ADULTERY: NO MORE AN OFFENCE BUT REMAINS A GROUND OF DIVORCE

The Supreme Court in its unanimous judgment of Full Bench titled asJoseph Shine Vs. Union of India WP (Criminal) No. 194 of 2017 has held that Section 497 IPC is unconstitutional as it violates the fundamental right of citizens whereby adultery should not be treated as an offence, Further Supreme Court has declared that Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery also stands as unconstitutional on the basis that when the substantive provision goes, the procedural provision also needs to be repealed from the statute book.

By this Judgment Supreme Court has overruled its earlier Judgment in the case of Yusuf Abdul Aziz Versus State of Bombay AIR 1954 SC 321, Sowmithri Vishnu Versus Union of India and Others AIR 1985 SC 1618,  V. Revathi v. Union of Indiaand others,(1988) 2 SCC 72and any other relevant judgment on the said aspect.

In the case ofYusuf Abdul Aziz Versus State of Bombay AIR 1954 SC 321, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitution of India.The Constitution Bench of this Court took the view that since Section 497 was a special provision for the benefit of women, and Article 15(3) of the Constitution protects the same.

In Sowmithri Vishnu v. Union of India &Anr.AIR 1985 SC 1618., a three-judge bench of this Court had observed that the challenge to the validity of section 497 IPChad no legal basis to be held unconstitutional as it is the man who is the “seducer‟, and not the woman.

Further In V. Revathi v. Union of Indiaand others,(1988) 2 SCC 72 the Court  analysed the provision and held that the said section neither permits the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus it punishes the third person who is a man who intrudes in their marital relationship.

But now the Supreme Court in Joseph Shine Versus Union of IndiaWP (Criminal) No. 194 of 2017 has given the following grounds for repealing section 497 IPC and Section 198 Cr.PC,from the statute book

i. Under Section 497, it is only the male-counterpart who is punishable for the offence of adultery. The woman who is equally guilty with the adulterous male, is not punishable, as offender or even as an “abettor‟.  The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery as such the said provision is against the principle of equality as given under the Constitution of India 1950.

ii. The law as given under section 497 IPC only gives the right to prosecute to the husband of the adulterous wife whereas no such right is given by law to thewife of the adulterous man

iii. Section 497 I.P.C. read with Section 198(2) of the Cr.P.C. only gives power to  the aggrieved husband, of a married wife who has entered into the adulterous relationship to initiate proceedings against the person who has entered in their relationship for the offence of adultery. But the said section does not provide any remedy to the said husband, if the adulterous relationship between a man and a married woman, takes place with his consent and connivance.

iv. Section 497 IPC does not apply where a married man engaged in sexual intercourse with an unmarried or divorced woman,

v. The offence of adultery does not come under the definition of crime and in this SC observed that that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere and further, there is no public element involved in the said offence  and rightly holds that it is better to be left as a ground for divorce.

vi If adultery be treated as Crime it will violate the two aspects of Article 21 of the Constitution, namely, dignity and privacy of parties to the marriage.

vii. Article 15 (3) is to do affirmative act thereby to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as beneficial legislation‟. 

From the aforesaid anomalies and inconsistencies in Section 497 as stated above by the Supreme Court in its judgment, would render the provisions 497 IPC and 198 Cr.PC liable to be struck down on the ground of it being arbitrary and discriminatory.

In my view Supreme Court has rightly upheld that criminal prosecution for the offence may be justified only in those cases where there is involvement of public element in the offence, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole and the State must follow the least possible approach in respect of the criminalization of offences, thereby respect the autonomy or the privacy of the individual to make his/her personal choices. Further,the right to live with dignity includes the right not to be subjected to public criticism and punishment by the State except where it is absolutely necessary. In order to determine what conduct requires State interference through criminal prosecution, the State must consider whether the civil remedy will serve the purpose. In the case of Adultery, civil remedy is available in the form of Divorce to the aggrieved party is sufficient as such there is no need for criminal prosecution for the offence of Adultery, hence, after 158 years of the enactment of IPC, Section 497 and its procedural section i.e. 498 CrPC  are repealed from the law thereby it is no more an offence but only a ground of divorce available to the aggrieved party to the marriage.