Bench:

• Kaleeswaram Raj
• M.S. Suvidutt
• K.K. Venugopal
• B.V. Balaram Das

Issue:

Whether Section 497 of the IPC read with Section 198(2) of the CrPC?

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Facts:

• A writ petition was filed under Article 32 by Joseph Shine challenging the constitutionality of Section 497 of the IPC read with Section 198(2) of CrPC.

• It was stated that the above mentioned was violative of Article 14, 15 and 21 of the Constitution.

• This was at first a PIL filed against adultery.

• The petitioner claimed the provision for adultery to be arbitrary and discriminatory on the basis of gender.

Petitioner's Contentions:

• The counsel for the petitioner contended that the provision criminalizes adultery on classification based on sex alone which has no rational nexus to object to being achieved. The consent of the wife is immaterial. Hence violative of Article 14 of the constitution.

• The provision for adultery is discriminative on the basis of gender as it provides only men with the right to prosecute against adultery which is violative of Article 15.

• The petitioner contended that the provision is unconstitutional as it undermines the dignity of a woman by not respecting her sexual autonomy and self-determination. It is violative of Article 21.

• The petitioner contended that provision is based on the notion that a woman is property of the husband. The provision says if the husband gives consent or connive then adultery is not committed.

Respondent's Contentions:

• The respondents contended that adultery is an offence which breaks the family relations and deterrence should be there to protect the institution of marriage.

• The respondents claim that adultery affects the spouse, children and society as a whole. It is an offence committed by an outsider with full knowledge to destroy the sanctity of marriage.

• The discrimination by the provision is saved by Article 15(3), which provides state right to make special laws for women and children.

Judgement:

The judgement 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.

Relevant Paragraph:

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.