Adultery is defined under Section 497 of the Indian Penal Code. Which states that whoever has sexual intercourse with a person who is and whom he knows and reason to believe to be the wife of another man, without the consent or connivance of that man. Such sexual intercourse does not amount to the offence of rape and is guilty of adultery and shall be punished with imprisonment of either description for a term which may extend to the five years or with fine or both.

In such case the wife shall not be punishable as an abettor. This section came under the purview of court many times and also been discussed but the Supreme Court held it valid. Supreme Court on 27th September 2018 in the case of Joseph Shine v. Union of India has bought down the 158 years old Victorian morality law on adultery. The growth of concept of adultery in these eras are well discussed in the judgment. As discussed in the relic of Victorian morality, this control over the sexual agency of the spouse, views the wife as the property of the husband. Fidelity of the woman, and the husband's control over it, is seen as maintaining the property interest of a husband in his wife.

The petition was filed by a non-resident of Kerala named Joseph Shine who has raised question on the constitutionality of the Section 497 of the Indian Penal Code. The judgment has overruled all the past judgments which upholds the criminalization of adultery. The question arose whether adultery be dealt under crime or not. The court was of the opinion that adultery does not fit in the concept of crime. that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.

Now, adultery has become legal but it is still not ethical with the society. The institution of marriage is based upon the trust between both the parties, i.e., Husband and wife. Therefore, Hon'ble Supreme Court of India did not interfere in the personal and moral lives of the people.

Currently, adultery is only considered as a civil wrong and the remedy for the act of adultery is only divorce.

Background
There were several times before where the question has been arisen on the constitutional validity of Section 497 of Indian Penal Code and Section 198 of Criminal Procedure Code in front of Supreme Court of India. It has been begin with the case of Yusuf Abdul Aziz v. State of Bombay where the husband was accused of adultery under Section 497 of Indian Penal Code.

But when the complaint was filed, the husband went to the Bombay High Court to check the constitutional validity of the provisions under Article 228 of the Constitution of India. The case was decided against the husband and an observation was made by Justice Chagla about the assumption laid down in 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 this offence is only cognizable with the consent of the husband emphasizes 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, we hope, when women were looked upon as property by their husbands.

But that is an argument more in favor of doing away with Section 497 altogether.

A challenge was raised before the court which was only to the restriction on treating a wife as an abettor. This provision was supposed to be violative of Article 14 of the Indian Constitution but the court held that this provision was safeguarded by Article 15(3) of the constitution of India which provides for special provisions for women and children. This history of adultery depicts that section 497 clearly provides that adultery law was always in favor of husband, for him to reserves an ownership over the sexual relationship of his wife.

Therefore, this section was never been in favor to the benefit for the women. This law provides that any person who are engaged in sexual relation with the wife of another man and the husband of that women gives his consent for the same then such an act won't be charged for adultery. This clearly denotes that how women are considered as an object in the hands of their husbands.

There was another case Sowmithri Vishnu v. Union of India, where the challenges were made before the court on the basis of three grounds:

1. Section 497 does not give any right to wife to punish a woman with whom her husband has committed adultery.
2. This section does not give any right to the wife to prosecute her husband for the act of adultery.
3. This section does not cover cases where husband had sexual relations with an unmarried woman.

At first sight, it may appear that this section was for the benefit for the women but on deep examination, it was founded that the provisions are contained which are based on the assumptions that women are like chattels of men. In this case, Chief Justice Chandrachud stated that by definition, the offence of adultery can be committed only by men and not by women. This case fails to deal with the actual problem, i.e., the aspects of constitutional jurisprudence which have bearing on the validity of section 497.

In another case, V Revathi v. Union of India the court held that this section does not permit either the husband of the offending wife to prosecute her nor it wife of the offending husband for being disloyal to her. Therefore, since neither of the spouses can bring a charge against their disloyal nor offending spouses. Hence, this section does not discriminate on the basis of sex.

Facts
Joseph Shine, the hotelier challenged the constitutionality of the section 497 of Indian Penal Code. The core reason behind this petition was to shield Indian men from being punished for extra marital relationships by vengeful women or their husbands. Petitioner's close friend in Kerala committed suicide after a women co-worker made malicious rape charge on him. Further section 497 is an egregious occurrence of sexuality unfairness, authoritative imperialism and male patriotism. The traditional framework in which section 497 was drafted, is no longer applicable in modern society.

Issues

1. Whether section 497 of Indian Penal Code is unconstitutional?
2. The petitioner wanted certain problems with section 497 to be addressed:

Adultery law provides that man to be punished in case of adultery but no action is suggested for the women. Hence, it made the gender neutral.

As per section 497, there is no legal provision that a woman can file a complaint of adultery against her husband.

According to section 497, if the husband gives his consent for such an act then such act is no more considered as a crime. Therefore, women are treated as an object under adultery law.

Judgment
The judgment given by CJI, Deepak Mishra started with the statements proving that wives are not the property of the husbands and husbands are not their masters.

Section 497 disposes off the women from her autonomy, dignity and privacy. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasizing, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III and Privacy of the individual is an essential aspect of dignity.

Section 497 is considered as the wife's encroachment on her right to life and personal liberty by accepting the notion of marriage which overthrows the true equality.

Equality is overthrown by adopting the sanctions of penal code to a gender-based approach to the relationship of man and woman. Sexual autonomy falls within the area of personal liberty under Article 21 of Constitution of India. Trust and respect are two essentials of a marriage. When both the spouses respect each other with equality and dignity then only the respect for sexual autonomy is established.

This section denies the substantive equality as it provides that women are not able to give her free consent for the sexual acts in a legal order which considers them as a sexual property of their spouse. Therefore, section 497 is violative of Article 14 of the Indian Constitution and it also violates the non-discrimination clause of Article 15 of the Constitution of India. This section also lays strong emphasis on the consent of the husband which leads to the subordination of women. Hence, it clearly violates Article 21 of the Constitution of India.

Adultery is no longer be a criminal offence- A crime is committed against the society as a whole whereas adultery is a personal issue. Adultery does not fit into the ambit of crime as it would otherwise invade the extreme privacy sphere of marriage. However, adultery can be considered as a civil wrong and is a valid ground for divorce.

Husband is not the master of his wife- The judgment focuses on the fact that women should not be considered as the property of their husband or father anymore. They have equal status in the society and should be given every opportunity to put their stance forward.

Lord Keith in R v. R declared:
marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.

Lord Denning states:
A wife is no longer her husband's chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern.
In Voluntary Health Association of Punjab v. Union of India, 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.

Section 497 is arbitrary- In the whole of the judgment it was pointed out that nature section 497 is arbitrary. As husband can give his consent to allow his wife to have an affair with some other person. Hence, this section does not protect the 'sanctity of marriage'. This section preserves the proprietary rights of the husband that he has over his wife. This section does not allow the wife to file a petition against her husband. This section does not contain any provision which deals with a married man having an affair with unmarried women.

As a result of all the discussion it was declared that:

1. Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.
2. Section 198(2) of the CrPC. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

Analysis
In the recent case, the Supreme Court of India has struck down the section 497 of Indian Penal Code. The court has restricted the institution of marriage on which strong foundation of Indian society is based. This will lead to the cessation of crimes related to adultery. This verdict leads to the sexual anarchy.

Adultery is no more considered as a civil wrong and adultery can only be a ground for divorce. But the reasons are not so much convincing and hence this cannot become Lex Loci. If adultery is not considered as a crime then divorce on this ground would be an unamending chase. Criminal law is considered as a guardian of the moral principles of the Indian society.

If we start subjecting laws to our personal rationale, it would lead to chaos, as a counter narrative would always exist.

In the State of U.P. v. Deoman Upadhyaya, the Supreme Court founded that:
In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced, it has to be remembered that the legislature has to deal with practical problems. The question is not to be judged by merely enumerating other theoretically possible situations to which the statute may have been, but has not been, applied.

The motive of legislature behind this is to protect the women. Because of this reason, while drafting a new penal code in 1847, the Law Commission mentioned the liability of only male offender. However, it is on the discretion of the legislature to decide what acts comes under the crime and what act does not.

Adultery also affect the children and associated family of the offending spouses and victim spouses. As divorce is the only option left, the children of the offending and victim spouses are left in the lurch. The current judgment does not provide for any remedies for those children who are born out to such adulterous marriage.

Section 497 of Indian Penal Code act as deterrent so that the adulterer does not commit the same crime again. The law fails for its enforcement but it is successful in preventing the adultery. Since India is a semi feudal nation, the adjudication on the notion of western countries is not possible. There are various factors which are concerned with the socio-economic order of the country are needed to be considered.

It was well observed by Justice Frankfurter in Trop vs Dulles:
All power is, in Madison's phrase, of an encroaching nature. Judicial power is not immune from this human weakness. It must always be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint on it is self-restraint. The Court must observe fastidious regard for limitations on its own powers, and thus preclude the Court giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit on the wisdom of Congress or the Executive Branch.

As observed by the Supreme Court in Govt. of Andhra Pradesh v. P Laxmi Devi, Adjudication must be done within the system of historically validated restraints and conscious minimization of the judges preferences , and as held in State of Bihar vs Kameshwar Singh, The legislature is the best judge of what is good for the people by whose suffrage it has come into existence.

The instant consequences will be that the suicide rates in marital relationships will increase now and then prosecution under section 306 relating to abetment of suicide will take place.
It would have been balanced if the section was amended instead of being struck down. The exclusion of women in the provision de-legitimizes the sexuality of women by careful erasure of it.
Instead, section 198 of Code of Criminal Procedure, 1973, should have been struck down as it prevents wives from filing complaints against adultery.

Conclusion
The debate on the law of adultery in India has proceeded in two fixed, un-moving directions: while the court justifies the provisions by implying that women are not fit to be given agency, men's rights activists (vengefully) demand that the provision be reassessed to remove the woman's immunity from prosecution. Both are excessively patriarchal ways of looking at the situation. The reserved judgment has the option of departing from these lines of argumentation and focusing on the main issue: the dis-empowerment of women in criminal law.

It must be kept in mind that the deletion of these provisions does not mean that there are no legal consequences for engaging in adultery. These consequences need not be criminal, and a remedy may be found in civil law, where adultery already has a place. It a ground for divorce in personal laws. Such an approach is also in conformity with the right to privacy and does not require the State to expand its resources.

Cruelty, under section 498A, along with the definition of domestic violence under the Domestic Violence Act, 2005, can cover the mental trauma caused to a woman by a husband's adulterous relationship.

End-Notes:

1. 2018 SC 1676
   
   

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