(1). 46 Section 497 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. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(3) and held thus: 55. The response given by Dr. Ambedkar suggests that he certainly favoured special provisions for women and children with a view to integrate them into society and to take them out of patriarchal control Ibid. at page 837 56. What clearly emerges from this discussion is that Article 9(2) of the draft Constitution [now Article 15(3)] was intended to discriminate in favour of women and children a form of affirmative action to their advantage. Ibid. at page 837 48 Article 15(3) 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. Articles 14 to 18, being constituents of a single code on equality, supplement each other and incorporate a non-discrimination principle. Neither Article 15(1), nor Article 15(3) allow 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtue has no qualms of subjecting them to virulent attack: to rape, honour killings, sex-determination and infanticide. As an embodiment of virtue, society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home. This is part of the process of raising women to a pedestal conditioned by male notions of what is right and what is wrong for a woman. The notion that women, who are equally entitled to the protections of the Constitution as their male counterparts, may be treated as objects capable of being possessed, is an exercise of subjugation and inflicting indignity. Anachronistic conceptions of 'chastity and 'honour have dictated the social and cultural lives of women, depriving them of the guarantees of dignity and privacy, contained in the Constitution. 50 The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking on a paternalistic role and granting rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink- women are equal citizens of this nation, entitled to the protections of the Constitution. Any legislation which results in the denial of these Constitutional guarantees to women, cannot pass the test of constitutionality. Patriarchy and paternalism are the underpinnings of Section 497. It needs no iteration that misogyny and patriarchal notions of sexual control find no place in a constitutional order which has recognised dignity as intrinsic to a person, autonomy being an essential component of this right. The operation of Section 497 denotes that 'adulterous women virtually exercise no agency; or at least not enough agency to make them criminally liable. 130 They are constructed as victims. As victims, they are to be protected by being exempt from sanctions of a criminal nature. Ibid. Not only is there a denial of sexual agency, women are also not seen to be harmed by the offence. Ibid. Thus, the provision is not simply about protecting the sanctity of the marital relationship. It is all about protecting a husband s interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The strategy employed by Rawls is to focus on a category of goods which an individual would desire irrespective of what individuals conception of 'good might be. These neutrally desirable goods are described by Rawls as 'primary social goods and may be listed as rights, liberties, powers, opportunities, income, wealth, and the constituents of selfrespect. Rawls's conception of self-respect, as a primary human good, is intimately connected to the idea of autonomy. Self-respect is founded on an individual's ability to exercise her native capacities in a competent manner. (Emphasis supplied) G.1 Exacting fidelity: the intimacies of marriage 54 Marriage as a social institution has undergone changes. Propelled by access to education and by economic and social progress, women have found greater freedom to assert their choices and preferences. The law must also reflect their status as equals in a marriage, entitled to the constitutional guarantees of privacy and dignity. The opinion delivered on behalf of four judges in Puttaswamy held thus: 130 As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt flexibly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person's nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society. This Court in Puttaswamy has elucidated that privacy is the entitlement of every individual, with no distinction to be made on the basis of the individual s position in society. 271.Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. 58 In Navtej, one of us (Chandrachud J) held that the right to sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity. The application of Section 497 is a blatant violation of these enunciated rights. Will a trial to prove adultery lead the wife to tender proof of her fidelity? In Navtej, the principle was elucidated thus: In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. In so far as two individuals engage in acts based on consent, the law cannot intervene. Any intrusion in this private sphere would amount to deprivation of autonomy and sexual agency, which every individual is imbued with. In Puttaswamy, it was recognised that a life of dignity entails that the inner recesses of the human personality be secured from unwanted intrusion : 127.The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a lif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. All too often, spouses who have drifted apart irrevocably may be compelled for reasons personal to them to continue with the veneer of a marriage which has ended for all intents and purposes. The interminably long delay of the law in the resolution of matrimonial conflicts is an aspect which cannot be ignored. The realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law. Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing. 61 The state undoubtedly has a legitimate interest in regulating many aspects of marriage. That is the foundation on which the state does regulate rights, ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is violative of the fundamental rights to equality and liberty as indeed, the right to pursue a meaningful life within the fold of Articles 14 and 21. 62 The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity. Section 497 denies the individual identity of a married woman, based on age-old societal stereotypes which characterised women as the property of their spouse. It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as 'public or 'private . H Towards transformative justice 63 Constitutional values infuse the letter of the law with meaning. True to its transformative vision, the text of the Constitution has, time and again, been interpreted to challenge hegemonic structures of power and secure the values of dignity and equality for its citizens. One of the most significant of the battles for equal citizenship in the country has been fought by women. Feminists have overcome seemingly insurmountab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right. Section 497 denudes a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality: Infidelity was born on the day that natural flows of sexual desire were bound into the legal and formal permanence of marriage; in the process of ensuring male control over progeny and property, women were chained within the fetters of fidelity. 137 Constitutional protections and freedoms permeate every aspect of a citizen s life - the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality. 67 Criminal law must be in consonance with constitutional morality. The law on adultery enforces a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derives its origin from the French word 'avoutre', which has evolved from the Latin verb 'adulterium' which means to corrupt. The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as 'adultery‟. This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the 'property‟ of her husband; and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an 'abettor‟, even though the relationship was consensual. 4. THE DOCTRINE OF COVERTURE Adultery, as an offence, was not a crime under Common Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over sacramental matters that included marriage, separation, legitimacy, succession to personal property, etc. 2 In England, coverture determined the rights of married women, under Common Law. A 'feme sole' transformed into a 'feme covert' after marriage. 'Feme covert' was based on the doctrine of 'Unity of Persons‟ i.e. the husband and wife were a singl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visible‟ to the law. The principle of coverture subsisted throughout the marriage of the couple. It was not possible to obtain a divorce through civil courts, which refused to invade into the jurisdiction of the church. Adultery was the only ground available to obtain divorce. The origin of adultery under Common Law was discussed in the English case Pritchard v. Pritchard and Sims[1966] 3 All E.R. 601], wherein it was held that: In 1857, when marriage in England was still a union for life which could be broken only by private Act of Parliament, under the common law, three distinct causes of action available to a husband whose rights in his wife were violated by a third party, who enticed her away, or who harboured her or who committed adultery with her In the action for adultery, known as criminal conversation, which dates from before the time of BRACTON, and consequently lay originally in trespass, the act of adultery itself was the cause of action and the damages punitive at large. It lay whether the adultery resulted in the husband's losing his wife's society and services or not. All three causes of action were based on the recognition accorded by the common law to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort, gave a married man the right to claim damages against the man who had entered into a sexual relationship with his wife. The consent of the wife to the relationship, did not affect the entitlement of her husband to sue. The legal position of matrimonial wrongs underwent a significant change with the passing of the Matrimonial Causes Act, 1857 in England. 10 Section 59 of this Act abolished the Common Law action for criminal conversation . 11 Section 33 empowered the Courts to award damages to the husband of the paramour for adultery. 12 The claim for damages for adultery was to be tried on the same principles, and in the same manner, as actions for 'criminal conversation‟ which were formerly tried at Common Law. Id. The status of the wife, however, even after the passing of the Matrimonial Causes Act, 1857 remained as 'property of the husband‟, since women had no right to sue either their adulterous husband or his paramour. Gender equality between the spouses came to be recognised in some measure in England, with the passing of the Matrimonial Causes Act, 1923 which made 'adultery‟ a ground for divorce, available to both spouses, instead of only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstand on what principle adultery is treated with more tenderness than forgery or perjury. That some classes of the natives of India disapprove of the lenity with which adultery is now punished we fully believe, but this in our opinion is a strong argument against punishing adultery at all. There are only two courses which in our opinion can properly be followed with respect to this and other great immoralities. They ought to be punished very severely, or they ought not to be punished at all. The circumstance that they are left altogether unpunished does not prove that the Legislature does not regard them with disapprobation. But when they are made punishable the degree of severity of the punishment will always be considered as indicating the degree of disapprobation with which the Legislature regards them. We have no doubt that the natives would be far less shocked by the total silence of the penal law touching adultery than by seeing an adulterer sent to prison for a few months while a coiner is imprisoned for fourteen years. (Emphasis supplied) The Law Commissioners in their Report (supra) further stated: ..The population seems to be divided into two classes those whom neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountry as polygamy. We leave it to the slow, but we trust the certain operation of education and of time. But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law. We have given the reasons which lead us to believe that any enactment on this subject would be nugatory. And we are inclined to think that if not nugatory it would be oppressive. It would strengthen hands already too strong. It would weaken a class already too weak. It will be time enough to guard the matrimonial contract by penal sanctions when that contract becomes just, reasonable, and mutually beneficial. (Emphasis supplied) Colonel Sleeman opposed the reasoning of the Law Commissioners on this subject. The 'backwardness of the natives‟ to take recourse to the courts for redress in cases of adultery, arose from 'the utter hopelessness on their part of getting a conviction.‟ He was of the view that if adultery is not made a crime, the adulterous wives will alone bear the brunt of the rage of their husbands. They might be tortur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir most celebrated lawyers have considered the omission as a defect. Neither the immorality of the act, nor its injurious consequences on the happiness of females, and very frequently on the peace of society and the lives of its members, can be denied. The reason then why it should go unpunished does not seem very clear. It is emphatically one of that nature to which I have just referred, in which the resentment of the injured party will prompt him to take vengeance into his own hands, and commit a greater offence, if the laws of his country refuse to punish the lesser. It is the nature of man, and no legislation can alter it, to protect himself where the laws refuse their aid; very frequently where they do not; but where they will not give protection against injury, it is in vain that they attempt to punish him who supplies by his own energy their remissness. Where the law refuses to punish this offence, the injured party will do it for himself, he will break the public peace, and commit the greatest of all crimes, and he is rarely or never punished. Assaults, duels, assassinations, poisonings, will be the consequence. They cannot be prevented; but, perhaps, by giving the aid of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in divorce (civil proceedings). The section confers only upon the husband the right to prosecute the adulterous male, but does not confer any right on the aggrieved wife to prosecute her adultererous husband. It was recommended to introduce an amendment to incorporate the concept of equality between sexes in marriage vis- -vis the offence of adultery. The proposed change was to reflect the transformation of women‟s status in Indian society. However, the recommendation was not accepted. 6.3. In March 2003, the Malimath Committee on Reforms of Criminal Justice System24, was constituted by the Government of India, which considered comprehensive measures for revamping the Criminal Justice System. The Malimath Committee made the following recommendation with respect to Adultery : 16.3.1 A man commits the offence of adultery if he has sexual intercourse with the wife of another man without the consent or connivance of the husband. The object of this Section is to preserve the sanctity of the marriage. The society abhors marital infidelity. Therefore, there is no good reason for not meting out similar treatment to wife who has sexual intercourse with a married man. 16.3.2 The Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legislature. Given the special interest of the State, it was considered rational to classify adultery as a crime. A similar provision exists in the State of New York, wherein adultery is treated as a Class B misdemeanor.30 By way of contrast, in the State of North Carolina, it was held in the Judgment of Hobbs v. Smith (No. 15 CVS 5646 (2017) [Superior Court of North Carolina), that adultery should not be treated as a criminal offence. The Superior Court of North Carolina, relied on the judgment of the U.S. Supreme Court, in Lawrence v. Texas (539 US 558 (2003) wherein it was recognized that the right to liberty provides substantial protection to consenting adults with respect to decisions regarding their private sexual conduct. The decision of an individual to commit adultery is a personal decision, which is sufficiently similar to other personal choices regarding marriage, family, procreation, contraception, and sexuality, which fall within the area of privacy. Following this reasoning in Lawrence, the Superior Court of the State of North Carolina held that the State Law criminalizing adultery violated the substantive due process, and the right to liberty under the Fourteenth A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence from the Turkish Penal Code of 1926. The Court noted that the provision was violative of the Right to Equality, as guaranteed by the Turkish Constitution since it treated men and women differently for the same act. *South Korea In South Korea, adultery as a criminal offence was struck down by the Constitutional Court of Korea in, what is popularly known as, the Adultery Case of February 26, 2015 Adultery Case, 27-1 (A) KCCR 20, February 26, 2015. The Constitutional Court of Korea held that Article 241, which provided for the offence of adultery, was unconstitutional as it violated Article 10 of the Constitution, which promotes the right to personality, the right to pursue happiness, and the right to self-determination. The right to selfdetermination connotes the right to sexual selfdetermination that is the freedom to choose sexual activities and partners. Article 241 was considered to restrict the right to privacy protected under Article 17 of the Constitution since it restricts activities arising out of sexual life belonging to the intimate private domain. Even though the provision had a legitimate object to preserve marital fidelity between spouses, and monogamy, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Aziz v. State of Bombay (1954 SCR 930), Section 497 was challenged before this Court inter alia on the ground that it contravened Articles 14 and 15 of the Constitution, since the wife who is pari delicto with the adulterous man, is not punishable even as an abettor. A Constitution Bench of this Court took the view that since Section 497 was a special provision for the benefit of women, it was saved by Article 15(3) which is an enabling provision providing for protective discrimination. In Yusuf Aziz (supra), the Court noted that both Articles 14 and 15 read together validated Section 497. 8.2. Later, in Sowmithri Vishnu v. Union of India Anr. (1985) Supp SCC 137), a three-judge bench of this Court addressed a challenge to Section 497 as being unreasonable and arbitrary in the classification made between men and women, unjustifiably denied women the right to prosecute her husband under Section 497. It was contended that Section 497 conferred a right only upon the husband of the adulterous woman to prosecute the adulterer; however, no such right was bestowed upon the wife of an adulterous man. The petitioners therein submitted that Section 497 was a flagrant violation of gender di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, the constitutionality of Section 497 is assailed by the Petitioners on the specific grounds that Section 497 is violative of Articles 14, 15 and 21. 9.1. Mr. Kaleeswaram Raj learned Counsel appearing for the Petitioners and Ms. Meenakshi Arora, learned Senior Counsel appearing for the Intervenors inter alia submitted that Section 497 criminalizes adultery based on a classification made on sex alone. Such a classification bears no rational nexus with the object sought to be achieved and is hence discriminatory. It was further submitted that Section 497 offends the Article 14 requirement of equal treatment before the law and discriminates on the basis of marital status. It precludes a woman from initiating criminal proceedings. Further, the consent of the woman is irrelevant to the offence. Reliance was placed in this regard on the judgment of this Court in W. Kalyani v. State (2012) 1 SCC 358). The Petitioners submit that the age-old concept of the wife being the property of her husband, who can easily fall prey to seduction by another man, can no longer be justified as a rational basis for the classification made under Section 497. An argument was made that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fundamental Rights of citizens. 9.2. On the other hand, Ms. Pinky Anand, learned ASG forcefully submitted that adultery must be retained as a criminal offence in the I.P.C. She based her argument on the fact that adultery has the effect of breaking up the family which is the fundamental unit in society. Adultery is undoubtedly morally abhorrent in marriage, and no less an offence than the offences of battery, or assault. By deterring individuals from engaging in conduct which is potentially harmful to a marital relationship, Section 497 is protecting the institution of marriage, and promoting social wellbeing. The Respondents submit that an act which outrages the morality of society, and harms its members, ought to be punished as a crime. Adultery falls squarely within this definition. The learned ASG further submitted that adultery is not an act that merely affects just two people; it has an impact on the aggrieved spouse, children, as well as society. Any affront to the marital bond is an affront to the society at large. The act of adultery affects the matrimonial rights of the spouse, and causes substantial mental injury. Adultery is essentially violence perpetrated by an outsid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivorced woman, does not constitute 'adultery‟ under Section 497. v. If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery. The anomalies and inconsistencies in Section 497 as stated above, would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory. 12. The constitutional validity of section 497 has to be tested on the anvil of Article 14 of the Constitution. 12.1. Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination. 12.2. Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is permissible if two conditions are satisfied: i. The classification is made on the basis of an 'intelligible differentia‟ which distinguishes persons or things that are grouped together, and separates them from the rest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of its enactment with the passage of time may become outdated and discriminatory with the evolution of society and changed circumstances. 53 What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic. A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality. 54 Section 497 of the I.P.C. was framed in the historical context that the infidelity of the wife should not be punished because of the plight of women in this country during the 1860‟s. Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals. 55 This situation is not true 155 years after the provision was framed. With the passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change. The historical background in which Section 497 was framed, is no longer relevant in contemporary society. It would be unrealistic to proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State to frame beneficial legislation in favour of women and children, to protect and uplift this class of citizens. Section 497 is a penal provision for the offence of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution. The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as 'beneficial legislation‟. This Court in Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by Lrs. And Ors. (1991) 4 SCC 312) held that: Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special provision to accord to women socio-economic equality. As a fact Art. 15(3) as a fore runner to common code does animate to make law to accord socio-economic equality to every female citizen of India, irrespective of religion, race, caste or religion. In W. Kalyani v. State(2012) 1 SCC 358) this Court has recognised the gender bias in Section 497. The court in Kalyani (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences. Throughout history, the State has long retained an area of regulation in the institution of marriage. The State has regulated various aspects of the institution of marriage, by determining the age when an adult can enter into marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas which concern society and public well-being as a whole. Adultery has the effect of not only jeopardising the marriage between the two consenting adults, but also affects the growth and moral fibre of children. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral, in order to bring it within the ambit of criminal law? The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment. The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices. The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State. 18. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that : (i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution. (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in World History (2008), at page 30 26 Vern Bullough, Medieval Concepts of Adultery, at page 7 27 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 27 28 Martin Siegel, For Better or for Worse: Adultery, Crime the Constitution, Vol. 30, Journal of Family Law (1991), at page 46 29 Vern Bullough, Medieval Concepts of Adultery, at page 7 30 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 27 31 Jeremy D. Weinstein, Adultery, Law, and the State: A History, Vol. 38, Hastings Law Journal (1986), at page 202; R. Huebner, A History of Germanic Private Law (F. Philbrick trans. 1918) 32 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6 33 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30 35 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 30 36 James R. Mellow, Hawthorne's Divided Genius, The Wilson Quarterly (1982) 37 Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996). 38 Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tlett, Feminist Legal Methods, Harvard Law Review (1990) 63 U N Working Group on Women s Human Rights: Report (18 October, 2012), available at: http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672 LangID=E 64 Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do 65 Firstpost, South Korean court abolishes law that made adultery illegal, (February 26, 2015), available at https://www.firstpost.com/world/south-korean-court-abolishes-law-saying-adultery-is-illegal-2122935.html 66 Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong, Justice Seo Ki-Seog and Justice Cho Yong-Ho (Adultery is Unconstitutional) 67 Article 10 of the South Korean Constitution All citizens are assured of human worth and dignity and have the right to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human rights of individuals. 68 Supra, note 64, Part V- A (3)(1) ('Change in Public s Legal Awareness under the head of 'Appropriateness of Means and Least Restrictiveness ) 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospects, and 'personal laws , Oxford University Press and New York University School of Law (2006) 110 Phyllis Coleman, Who s Been Sleeping in My Bed? You and Me, and the State Makes Three, Vol. 24, Indian Law Review (1991) 111 Women s Work, Men s Property: The Origins of Gender and Class (S Coontz and P Henderson eds.) (1986) 112 Rosemary Coombe, Is There a Cultural Studies of Law?, in A Companion to Cultural Studies, Toby Miller (ed.), Oxford, (2001) 113 Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship, Yale Journal of Law the Humanities, (2001), at page 19 121 Nandita Haksar, Dominance, Suppression and the Law in Women and the Law: Contemporary Problems (Lotika Sarkar and B. Sivaramayya eds.), Vikas Publishing House (1994) 125 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35 that the husband is the owner of the wife s sexual agency 130 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 119 137 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting Archana Verma, Stree Vimarsh Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uma Chakravarti, Gendering Caste Through a Feminist Lens, STREE Publications (2003) at page 71. 15 156th Report on the Indian Penal Code (Vol. I), Law Commission of India at para 9.43 at page 169 Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf 16 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code 17 A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q 18 The laws governing adultery in the Colonial areas were laid down in Regulation XVII of 1817, and Regulation VII of 1819; the Law Commissioners observed that the strict evidentiary and procedural requirements, deter the people from seeking redress. 19 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code 20 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code 21 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code 22 42nd Report on the Indian Penal Code, Law Commission of India Available at: http://lawcommissionofindia.nic.in/1-50/report42. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reform (Marriage and Divorce) Act, 1976. [Malaysia] states, 58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so. (2) A petition under subsection (1) may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery. (3) Where damages have been claimed against a co-respondent- (a) if, after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, the co-respondent shall be discharged from the proceedings; or (b) if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the petitioner such damages as it may think fit, but so that the award shall not include any exemplary or punitive element. 37 S. 183, Penal Code, 1907 [Japan], Whoever commits adultery with a married woman will be punished by prison upto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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