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Adultery law archaic, treated women as chattle, demeaned their status: Justice Nariman


Press Trust of India New Delhi
The law penalising adultery was utterly irrational, archaic and demeaned the status of a woman by treating her as a chattle, the Supreme Court Thursday said and struck down the penal provision making it a criminal offence.
Justice R F Nariman, who was part of the five-judge constitution bench headed by Chief Justice Dipak Misra, said for the purpose of Section 497 (punishment for adultery) of IPC, a woman was treated as chattle, making clear that the provision discriminated against women on grounds of sex only.
The bench unanimously declared that adultery was not a crime and struck down the anti-adultery law, saying it was unconstitutional as it dented the individuality of women and was violative of rights to equality and equal opportunity to them.
Besides this, the top court also held Section 198 (prosecution of offences against marriage) of the CrPC as constitutionally infirm saying it was a blatantly discriminatory provision in which the husband alone or somebody on his behalf who can file a complaint against man for this offence.
Section 497 of the 158-year-old IPC says: "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."

Adultery was punishable by a maximum five years in jail or fine or both.
Justice Nariman, who penned 46 pages in the 243-page judgment, rejected the contention of the Centre that the object of Section 497 IPC was to protect and preserve the sanctity of marriage.
"The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow... Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband," the judge said.
The court said no deterrent effect has existed which may be a legitimate consideration for a State enacting criminal law.
It said "manifest arbitrariness" was writ large even in cases where the offender happened to be a married woman whose marriage has broken down due to which she no longer cohabits with her husband and may have obtained a decree for judicial separation against her spouse or preparing for divorce.
If during this period, she has sex with another man, he is immediately guilty of the offence, it noted.
The court said dignity of an individual, as mentioned in the Preamble to the Constitution, is a facet of Article 21 and a statutory provision belonging to the hoary past which "demeans or degrades the status of a woman" obviously falls foul of modern constitutional doctrine and must be struck down on this ground.
"Ancient notions of the man 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," the judge said.
He said when these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law apply to interdict such law, but when such law falls foul of constitutional guarantees, it is the solemn duty of this court not to wait for legislation but to strike down such law.
Referring to the apex court's five-judge bench triple talaq verdict, Justice Nariman said it was only the minority view of the two judges that one must wait for the law to change legislatively by way of social reform and the majority view was the exact opposite, leading to declaration of triple talaq constitutionally infirm.
"We are of the view that the statement in this judgment that stability of marriages is not an ideal to be scorned, can scarcely be applied to this provision, as we have seen that marital stability is not the object for which this provision was enacted," he said.
The judge held Section 497 IPC as discriminatory and violative of Article 14 (right to equality) and Article 15(1) (the State shall not discriminate against any citizen on grounds only of religion, caste, sex).
The court said the real heart of this "archaic law" is disclosed when consent or connivance of the married woman's husband is obtained and at that time, the married or unmarried man who has sexual intercourse with such a woman, does not 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," Justice Nariman said.
It was clear that this archaic law has long outlived its purpose and does not square with today's constitutional morality, he said, adding that the provision has become utterly irrational now.

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First Published: Sep 27 2018 | 7:11 PM IST

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