The Supreme Court on Thursday declared as unconstitutional the penal provision on adultery, saying it was manifestly arbitrary and dents the individuality of women.
A five-judge Constitution bench was unanimous in holding Section 497 of the Indian Penal Code, dealing with the offence of adultery, as unconstitutional and struck down the penal provision.
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.”
The offence of adultery entailed a maximum punishment of five years, or with fine, or both.
The bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra held that Section 497 is unconstitutional.
The CJI and Justice Khanwilkar said: “We declare Section 497 IPC and Section 198 of CrPC dealing with the prosecution of offences against marriage as unconstitutional”.
Justice Nariman termed Section 497 as archaic law and concurred with the CJI and Justice Khanwilkar, saying that the penal provision is violative of the rights to equality and equal opportunity to women.
Justice Chandrachud said Section 497 destroys and deprives women of dignity.
Justice Indu Malhotra, the lone woman judge on the bench, said that Section 497 is a clear violation of fundamental rights granted in the Constitution and there is no justification for continuation of the provision.
CJI, who wrote the judgement for himself and Justice Khanwilkar, said adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia.
Adultery might not be a cause of unhappy marriage, it could be the result of an unhappy marriage, the CJI said.
The CJI said unequal treatment of women invites the wrath of the Constitution.
The apex court’s five-judge bench headed by Chief Justice Dipak Misra said the beauty of the Constitution is that it includes “the I, me and you”.
Reading out the judgement, the CJI said that equality is the governing parameter of the Constitution.
The court said any provision treating women with inequality is not constitutional and it’s time to say that husband is not the master of woman.
The CJI said section 497 of the IPC is manifestly arbitrary the way it deals with women.
The bench held that adultery can be treated as civil wrong for dissolution of marriage.
There can’t be any social licence which destroys a home, the CJI said, but added that adultery should not be a criminal offence.
The court said adultery can be a ground for civil wrong, a ground for divorce but not a criminal offence.
Justice Chandrachud said autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of past.
The legislature has imposed a condition on the sexuality of women by making adultery as an offence, he said, adding that section 497 is a denial of substance of equality.
He said Section 497 is held to be unconstitutional as adultery is manifestly arbitrary.