Question: Benny Kuriakose

The Supreme Court’s decision to scrap Section 497 of the Indian Penal Code, thereby decriminalising adultery, can it be seen as a cheer for promiscuity and licensing adultery?

Answer: Saji Mathew Kanayankal CST

INTRODUCTION
This question becomes relevant in the back ground of the declaration of the Supreme Court of India on 27 September 2018, that the Section 497 of the Indian Penal Code, 1860 along with Section 198 of the Code of Criminal Procedure, 1973are unconstitutional and thus the offence of adultery is no more a crime. While many activists, social workers and lawyers welcomed this verdict as progressive, there are others who would see this as a threat to the institution of marriage. Since adultery in married life is no more a crime, there is an impression that the sexual relationship outside marriage is allowed and there is nothing wrong in doing so. In order to clarify the above question, it would be good to have a look into the Section 497 of IPC.

IPC 497: A DISCRIMINATORY RULE?

IPC section 497 states; “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.” CrPC 198 speaks of the prosecution for offences against marriage. As per this law, only the man- and not the woman- who engaged in adultery could be punished. Moreover, only the husband of the woman (or ‘some person who had care of the woman on his behalf at the time when such offence was committed’) had the right to file case against the man with whom she commits adultery.

On the one hand, this law denies the equality of man and woman in a marital relationship. In an act of adultery only the man is liable to punishment and the woman shall not be punished even as an abettor. When two adults are engaged in one act and the offence is committed by both of them, while one is liable for the offence and other is absolved, is not justifiable. Former CJI Dipak Mishra observes that in comparing with the normal custom, this law does not keep the neutrality, one of the most important pillars of the criminal law. According to him, there is no rationality in treating one as victim and the other as a perpetrator in adultery when both the parties derive the benefit of the act.

On the other hand, this law presupposes that through marriage, the ownership over the body of a woman passes from her father to her husband. This law was formulated in the background of the Victorian era, where the woman has no independent personality but she is submitted into the personality of her husband. Therefore, a woman is sexually submissive and lacking agency of relationship. This kind of dualistic view of sexuality depicts woman as a commodity for the pleasure of man and ignores the individuality and identity of the women. In their verdict, the bench of judges unanimously observed that the law was based on gender stereotype and therefore it was violative of the fundamental rights to equality, non-discrimination, privacy, dignity and autonomy which were guaranteed under the Articles 14, 15 and 21 of the Constitution of India. In short, the exception for women from criminal liability was not a benefit; rather it denies her independent identity and personality limiting her as a property of man. Moreover, as they observed, this section of law also gives a license to the husband to use the woman as a chattel. The judgement underlines; “A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed underArticle 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution” (Judgement, no 28).

RATIONALE FOR THE NEW RULE

In their comment CJI (Rtd.) Dipak Mishra and Justice AM Khanwilkar opined that criminalising adultery is “absolutely, manifestly arbitrary.” According to them, Section 198 of the CrPC is violative of Article 15 of the Constitution which prohibits gender-based discrimination. It also affects the individual dignity and equality of women which would ‘invite the wrath of the Constitution. ’ With the promulgation of the new verdict, the husband is no more the ‘master of the wife’ and the law does not provide sovereignty to any one based on sex. In the ruling they emphasised that a woman has the right to bodily integrity, individual choice and personal autonomy, not just against the State, but also within the context of the home and the family. So, the new ruling tries to bring up the dignity of the women, in the context of autonomy, desire, choice and identity.

Another important rationale for the new verdict is the right to privacy of an individual. On 24 August 2017, the Supreme Court has ruled that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” As per the right to privacy, the State has no power to intrude into the private affairs of a person. In its rule the court pointed out that unless there is no violence, subjecting interpersonal relationships to the rigours of criminal law, would amount to an unwarranted intrusion into the right to privacy. The right toprivacy aims at safeguarding the autonomy of an individual by recognising the ability of the individual to control vital aspects of his or her life. Thus, the court upholds the cognitive decisions of every individual and respects his/her intimate relationships.

Along with the right to privacy, the Supreme Court wants to uphold human dignity and to protect the autonomy of each person. According to the panel of judges, human dignity has both intrinsic and instrumental values and dignity and freedom are ‘inseparably intertwined’ (Judgement, no 36). The court points out that making a sexual choice is essential to human liberty and even within the private zones the individual should be allowed to make his/her choices. The individual dignity has ‘a sanctified realm in a civilized society’(Judgement, no 1).

According to the court, in a pluralistic society like India, the law should be guided by constitutional morality, not by societal or common morality. Constitutional morality helps us to make decisions based on the core principles of the constitutional democracy. According to Dr B.R. Ambedkar, constitutional morality functions as an ‘effective coordination between conflicting interests of different people and the administrative cooperation to resolve the amicably without any confrontation amongst the various groups working for the realization of their ends at any cost.’ The verdict asserts; “in any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497” (Judgement no 25).

In his judgement, CJI (Rtd.) Dipak Misra widely describes the different nuances concerning the question of adultery as a crime (Judgment nos 42-50). Accordingly, the question of adultery is basically associated with marriage, which is a social institution and there are various provisions in India to protect the right of women in a married life. In an ideal condition, loyalty is kept in marital life. However, the question is not of such ideal condition. In certain situations, he says, “adultery may not be the cause of an unhappy marriage. It can be the result.” Treating adultery as a crime is an “immense intrusion into the extreme privacy of the matrimonial sphere” (Judgement, 49). A crime should be seen as “a wrong which affects the security or well being of the public generally so that the public has an interest in its suppression”(Judgement, 49). The verdict underlines that by telling adultery should not be treated as a crime, “it is not to be understood that there can be any kind of social licence that destroys the matrimonial home”(Judgement, 42). It again asserts; “we make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime” (Judgement, 49). Even though it is not a crime, adultery can be ‘a ground for any kind of civil wrong including dissolution of marriage’ (Judgement, 42).

THE IMPACTS AND CONCERNS

Since IPC 497 had gender discrimination, a reformulation of it was inevitable. However, the decriminalisation of adultery seems to foster extra-marital relationship and there is a fear that this new approach will endanger the institution of marriage and the rate of divorce may rise. The court is very particular in telling that the State should not interfere into the privacy of an individual. Does it mean that to protect and preserve the sanctity of the institution of marriage and family is not the responsibility of the State? For the welfare of society and to safeguard the family, it would have better to make the law gender-neutral, criminalising adultery both for husband and the wife.

In any civilised society, the moral fabric of society has an important role apart from the laws and regulations of the constitution. Public conscience, moral order, ethics, values and codes of conduct constitute the core of behaviour in a society. The scope and definition of constitutional morality should not be limited to the provisions of the constitution, rather, it should focus to the ultimate aim of the constitution. In the perspective of Dr B. R. Ambedkar, “constitutional morality means an effective coordination between conflicting interests of different people and the administrative cooperation to resolve the amicably without any confrontation amongst the various groups working for the realisation of their ends at any cost.” The constitutions of different countries are formulated based on many rules, customs, traditions and practises existed in those societies from different times. The radical separation of constitutional morality and societal morality is illogical and outrageous. An over emphasise to individual privacy and rights will lead to individualistic and relativistic ideals wherein morality is interpreted in terms of the whims and fancies of each individual which also may create more confusions and chaos in the society.