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REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

 CRIMINAL ORIGINAL JURISDICTION  

 WRIT PETITION (CRIMINAL) NO. 194 OF 2017  

 Joseph Shine              …Petitioner(s)  

 VERSUS  

Union of India       …Respondent(s)       

J U D G M E N T  

Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.)  

  The beauty of the Indian Constitution is that it includes ‗I‘  

‗you‘ and ‗we‘. Such a magnificent, compassionate and  

monumental document embodies emphatic inclusiveness which  

has been further nurtured by judicial sensitivity when it has  

developed the concept of golden triangle of fundamental rights. If  

we have to apply the parameters of a fundamental right, it is an  

expression of judicial sensibility which further enhances the  

beauty of the Constitution as conceived of. In such a situation,  

the essentiality of the rights of women gets the real requisite  

space in the living room of individual dignity rather than the

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space in an annexe to the main building. That is the  

manifestation of concerned sensitivity. Individual dignity has a  

sanctified realm in a civilized society. The civility of a civilization  

earns warmth and respect when it respects more the  

individuality of a woman. The said concept gets a further accent  

when a woman is treated with the real spirit of equality with a  

man. Any system treating a woman with indignity, inequity and  

inequality or discrimination invites the wrath of the Constitution.  

Any provision that might have, few decades back, got the stamp  

of serene approval may have to meet its epitaph with the efflux of  

time and growing constitutional precepts and progressive  

perception.  A woman cannot be asked to think as a man or as  

how the society desires. Such a thought is abominable, for it  

slaughters her core identity.  And, it is time to say that a  

husband is not the master.  Equality is the governing parameter.  

All historical perceptions should evaporate and their obituaries  

be written. It is advisable to remember what John Stuart Mill had  

observed:-  

―The legal subordination of one sex to another –  is wrong in itself, and now one of the chief  hindrances to human improvement; and that it  ought to be replaced by a system of perfect

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equality, admitting no power and privilege on  the one side, nor disability on the other.‖1    

 We are commencing with the aforesaid prefatory note as we  

are adverting to the constitutional validity of Section 497 of the  

Indian Penal Code (IPC) and Section 198 of the Code of Criminal  

Procedure (CrPC).    

2. At this juncture, it is necessary to state that though there is  

necessity of certainty of law, yet with the societal changes and  

more so, when the rights are expanded by the Court in respect of  

certain aspects having regard to the reflective perception of the  

organic and living Constitution, it is not apposite to have an  

inflexible stand on the foundation that the concept of certainty of  

law should be allowed to prevail and govern. The progression in  

law and the perceptual shift compels the present to have a  

penetrating look to the past.  

3. When we say so, we may not be understood that precedents  

are not to be treated as such and that in the excuse of perceptual  

shift, the binding nature of precedent should not be allowed to  

retain its status or allowed to be diluted.  When a constitutional  

court faces such a challenge, namely, to be detained by a  

precedent or to grow out of the same because of the normative  

                                                                 1  On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869)

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changes that have occurred in the other arenas of law and the  

obtaining precedent does not cohesively fit into the same, the  

concept of cohesive adjustment has to be in accord with the  

growing legal interpretation and the analysis has to be different,  

more so, where the emerging concept recognises a particular  

right to be planted in the compartment of a fundamental right,  

such as Articles 14 and 21 of the Constitution.  In such a  

backdrop, when the constitutionality of a provision is assailed,  

the Court is compelled to have a keen scrutiny of the provision in  

the context of developed and progressive interpretation.   A  

constitutional court cannot remain entrenched in a precedent,  

for the controversy relates to the lives of human beings who  

transcendentally grow.  It can be announced with certitude that  

transformative constitutionalism asserts itself every moment and  

asserts itself to have its space.  It is abhorrent to any kind of  

regressive approach.  The whole thing can be viewed from  

another perspective. What might be acceptable at one point of  

time  may melt into total insignificance at another point of time.   

However, it is worthy to note that the change perceived should  

not be in a sphere of fancy or individual fascination, but should  

be founded on the solid bedrock of change that the society has

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perceived, the spheres in which the legislature has responded  

and the rights that have been accentuated by the constitutional  

courts.  To explicate, despite conferring many a right on women  

within the parameters of progressive jurisprudence and  

expansive constitutional vision, the Court cannot conceive of  

women still being treated as a property of men, and secondly,  

where the delicate relationship between a husband and wife does  

not remain so, it is seemingly implausible to allow a criminal  

offence to enter and make a third party culpable.      

4. We may presently state the nature of the lis.  

5. The instant writ petition has been filed under Article 32 of  

the Constitution of India challenging the validity of Section 497  

IPC. A three-Judge Bench, on the first occasion, taking note of  

the authorities in Yusuf Abdul Aziz v. State of Bombay2,  

Sowmithri Vishnu v.  Union of India and another3, V.  

Revathi v. Union of India and others4 and W. Kalyani v.  

State through Inspector of Police and another5 and  

appreciating the submissions advanced by the learned counsel  

for the petitioner, felt the necessity to have a re-look at the  

                                                                 2  1954 SCR 930 : AIR 1954 SC 321  

3  (1985)Supp SCC 137 : AIR 1985 SC 1618  

4  (1988)2 SCC 72  

5  (2012) 1 SCC 358

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constitutionality of the provision. At that juncture, the Court  

noted that:-  

“Prima facie, on a perusal of Section 497 of  the Indian Penal Code, we find that it grants  relief to the wife by treating her as a victim.  It is also worthy to note that when an  offence is committed by both of them, one is  liable for the criminal offence but the other  is absolved. It seems to be based on a  societal presumption. Ordinarily, the  criminal law proceeds on gender neutrality  but in this provision, as we perceive, the  said concept is absent. That apart, it is to be  seen when there is conferment of any  affirmative right on women, can it go to the  extent of treating them as the victim, in all  circumstances, to the peril of the husband.  Quite apart from that, it is perceivable from  the language employed in the Section that  the fulcrum of the offence is destroyed once  the consent or the connivance of the  husband is established. Viewed from the  said scenario, the provision really creates a  dent on the individual independent identity  of a woman when the emphasis is laid on  the connivance or the consent of the  husband. This tantamounts to  subordination of a woman where the  Constitution confers equal status. A time  has come when the society must realise that  a woman is equal to a man in every field.  

This provision,  prima facie, appears to be  quite archaic. When the society progresses  and the rights are conferred, the new  generation of thoughts spring, and that is  why, we are inclined to issue notice.‖   

   That is how the matter has been placed before us.

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6. At this stage, one aspect needs to be noted. At the time of  

initial hearing before the three-Judge Bench, the decision in  

Yusuf Abdul Aziz (supra) was cited and the cited Law Report  

reflected that the judgment was delivered by four learned Judges  

and later on, it was noticed, as is reflectible from the Supreme  

Court Reports, that the decision was rendered by a Constitution  

Bench comprising of five Judges of this Court.   

7. The said factual discovery will not detain us any further. In  

Yusuf Abdul Aziz (supra), the Court was dealing with the  

controversy that had travelled to this Court while dealing with a  

different fact situation. In the said case, the question arose  

whether Section 497 contravened Articles 14 and 15 of the  

Constitution of India. In the said case, the appellant was being  

prosecuted for adultery under Section 497 IPC. As soon as the  

complaint was filed, the husband applied to the High Court of  

Bombay to determine the constitutional question under Article  

228 of the Constitution. The Constitution Bench referring to  

Section 497 held thus:-  

―3. Under Section 497 the offence of  adultery can only be committed by a man  but in the absence of any provision to the  contrary the woman would be punishable as  an abettor. The last sentence in Section 497  prohibits this. It runs—

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―In such case the wife shall not be  punishable as an abettor.‖ It is said that  this offends Articles 14 and 15.  

The portion of Article 15 on which the  appellant relies is this:  

―The State shall not discriminate against  any citizen on grounds only of ... sex.‖  

But what he overlooks is that that is subject  to clause (3) which runs—  

―Nothing in this article shall prevent the  State from making any special provision for  women ....‖  

The provision complained of is a special  provision and it is made for women,  therefore it is saved by clause (3).  

4. It was argued that clause (3) should be  confined to provisions which are beneficial  to women and cannot be used to give them  a licence to commit and abet crimes. We are  unable to read any such restriction into the  clause; nor are we able to agree that a  provision which prohibits punishment is  tantamount to a licence to commit the  offence of which punishment has been  prohibited.  

5. Article 14 is general and must be read  with the other provisions which set out the  ambit of fundamental rights. Sex is a sound  classification and although there can be no  discrimination in general on that ground,  the Constitution itself provides for special  provisions in the case of women and  children. The two articles read together  validate the impugned clause in Section 497  of the Indian Penal Code.

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6. The appellant is not a citizen of India. It  was argued that he could not invoke Articles  14 and 15 for that reason. The High Court  held otherwise. It is not necessary for us to  decide this question in view of our decision  on the other issue.‖  

  On a reading of the aforesaid passages, it is manifest that  

the Court treated the provision to be a special provision made for  

women and, therefore, saved by clause (3) of Article 15. Thus, the  

Court proceeded on the foundation of affirmative action.   

8. In this context, we may refer to the observation made by the    

Constitution Bench in Central Board of Dawoodi Bohra  

Community and another v. State of Maharashtra and  

another6 while making a reference to a larger Bench. The said  

order reads thus:-  

―12. Having carefully considered the  submissions made by the learned Senior  Counsel for the parties and having  examined the law laid down by the  Constitution Benches in the above said  decisions, we would like to sum up the legal  position in the following terms:  

(1) The law laid down by this Court in a  decision delivered by a Bench of larger  strength is binding on any subsequent  Bench of lesser or coequal strength.  

(2) A Bench of lesser quorum cannot  disagree or dissent from the view of the law  taken by a Bench of larger quorum. In case  

                                                                 6  (2005) 2 SCC 673

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of doubt all that the Bench of lesser quorum  can do is to invite the attention of the Chief  Justice and request for the matter being  placed for hearing before a Bench of larger  quorum than the Bench whose decision has  come up for consideration. It will be open  only for a Bench of coequal strength to  express an opinion doubting the correctness  of the view taken by the earlier Bench of  coequal strength, whereupon the matter  may be placed for hearing before a Bench  consisting of a quorum larger than the one  which pronounced the decision laying down  the law the correctness of which is doubted.  

(3)The above rules are subject to two  exceptions: (i) the abovesaid rules do not  bind the discretion of the Chief Justice in  whom vests the power of framing the roster  and who can direct any particular matter to  be placed for hearing before any particular  

Bench of any strength; and (ii) in spite of the  rules laid down hereinabove, if the matter  has already come up for hearing before a  Bench of larger quorum and that Bench  itself feels that the view of the law taken by  a Bench of lesser quorum, which view is in  doubt, needs correction or reconsideration  then by way of exception (and not as a rule)  and for reasons given by it, it may proceed  to hear the case and examine the  correctness of the previous decision in  question dispensing with the need of a  specific reference or the order of the Chief  Justice constituting the Bench and such  

listing. Such was the situation in Raghubir  Singh7 and Hansoli Devi8.‖  

                                                                 7  Union of India and Anr. v. Raghubir Singh (dead) by Lrs. etc., (1989) 2 SCC 754  

8 Union of India & Anr. v. Hansoli Devi & Ors., (2002) 7 SCC 273

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In the light of the aforesaid order, it was necessary to list  

the matter before a Constitution Bench consisting of five Judges.   

As noted earlier, considering the manner in which we intend to  

deal with the matter, it is not necessary to refer to a larger  

Bench.   

9.  Sections 497 and 498 of IPC read thus:-  

―Section 497 : Adultery  

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.  

Section 498 : Enticing or taking away or  detaining with criminal intent a married  

woman  

Whoever takes or entices away any woman  who is and whom he knows or has reason to  believe to be the wife of any other man, from  that man, or from any person having the  care of her on behalf of that man, with  intent that she may have illicit intercourse  with any person, or conceals or detains with  that intent any such woman, shall be  punished with imprisonment of either  description for a term which may extend to  two years, or with fine, or with both.‖   

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10. Section 198 of CrPC provides for prosecution for offences  

against marriage. Section 198 is reproduced below:-  

―198. Prosecution for offences against  marriage.—(1) No Court shall take  cognizance of an offence punishable under  Chapter XX of the Indian Penal Code (45 of  1860) except upon a complaint made by  some person aggrieved by the offence:  Provided that-  

(a) Where such person is under the age of  eighteen years or is an idiot or a lunatic, or  is from sickness or infirmity unable to make  a complaint, or is a woman who, according  to the local customs and manners, ought  not to be compelled to appear in public,  some other person may, with the leave of  the Court, make a complaint on his or her  behalf;  

(b) where such person is the husband and  he is serving in any of the Armed Forces of  the Union under conditions which are  certified by his Commanding Officer as  precluding him from obtaining leave of  absence to enable him to make a complaint  in person, some other person authorised by  the husband in accordance with the  provisions of sub- section (4) may make a  complaint on his behalf;  

(c) where the person aggrieved by an offence  punishable under section 494 or section  495 of the Indian Penal Code (45 of 1860 ) is  the wife, complaint may be made on her  behalf by her father, mother, brother, sister,  son or daughter or by her father' s or  mother' s brother or sister 2, or, with the  leave of the Court, by any other person

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(5) Any document purporting to be such an  authorisation and complying with the  provisions of sub-section (4), and any  document purporting to be a certificate  required by that sub-section shall, unless  the contrary is proved, be presumed to be  genuine and shall be received in evidence.   

(6) No Court shall take cognizance of an  offence under section 376 of the Indian  Penal Code (45 of 1860), where such offence  consists of sexual intercourse by a man with  his own wife, the wife being under 3  [eighteen years of age], if more than one  year has elapsed from the date of the  commission of the offence.   

(7) The provisions of this section apply to  the abetment of, or attempt to commit, an  offence as they apply to the offence.‖    

11. On a perusal of the aforesaid provision, it is clear that the  

husband of the woman has been treated to be a person aggrieved  

for the offences punishable under Sections 497 and 498 of the  

IPC. The rest of the proviso carves out an exception as to who is  

entitled to file a complaint when the husband is absent. It may  

be noted that the offence is non-cognizable.   

12. The three-Judge Bench, while referring the matter, had  

briefly dwelled upon the impact of the provision. To appreciate  

the constitutional validity, first, we shall deal with the earlier  

pronouncements and the principles enunciated therein and how  

we can have a different perspective of such provisions.  We have

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already referred to what has been stated in Yusuf Abdul Aziz  

(supra).  

13. In Sowmithri Vishnu (supra), a petition preferred under  

Article 32 of the Constitution challenged the validity of Section  

497 IPC. We do not intend to advert to the factual matrix. It was  

contended before the three-Judge Bench that Section 497 confers  

upon the husband the right to prosecute the adulterer but it does  

not confer any right upon the wife to prosecute the woman with  

whom her husband has committed adultery; that Section 497  

does not confer any right on the wife to prosecute the husband  

who has committed adultery with another woman; and that   

Section 497 does not take in cases where the husband has  

sexual relations with an unmarried woman with the result that  

husbands have a free licence under the law to have extramarital  

relationships with unmarried women. That apart, the submission  

was advanced that Section 497 is a flagrant instance of ‗gender  

discrimination‘, ‗legislative despotism‘ and ‗male chauvinism‘.   At  

first blush, it may appear as if it is a beneficial legislation  

intended to serve the interests of women but, on closer  

examination, it would be found that the provision contained in  

the section is a kind of ―romantic paternalism‖ which stems from

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the assumption that women, like chattels, are the property of  

men.  

14. The Court referred to the submissions and held thus:-    

―…..The argument really comes to this that  the definition should be recast by extending  the ambit of the offence of adultery so that,  both the man and the woman should be  punishable for the offence of adultery. Were  such an argument permissible, several  provisions of the penal law may have to be  struck down on the ground that, either in  their definition or in their prescription of  punishment, they do not go far enough. For  example, an argument could be advanced as  to why the offence of robbery should be  punishable with imprisonment for ten years  under Section 392 of the Penal Code but the  offence of adultery should be punishable  with a sentence of five years only: ―Breaking  a matrimonial home is no less serious a  crime than breaking open a house.‖ Such  arguments go to the policy of the law, not to  its constitutionality, unless, while  implementing the policy, any provision of  the Constitution is infringed. We cannot  accept that in defining the offence of  adultery so as to restrict the class of  offenders to men, any constitutional  provision is infringed. It is commonly  accepted that it is the man who is the  seducer and not the woman. This position  may have undergone some change over the  years but it is for the Legislature to consider  whether Section 497 should be amended  appropriately so as to take note of the  ―transformation‖ which the society has  undergone….‖  

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Proceeding further, the three-Judge Bench held that the  

offence of adultery as defined in that Section can only be  

committed by a man, not by a woman. Indeed, the Section  

expressly provides that the wife shall not be punishable even as  

an abettor. No grievance can then be made that the Section does  

not allow the wife to prosecute the husband for adultery. The  

contemplation of the law, evidently, is that the wife, who is  

involved in an illicit relationship with another man, is a victim  

and not the author of the crime. The offence of adultery, as  

defined in Section 497, is considered by the Legislature as an  

offence against the sanctity of the matrimonial home, an act  

which is committed by a man, as it generally is. Therefore, those  

men who defile that sanctity are brought within the net of the  

law. In a sense, the same point is reverted to; who can prosecute  

whom for which offence depends, firstly, on the definition of the  

offence and, secondly, upon the restrictions placed by the law of  

procedure on the right to prosecute.  

15. The Court further held:-  

―…..Since Section 497 does not contain a  provision that she must be impleaded as a  necessary party to the prosecution or that  she would be entitled to be heard, the  section is said to be bad. Counsel is right  that Section 497 does not contain a

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provision for hearing the married woman  with whom the accused is alleged to have  committed adultery. But, that does not  justify the proposition that she is not  entitled to be heard at the trial. We have no  doubt that if the wife makes an application  in the trial court that she should be heard  before a finding is recorded on the question  of adultery, the application would receive  due consideration from the court. There is  nothing, either in the substantive or the  adjectival criminal law, which bars the court  from affording a hearing to a party, which is  likely to be adversely affected, directly and  immediately, by the decision of the court. In  fact, instances are not unknown in criminal  law where, though the prosecution is in the  charge of the Public Prosecutor, the private  complainant is given permission to oversee  the proceedings. One step more, and the  wife could be allowed a hearing before an  adverse finding is recorded that, as alleged  by her husband, the accused had  committed adultery with her. The right of  hearing is a concomitant of the principles of  natural justice, though not in all situations.  That right can be read into the law in  appropriate cases. Therefore, the fact that a  provision for hearing the wife is not  contained in Section 497 cannot render that  section unconstitutional as violating Article  21.‖  

  After so stating, the Court placed reliance on Yusuf Abdul  

Aziz (supra) and held that the same does not offend Articles 14  

and 15 of the Constitution and opined that the stability of  

marriages is not an ideal to be scorned.  Being of this view, the  

Court dismissed the petition.

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16. In V. Revathi v. Union of India and others9, the Court  

analysed the design of the provision and ruled:-  

―…..Thus the law permits neither 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 both the husband and  the wife are disabled from striking each  other with the weapon of criminal law. The  petitioner wife contends that whether or not  the law permits a husband to prosecute his  disloyal wife, the wife cannot be lawfully  disabled from prosecuting her disloyal  husband…..‖  

  It placed heavy reliance on the three-Judge Bench in  

Sowmithri Vishnu (supra) and proceeded to state that the  

community punishes the ‗outsider‘ who breaks into the  

matrimonial home and occasions the violation of sanctity of the  

matrimonial tie by developing an illicit relationship with one of  

the spouses subject to the rider that the erring ‗man‘ alone can  

be punished and not the erring woman. It further went on to say  

that it does not arm the two spouses to hit each other with the  

weapon of criminal law. That is why, neither the husband can  

prosecute the wife and send her to jail nor can the wife prosecute  

the husband and send him to jail. There is no discrimination  

                                                                 9  (1988) 2 SCC 72

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based on sex. While the outsider who violates the sanctity of the  

matrimonial home is punished, a rider has been added that if the  

outsider is a woman, she is not punished. There is, thus, reverse  

discrimination in ―favour‖ of the woman rather than ―against‖  

her. The law does not envisage the punishment of any of the  

spouses at the instance of each other. Thus, there is no  

discrimination against the woman insofar as she is not permitted  

to prosecute her husband. A husband is not permitted because  

the wife is not treated as an offender in the eye of law. The wife is  

not permitted as Section 198(1) read with Section 198(2) does not  

permit her to do so. In the ultimate analysis, the law has meted  

out even-handed justice to both of them in the matter of  

prosecuting each other or securing the incarceration of each  

other. Thus, no discrimination has been practised in  

circumscribing the scope of Section 198(2) CrPC and fashioning  

it in such a manner that the right to prosecute the adulterer is  

restricted to the husband of the adulteress but has not been  

extended to the wife of the adulterer. Expressing this view, the  

Court held that the provision is not vulnerable to the charge of  

hostile discrimination.  

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17. In W. Kalyani v. State Thro’ Inspector of Police and  

another10, the Court held:-  

―10. The provision is currently under  criticism from certain quarters for showing  a strong gender bias for it makes the  position of a married woman almost as a  property of her husband. But in terms of the  law as it stands, it is evident from a plain  reading of the section that only a man can  be proceeded against and punished for the  offence of adultery. Indeed, the section  provides expressly that the wife cannot be  punished even as an abettor. Thus, the  mere fact that the appellant is a woman  makes her completely immune to the charge  of adultery and she cannot be proceeded  against for that offence.‖  

  Be it noted, the issue of constitutional validity did not arise  

in the said case.   

18. At this juncture, we think it seemly to state that we are only  

going to deal with the constitutional validity of Section 497 IPC  

and Section 198 CrPC.  The learned counsel for the petitioner  

submits that the provision by its very nature is arbitrary and  

invites the frown of Article 14 of the Constitution.  In Shayara  

Bano v. Union of India and others11, the majority speaking  

through Nariman, J., ruled thus :-  

                                                                 10

(2012) 1 SCC 358  11

(2017) 9 SCC 1   

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―60. Hard as we tried, it is difficult to  discover any ratio in this judgment, as one  part of the judgment contradicts another  part. If one particular statutory enactment  is already under challenge, there is no  reason why other similar enactments which  were also challenged should not have been  disposed of by this Court. Quite apart from  the above, it is a little difficult to appreciate  such declination in the light of Prem Chand  Garg (supra). This judgment, therefore, to  the extent that it is contrary to at least two  Constitution 346 Bench decisions cannot  

possibly be said to be good law.  

61. It is at this point that it is necessary to  see whether a fundamental right has been  violated by the 1937 Act insofar as it seeks  to enforce Triple Talaq as a rule of law in the  

Courts in India.  

62. Article 14 of the Constitution of India is  a facet of equality of status and opportunity  spoken of in the Preamble to the  Constitution. The Article naturally divides  itself into two parts- (1) equality before the  law, and (2) the equal protection of the law.  Judgments of this Court have referred to the  fact that the equality before law concept has  been derived from the law in the U.K., and  the equal protection of the laws has been  borrowed from the 14th Amendment to the  Constitution of the United States of  America. In a revealing judgment, Subba  Rao, J., dissenting, in State of U.P. v.  Deoman Upadhyaya, (1961) 1 SCR 14 at 34  further went on to state that whereas  equality before law is a negative concept, the  equal protection of the law has positive  content. The early judgments of this Court  referred to the ―discrimination‖ aspect of  Article 14, and evolved a rule by which  subjects could be classified. If 347 the

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classification was ―intelligible‖ having regard  to the object sought to be achieved, it would  pass muster under Article 14‘s anti- discrimination aspect. Again, Subba Rao, J.,  dissenting, in Lachhman Das v. State of  Punjab, (1963) 2 SCR 353 at 395, warned  

that:  

―50......Overemphasis on the doctrine  of classification or an anxious and  sustained attempt to discover some  basis for classification may gradually  and imperceptibly deprive the Article of  

its glorious content.‖   

He referred to the doctrine of classification  as a ―subsidiary rule‖ evolved by courts to  

give practical content to the said Article.   

63. In the pre-1974 era, the judgments of  this Court did refer to the ―rule of law‖ or  ―positive‖ aspect of Article 14, the  concomitant of which is that if an action is  found to be arbitrary and, therefore,  unreasonable, it would negate the equal  protection of the law contained in Article 14  and would be struck down on this ground.  In S.G. Jaisinghani v. Union of India, (1967)  2 SCR 703, this Court held:  

 ―In this context it is important to  emphasize that the absence of  arbitrary power is the first essential of  the rule of law upon which our whole  constitutional system is based. In a  system governed by rule of law, 348  discretion, when conferred upon  executive authorities, must be confined  within clearly defined limits. The rule  of law from this point of view means  that decisions should be made by the  application of known principles and  rules and, in general, such decisions

24    

should be predictable and the citizen  should know where he is. If a decision  is taken without any principle or  without any rule it is unpredictable  and such a decision is the antithesis of  a decision taken in accordance with  the rule of law. (See Dicey — ―Law of  the Constitution‖ — 10th Edn.,  Introduction cx). ―Law has reached its  finest moments‖, stated Douglas, J. in  United States v. Wunderlick [342 US  98],     

―9.....when it has freed man from the  unlimited discretion of some ruler….  Where discretion, is absolute, man has  always suffered‖. It is in this sense  that the rule of law may be said to be  the sworn enemy of caprice.  Discretion, as Lord Mansfield stated it  in classic terms in the case of John  

Wilkes [(1770) 4 Burr. 2528 at 2539],   

―.....means sound discretion  guided by law. It must be  governed by rule, not by humour  : it must not be arbitrary, vague,  

and fanciful......‖.‖   

This was in the context of service rules  being seniority rules, which applied to the  Income Tax Department, being held to be  violative of Article 14 of the Constitution of  India.‖  

19. Thereafter, our learned brother referred to the authorities in  

State of Mysore v. S.R. Jayaram12, Indira Nehru Gandhi v.  

Raj Narain13, E.P. Royappa v. State of Tamil Nadu14, Maneka  

                                                                 12

(1968) 1 SCR 349  13

(1975) Supp SCC 1

25    

Gandhi v. Union of India15, A.L. Kalra v. Project and  

Equipment Corporation of India Ltd.16, Ajay Hasia v. Khalid  

Mujib Sehravardi17, K.R. Lakshmanan v. State of T.N.18 and  

two other Constitution Bench judgments in Mithu v. State of  

Punjab19 and Sunil Batra v. Delhi Administration20 and,  

eventually, came to hold thus:-  

―It is, therefore, clear from a reading of even  the aforesaid two Constitution Bench  judgments that Article 14 has been referred  to in the context of the constitutional  invalidity of statutory law to show that such  statutory law will be struck down if it is  found to be ―arbitrary‖.‖    

And again:-  

―.....The test of manifest arbitrariness,  therefore, as laid down in the aforesaid  judgments would apply to invalidate  legislation as well as subordinate legislation  under Article 14. Manifest arbitrariness,  therefore, must be something done by the  legislature capriciously, irrationally and/or  without adequate determining principle.  Also, when something is done which is  excessive and disproportionate, such  legislation would be manifestly arbitrary. We  are, therefore, of the view that arbitrariness  in the sense of manifest arbitrariness as  

                                                                                                                                                                                                       14

(1974) 4 SCC 3  15

(1978) 1 SCC 248  16

(1984) 3 SCC 316  17

(1981) 1 SCC 722  18

(1996) 2 SCC 226  19

(1983) 2 SCC 277  20

(1978) 4 SCC 494

26    

pointed out by us above would apply to  negate legislation as well under Article 14.‖  

20. We respectfully concur with the said view.  

21. In Yusuf Abdul Aziz (supra), the Court understood the  

protection of women as not discriminatory but as being an  

affirmative provision under clause (3) of Article 15 of the  

Constitution.  We intend to take the path of expanded horizon as  

gender justice has been expanded by this Court.  

22. We may now proceed to test the provision on the touchstone  

of the aforesaid principles. On a reading of the provision, it is  

demonstrable that women are treated as subordinate to men  

inasmuch as it lays down that when there is connivance or  

consent of the man, there is no offence.  This treats the woman  

as a chattel.  It treats her as the property of man and totally  

subservient to the will of the master.  It is a reflection of the  

social dominance that was prevalent when the penal provision  

was drafted.     

23. As we notice, the provision treats a married woman as a  

property of the husband. It is interesting to note that Section 497  

IPC does not bring within its purview an extra marital  

relationship with an unmarried woman or a widow.  The  

dictionary meaning of ―adultery‖ is that a married person

27    

commits adultery if he has sex with a woman with whom he has  

not entered into wedlock.  As per Black‘s Law Dictionary,  

‗adultery‘ is the voluntary sexual intercourse of a married person  

with a person other than the offender‘s husband or wife.  

However, the provision has made it a restricted one as a  

consequence of which a man, in certain situations, becomes  

criminally liable for having committed adultery while, in other  

situations, he cannot be branded as a person who has committed  

adultery so as to invite the culpability of Section 497 IPC.   

Section 198 CrPC deals with a ―person aggrieved‖. Sub-section  

(2) of Section 198 treats the husband of the woman as deemed to  

be aggrieved by an offence committed under Section 497 IPC and  

in the absence of husband, some person who had care of the  

woman on his behalf at the time when such offence was  

committed with the leave of the court. It does not consider the  

wife of the adulterer as an aggrieved person.  The offence and the  

deeming definition of an aggrieved person, as we find, is  

absolutely and manifestly arbitrary as it does not even appear to  

be rational and it can be stated with emphasis that it confers a  

licence on the husband to deal with the wife as he likes which is  

extremely excessive and disproportionate. We are constrained to

28    

think so, as it does not treat a woman as an abettor but protects  

a woman and simultaneously, it does not enable the wife to file  

any criminal prosecution against the husband.  Indubitably, she  

can take civil action but the husband is also entitled to take civil  

action. However, that does not save the provision as being  

manifestly arbitrary. That is one aspect of the matter. If the  

entire provision is scanned being Argus-eyed, we notice that on  

the one hand, it protects a woman and on the other, it does not  

protect the other woman.  The rationale of the provision suffers  

from the absence of logicality of approach and, therefore, we have  

no hesitation in saying that it suffers from the vice of Article 14  

of the Constitution being manifestly arbitrary.    

24. Presently, we shall address the issue against the backdrop  

of Article 21 of the Constitution.  For the said purpose, it is  

necessary to devote some space with regard to the dignity of  

women and the concept of gender equality.    

25. In Arun Kumar Agrawal and another v. National  

Insurance Company Limited and others21, the issue related to  

the criteria for determination of compensation payable to the  

dependents of a woman who died in road accident.  She did not  

                                                                 21

(2010) 9 SCC 218

29    

have a regular income. Singhvi, J. rejected the stand relating to  

determination of compensation by comparing a house wife to that  

of a house keeper or a servant or an employee who works for a  

fixed period. The learned Judge thought it unjust, unfair and  

inappropriate. In that context, the learned Judge stated:-   

―26. In India the courts have recognised that  the contribution made by the wife to the  house is invaluable and cannot be  computed in terms of money. The gratuitous  services rendered by the wife with true love  and affection to the children and her  husband and managing the household  affairs cannot be equated with the services  rendered by others. A wife/mother does not  work by the clock. She is in the constant  attendance of the family throughout the day  and night unless she is employed and is  required to attend the employer‘s work for  particular hours. She takes care of all the  requirements of the husband and children  including cooking of food, washing of  clothes, etc. She teaches small children and  provides invaluable guidance to them for  their future life. A housekeeper or  maidservant can do the household work,  such as cooking food, washing clothes and  utensils, keeping the house clean, etc., but  she can never be a substitute for a  wife/mother who renders selfless service to  her husband and children.‖  

 26. Ganguly, J., in his concurring opinion, referred to the  

Australian Family Property Law  and opined that the said law

30    

had adopted a very gender sensitive approach.  The learned  

Judge reproduced:-    

―the contribution made by a party to the  marriage to the welfare of the family  constituted by the parties to the marriage  and any children of the marriage, including  any contribution made in the capacity of a  homemaker or parent.‖  

  27.  In State of Madhya Pradesh v. Madanlal22, the Court  

held:-  

―Dignity of a woman is a part of her non- perishable and immortal self and no one  should ever think of painting it in clay.  There cannot be a compromise or settlement  as it would be against her honour which  matters the most. It is sacrosanct.  Sometimes solace is given that the  perpetrator of the crime has acceded to  enter into wedlock with her which is nothing  but putting pressure in an adroit manner;  and we say with emphasis that the Courts  are to remain absolutely away from this  subterfuge to adopt a soft approach to the  case, for any kind of liberal approach has to  be put in the compartment of spectacular  error. Or to put it differently, it would be in  the realm of a sanctuary of error.‖    

28. In Pawan Kumar v. State of Himachal Pradesh23, the  

Court, dealing with the concept of equality and dignity of a  

woman, observed:-  

                                                                 22

(2015) 7 SCC 681  23

(2017) 7 SCC 780

32    

to be regarded as the summum bonum of  the constitutional principle in this context.‖    

29. Lord Keith in R v. R24 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.‖  

30. Lord Denning25 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.‖    

31. In Shamima Farooqui v. Shahid Khan26, the Court  

ruled:-  

―Chivalry, a perverse sense of human  egotism, and clutching of feudal  megalomaniac ideas or for that matter, any  kind of condescending attitude have no  room. They are bound to be sent to the  ancient woods, and in the new horizon  people should proclaim their own ideas and  authority.‖    

   And again:-  

―Any other idea floated or any song sung in  the invocation of male chauvinism is the  proposition of an alien, a total stranger - an  outsider. That is the truth in essentiality.‖  

                                                                 24

[1991] 4 All ER 481 at p. 484  25

The Due Process of Law (London, Butterworths, 1980, at page 212)  26

(2015) 5 SCC 705

33    

32. In Voluntary Health Association of Punjab v. Union of  

India27, 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.  The issue related to female foeticide and it was  

stated thus:-  

―21. When a female foeticide takes place,  every woman who mothers the child must  remember that she is killing her own child  despite being a mother. That is what  abortion would mean in social terms.  Abortion of a female child in its conceptual  eventuality leads to killing of a woman. Law  prohibits it; scriptures forbid it; philosophy  condemns it; ethics deprecate it, morality  decries it and social science abhors it.  Henrik Ibsen emphasised on the  individualism of woman. John Milton  treated her to be the best of all God‘s work.  In this context, it will be appropriate to  

quote a few lines from Democracy in America  by Alexis de Tocqueville:  

―If I were asked … to what the singular  prosperity and growing strength of that  people [Americans] ought mainly to be  attributed, I should reply: To the superiority  of their women.‖  

22. At this stage, I may with profit  

reproduce two paragraphs from Ajit Savant  

                                                                 27

(2013) 4 SCC 1

34    

Majagvai v. State of Karnataka28: (SCC pp.  113-14, paras 3 & 4)     

―3. Social thinkers, philosophers,  dramatists, poets and writers have  eulogised the female species of the human  race and have always used beautiful  epithets to describe her temperament and  personality and have not deviated from that  path even while speaking of her odd  behaviour, at times. Even in sarcasm, they  have not crossed the literary limit and have  adhered to a particular standard of nobility  of language. Even when a member of her  own species, Madame De Stael, remarked ‗I  am glad that I am not a man; for then I  should have to marry a woman‘, there was  wit in it. When Shakespeare wrote, ‗Age  cannot wither her; nor custom stale, her  infinite variety‘, there again was wit.  Notwithstanding that these writers have  cried hoarse for respect for ‗woman‘,  notwithstanding that Schiller said ‗Honour  women! They entwine and weave heavenly  roses in our earthly life‘ and  notwithstanding that the Mahabharata  mentioned her as the source of salvation,  crime against ‗woman‘ continues to rise and  has, today undoubtedly, risen to alarming  proportions.  

4. It is unfortunate that in an age where  people are described as civilised, crime  against „female‟ is committed even when the  child is in the womb as the „female‟ foetus is  often destroyed to prevent the birth of a  female child. If that child comes into  existence, she starts her life as a daughter,  then becomes a wife and in due course, a  mother. She rocks the cradle to rear up her  

                                                                 28

(1997) 7 SCC 110

35    

infant, bestows all her love on the child and  as the child grows in age, she gives to the  child all that she has in her own personality.  She shapes the destiny and character of the  child. To be cruel to such a creature is  unthinkable. To torment a wife can only be  described as the most hated and derisive act  of a human being.‖  

[Emphasis supplied]  

And again:-     

―23. In Madhu Kishwar v. State of Bihar29  this Court had stated that Indian women  have suffered and are suffering  discrimination in silence.  

―28. … Self-sacrifice and self-denial are their  nobility and fortitude and yet they have  been subjected to all inequities, indignities,  inequality and discrimination.‖ (SCC p. 148,  para 28)  

24. The way women had suffered has been  aptly reflected by an author who has spoken  with quite a speck of sensibility:  

―Dowry is an intractable disease for women,  a bed of arrows for annihilating self-respect,  but without the boon of wishful death.‖  

25. Long back, Charles Fourier had stated:  

―The extension of women‘s rights is the  basic principle of all social progress.‖   

26. Recapitulating from the past, I may refer  to certain sayings in the Smritis which put  women in an elevated position. This Court  

                                                                 29

(1996) 5 SCC 125

36    

in Nikku Ram case4 had already reproduced  the first line of the shloka. The second line  of the same which is also significant is as  follows:  

Yatra tastu na pujyante sarvastatraphalah kriyah  

A free translation of the aforesaid is reproduced  below:  

 ―All the actions become unproductive in a place,  

where they are not treated with proper respect and  dignity.‖  

27. Another wise man of the past had his own way  of putting it:  

Bhartr bhratr pitrijnati  swasruswasuradevaraih  

Bandhubhisca striyah pujyah  bhusnachhadanasnaih  

 A free translation of the aforesaid is as  follows:  

―The women are to be respected equally on a  par with husbands, brothers, fathers,  relatives, in-laws and other kith and kin  and while respecting, the women gifts like  ornaments, garments, etc. should be given  as token of honour.‖  

28. Yet again, the sagacity got reflected in  following lines:  

37    

Atulam yatra tattejah sarvadevasarirajam  

Ekastham tadabhunnari vyaptalokatrayam  tvisa  

A free translation of the aforesaid is  reproduced below:  

―The incomparable valour (effulgence) born  from the physical frames of all the gods,  spreading the three worlds by its radiance  and combining together took the form of a  woman.‖     

29. From the past, I travel to the present  and respectfully notice what Lord Denning  had to say about the equality of women and  their role in the society:  

―A woman feels as keenly, thinks as clearly,  as a man. She in her sphere does work as  useful as man does in his. She has as much  right to her freedom — to develop her  personality to the full as a man. When she  marries, she does not become the husband‘s  servant but his equal partner. If his work is  more important in life of the community,  her‘s is more important of the family.  Neither can do without the other. Neither is  above the other or under the other. They are  equals.‖  

33. In Charu Khurana and others v. Union of India and  

others30, speaking about the dignity of women, the Court held:-   

―33. … Be it stated, dignity is the  quintessential quality of a personality and a  human frame always desires to live in the  

                                                                 30

(2015) 1 SCC 192

38    

mansion of dignity, for it is a highly  

cherished value. Clause (j) has to be  understood in the backdrop that India is a  welfare State and, therefore, it is the duty of  the State to promote justice, to provide  equal opportunity to all citizens and see  that they are not deprived of by reasons of  economic disparity. It is also the duty of the  State to frame policies so that men and  women have the right to adequate means of  livelihood. It is also the duty of the citizen to  strive towards excellence in all spheres of  individual and collective activity so that the  nation constantly rises to higher levels of  endeavour and achievement.‖  

  34. In Shakti Vahini v. Union of India and others31, the lis  

was in a different context.  The Court reproduced a passage from  

Joseph J. Ellis which is also relevant for the present purpose. It  

reads:-  

―We don‘t live in a world in which there  exists a single definition of honour anymore,  and it‘s a fool that hangs onto the  traditional standards and hopes that the  world will come around him.‖  

 35.  In the said case, a contention was advanced that the  

existence of a woman is entirely dependent on the male view of  

the reputation of the family, the community and the milieu.  The  

Court, in that context, observed:-   

―5. …The collective behaves like a  patriarchal monarch which treats the wives,  

                                                                 31

(2018) 7 SCC 192

39    

sisters and daughters subordinate, even  servile or self-sacrificing, persons moving in  physical frame having no individual  autonomy, desire and identity. The concept  of status is accentuated by the male  members of the community and a sense of  masculine dominance becomes the sole  governing factor of perceptive honour.‖  

  36.  We have referred to the aforesaid as we are of the view that  

there cannot be a patriarchal monarchy over the daughter or, for  

that matter, husband‘s monarchy over the wife. That apart, there  

cannot be a community exposition of masculine dominance.   

37. Having stated about the dignity of a woman, in the context  

of autonomy, desire, choice and identity, it is obligatory to refer  

to the recent larger Bench decision in K.S. Puttaswamy and  

another v. Union of India and others32 which, while laying  

down that privacy is a facet of Article 21 of the Constitution, lays  

immense stress on the dignity of an individual.  In the said  

judgment, it has been held:-  

―108. Over the last four decades, our  constitutional jurisprudence has recognised the  inseparable relationship between protection of  life and liberty with dignity. Dignity as a  constitutional value finds expression in the  Preamble. The constitutional vision seeks the  realisation of justice (social, economic and  political); liberty (of thought, expression, belief,  faith and worship); equality (as a guarantee  

                                                                 32

(2017) 10 SCC 1

40    

against arbitrary treatment of individuals) and  fraternity (which assures a life of dignity to every  individual). These constitutional precepts exist in  unity to facilitate a humane and compassionate  society. The individual is the focal point of the  Constitution because it is in the realisation of  individual rights that the collective well-being of  the community is determined. Human dignity is  an integral part of the Constitution. Reflections  of dignity are found in the guarantee against  arbitrariness (Article 14), the lamps of freedom  (Article 19) and in the right to life and personal  liberty (Article 21).    

xxx   xxxx   xxx  

119. 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 emphasising, 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. Dignity  is the core which unites the fundamental rights  because the fundamental rights seek to achieve  for each individual the dignity of existence...‖  

xxx   xxx   xxx  

―298. Privacy of the individual is an essential  aspect of dignity. Dignity has both an intrinsic  and instrumental value. As an intrinsic value,  human dignity is an entitlement or a  constitutionally protected interest in itself. In its  instrumental facet, dignity and freedom are  inseparably inter-twined, each being a facilitative  tool to achieve the other. The ability of the  individual to protect a zone of privacy enables  the realization of the full value of life and liberty.  Liberty has a broader meaning of which privacy  is a subset. All liberties may not be exercised in  privacy. Yet others can be fulfilled only within a

41    

private space. Privacy enables the individual to  retain the autonomy of the body and mind. The  autonomy of the individual is the ability to make  decisions on vital matters of concern to life.  Privacy has not been couched as an independent  fundamental right. But that does not detract  from the constitutional protection afforded to it,  once the true nature of privacy and its  relationship with those fundamental rights  which are expressly protected is understood.  Privacy lies across the spectrum of protected  freedoms. The guarantee of equality is a  guarantee against arbitrary state action. It  prevents the state from discriminating between  individuals. The destruction by the state of a  sanctified personal space whether of the body or  of the mind is violative of the guarantee against  arbitrary state action. Privacy of the body entitles  an individual to the integrity of the physical  aspects of personhood. The intersection between  one's mental integrity and privacy entitles the  individual to freedom of thought, the freedom to  believe in what is right, and the freedom of self- determination.‖  

xxx   xxx   xxx  

―525. But most important of all is the cardinal  value of fraternity which assures the dignity of  the individual.359 The dignity of the individual  encompasses the right of the individual to  develop to the full extent of his potential. And  this development can only be if an individual has  autonomy over fundamental personal choices  and control over dissemination of personal  information which may be infringed through an  unauthorized use of such information. It is clear  that Article 21, more than any of the other  Articles in the fundamental rights chapter,  reflects each of these constitutional values in  full, and is to be read in consonance with these  values and with the international covenants that

42    

we have referred to. In the ultimate analysis, the  fundamental right of privacy, which has so many  developing facets, can only be developed on a  case to case basis. Depending upon the  particular facet that is relied upon, either Article  21 by itself or in conjunction with other  fundamental rights would get attracted.‖    

38. In this context, we may profitably refer to National Legal  

Services Authority v. Union of India and others33 wherein A.K.  

Sikri, J., in his concurring opinion, emphasizing on the concept  

of dignity, has opined:-  

―The basic principle of the dignity and freedom  of the individual is common to all nations,  particularly those having democratic set up.  Democracy requires us to respect and develop  the free spirit of human being which is  responsible for all progress in human history.  Democracy is also a method by which we  attempt to raise the living standard of the  people and to give opportunities to every person  to develop his/her personality. It is founded on  peaceful co-existence and cooperative living. If  democracy is based on the recognition of the  individuality and dignity of man, as a fortiori we  have to recognize the right of a human being to  choose his sex/gender identity which is integral  his/her personality and is one of the most basic  aspect of self-determination dignity and  freedom. In fact, there is a growing recognition  that the true measure of development of a  nation is not economic growth; it is human  dignity.‖  

                                                                 33

(2014) 5 SCC 438

43    

39. Very recently, in Common Cause (A Registered Society) v.  

Union of India and another34, one of us has stated:-  

―... Human dignity is beyond definition.  It may at  times defy description.  To some, it may seem to be in  the world of abstraction and some may even  perversely treat it as an attribute of egotism or  accentuated eccentricity.  This feeling may come from  the roots of absolute cynicism.  But what really  matters is that life without dignity is like a sound  that is not heard.  Dignity speaks, it has its sound, it  is natural and human.  It is a combination of thought  and feeling, and, as stated earlier, it deserves respect  even when the person is dead and described as a  ―body‖.....‖  

And again:-  

―The concept and value of dignity requires  further elaboration since we are treating it as an  inextricable facet of right to life that respects all  human rights that a person enjoys. Life is  basically self-assertion. In the life of a person,  conflict and dilemma are expected to be normal  phenomena. Oliver Wendell Holmes, in one of  his addresses, quoted a line from a Latin poet  who had uttered the message, ―Death plucks  my ear and says, Live- I am coming‖ . That is  the significance of living. But when a patient  really does not know if he/she is living till death  visits him/her and there is constant suffering  without any hope of living, should one be  allowed to wait? Should she/he be cursed to die  as life gradually ebbs out from her/his being?  Should she/he live because of innovative  medical technology or, for that matter, should  he/she continue to live with the support system  as people around him/her think that science in  its progressive invention may bring about an  innovative method of cure? To put it differently,  

                                                                 34

(2018) 5 SCC 1

44    

should he/she be ―guinea pig for some kind of  experiment? The answer has to be an emphatic  ―Not because such futile waiting mars the  pristine concept of life, corrodes 139 the essence  of dignity and erodes the fact of eventual choice  which is pivotal to privacy.‖     

In Mehmood Nayyar Azam v. State of  Chhattisgarh and others, a two-Judge Bench  held thus:-  

―1...... Albert Schweitzer, highlighting on  Glory of Life, pronounced with conviction and  humility, "the reverence of life offers me my  fundamental principle on morality". The  aforesaid expression may appear to be an  individualistic expression of a great  personality, but, when it is understood in the  complete sense, it really denotes, in its  conceptual essentiality, and connotes, in its  macrocosm, the fundamental perception of a  thinker about the respect that life commands.  The reverence of life is insegragably  associated with the dignity of a human being  who is basically divine, not servile. A human  personality is endowed with potential infinity  and it blossoms when dignity is sustained.  The sustenance of such dignity has to be the  superlative concern of every sensitive soul.  The essence of dignity can never be treated as  a momentary spark of light or, for that  matter, 'a brief candle', or 'a hollow bubble'.  The spark of life gets more resplendent when  man is treated with dignity sans humiliation,  for every man is expected to lead an  honourable life which is a splendid gift of  "creative intelligence"     

40. In the said judgment, A.K. Sikri, J. reproduced a passage  

from Professor Upendra Baxi‘s lecture in First Justice H.R.  

Khanna Memorial Lecture which reads as follows:-

45    

―I still need to say that the idea of dignity is a  metaethical one, that is it marks and maps a  difficult terrain of what it may mean to say  being 'human' and remaining 'human', or put  another way the relationship between 'self',  'others', and 'society'. In this formulation the  word 'respect' is the keyword: dignity is respect  for an individual person based on the principle  of freedom and capacity to make choices and a  good or just social order is one which respects  dignity via assuring 'contexts' and 'conditions'  as the 'source of free and informed choice'.  Respect for dignity thus conceived is  empowering overall and not just because it,  even if importantly, sets constraints state, law,  and regulations.‖  

41. From the aforesaid analysis, it is discernible that the Court,  

with the passage of time, has recognized the conceptual equality  

of woman and the essential dignity which a woman is entitled to  

have.  There can be no curtailment of the same.  But, Section  

497 IPC effectively does the same by creating invidious  

distinctions based on gender stereotypes which creates a dent in  

the individual dignity of women.  Besides, the emphasis on the  

element of connivance or consent of the husband tantamounts to  

subordination of women. Therefore, we have no hesitation in  

holding that the same offends Article 21 of the Constitution.   

42. Another aspect needs to be addressed.  The question we  

intend to pose is whether adultery should be treated as a  

criminal offence.  Even assuming that the new definition of

46    

adultery encapsules within its scope sexual intercourse with an  

unmarried woman or a widow, adultery is basically associated  

with the institution of marriage.  There is no denial of the fact  

that marriage is treated as a social institution and regard being  

had to various aspects that social history has witnessed in this  

country, the Parliament has always made efforts to maintain the  

rights of women.  For instance, Section 498-A IPC deals with  

husband or relative of husband of a woman subjecting her to  

cruelty.  The Parliament has also brought in the Protection of  

Women from Domestic Violence Act, 2005.  This enactment  

protects women.  It also enters into the matrimonial sphere.  The  

offences under the provisions of the said enactment are different  

from the provision that has been conceived of under Section 497  

IPC or, for that matter, concerning bringing of adultery within the  

net of a criminal offence.  There can be no shadow of doubt that  

adultery can be a ground for any kind of civil wrong including  

dissolution of marriage.  But the pivotal question is whether it  

should be treated as a criminal offence.  When we say so, it is not  

to be understood that there can be any kind of social licence that  

destroys the matrimonial home.  It is an ideal condition when the  

wife and husband maintain their loyalty.  We are not

47    

commenting on any kind of ideal situation but, in fact, focusing  

on whether the act of adultery should be treated as a criminal  

offence.  In this context, we are reminded of what Edmund  

Burke, a famous thinker, had said, ―a good legislation should be  

fit and equitable so that it can have a right to command  

obedience‖.  Burke would like to put it in two compartments,  

namely, ‗equity‘ and ‗utility‘.  If the principle of Burke is properly  

understood, it conveys that laws and legislations are necessary to  

serve and promote a good life.  

43. Dealing with the concept of crime, it has been stated in  

―Principles of Criminal Liability‖35 thus :-  

―1. Definition of crime.—There is no  satisfactory definition of crime which will  embrace the many acts and omissions  which are criminal, and which will at the  same time exclude all those acts and  omissions which are not. Ordinarily a crime  is a wrong which affects the security or well- being of the public generally so that the  public has an interest in its suppression. A  crime is frequently a moral wrong in that it  amounts to conduct which is inimical to the  general moral sense of the community. It is,  however, possible to instance many crimes  which exhibit neither of the foregoing  characteristics. An act may be made  criminal by Parliament simply because it is  criminal process, rather than civil, which  

                                                                 35

Halsbury‟s Laws of England, 4th Edn., Vol. 11 p.11,

48    

offers the more effective means of  controlling the conduct in question.‖  

44. In Kenny‟s Outlines of Criminal Law, 19th Edn., 1966 by  

J.W. Cecil Turner, it has been stated that:-  

―There is indeed no fundamental or inherent  difference between a crime and a tort. Any  conduct which harms an individual to some  extent harms society, since society is made  up of individuals; and therefore although it  is true to say of crime that is an offence  against society, this does not distinguish  crime from tort. The difference is one of  degree only, and the early history of the  common law shows how words which now  suggest a real distinction began rather as  symbols of emotion than as terms of  scientific classification.‖  

And again:-  

―So long as crimes continue (as would seem  inevitable) to be created by government  policy the nature of crime will elude true  definition. Nevertheless it is a broadly  accurate description to say that nearly every  instance of crime presents all of the three  

following characteristics: (1) that it is a  harm, brought about by human conduct,  which the sovereign power in the State  

desires to prevent; (2) that among the  measures of prevention selected is the  

threat of punishment; (3) that legal  proceedings of a special kind are employed  to decide whether the person accused did in  fact cause the harm, and is, according to  law, to be held legally punishable for doing  so.‖  

49    

45. Stephen defines a ―crime‖ thus:-  

 ―A crime is an unlawful act or default which  is an offence against the public, rendering  the person guilty of such act or default  liable to legal punishment. The process by  which such person is punished for the  unlawful act or default is carried on in the  name of the Crown; although any private  person, in the absence of statutory provision  to the contrary, may commence a criminal  prosecution. Criminal proceedings were  formerly called pleas of the Crown, because  the King, in whom centres the majesty of  the whole community, is supposed by the  law to be the person injured by every  infraction of the public rights belonging to  that community. Wherefore he is, in all  cases, the proper prosecutor for every public  offence.‖  

 46. Blackstone, while discussing the general nature of crime,  

has defined crime thus:-  

―A crime, or misdemeanour, is an act  committed or omitted, in violation of a  public law, either forbidding or commanding  it. This general definition comprehends both  crimes and misdemeanours; which, properly  speaking, are mere synonym terms: though,  in common usage, the word ―crimes‖ is  made to denote such offences as are of a  deeper and more atrocious dye; while  smaller faults, and omissions of less  consequence, are comprised under the  gentler name of ―misdemeanours‖ only.‖  

 47. In this regard, we may reproduce a couple of  

paragraphs from Central Inland Water Transport  

50    

Corporation Limited and another v. Brojo Nath  

Ganguly36.   They read as under:-   

―25. The story of mankind is punctuated by  progress and retrogression. Empires have risen  and crashed into the dust of history.  Civilizations have nourished, reached their  peak and passed away. In the year 1625,  Carew, C.J., while delivering the opinion of the  House of Lords in Re the Earldom of Oxford in  a dispute relating to the descent of that  Earldom, said:   

 ―... and yet time hath his revolution, there  must be a period and an end of all  temporal things, finis rerum, an end of  names and dignities, and whatsoever is  terrene....‖   

 The cycle of change and experiment, rise and  fall, growth and decay, and of progress and  retrogression recurs endlessly in the history of  man and the history of civilization. T.S. Eliot in  the First Chorus from ―The Rock‖ said:     O perpetual revolution of configured stars,   O perpetual recurrence of determined seasons,  O world of spring and autumn, birth and dying;   The endless cycle of idea and action,   Endless invention, endless experiment.‖     26. The law exists to serve the needs of the  society which is governed by it. If the law is to  play its allotted role of serving the needs of the  society, it must reflect the ideas and ideologies  of that society. It must keep time with the  heartbeats of the society and with the needs and  aspirations of the people. As the society  changes, the law cannot remain immutable. The  

                                                                 36

(1986) 3 SCC 156

51    

early nineteenth century essayist and wit,  Sydney Smith, said: ―When I hear any man talk  of an unalterable law, I am convinced that he is  

an unalterable fool.‖  The law must, therefore, in  a changing society march in tune with the  changed ideas and ideologies.”  

48. Reproducing the same, the Court in Common Cause (A  

Registered Society) (supra), has observed :-  

―160. The purpose of saying so is only to  highlight that the law must take cognizance of  the changing society and march in consonance  with the developing concepts. The need of the  present has to be served with the interpretative  process of law. However, it is to be seen how  much strength and sanction can be drawn from  the Constitution to consummate the changing  ideology and convert it into a reality. The  immediate needs are required to be addressed  through the process of interpretation by the  Court unless the same totally falls outside the  constitutional framework or the constitutional  interpretation fails to recognize such  dynamism.‖  

 49. We have referred to the aforesaid theories and authorities to  

understand whether adultery that enters into the matrimonial  

realm should be treated as a criminal offence.  There can be  

many a situation and we do not intend to get into the same.   

Suffice it to say, it is different from an offence committed under  

Section 498-A or any violation of the Protection of Women from  

Domestic Violence Act, 2005 or, for that matter, the protection  

conceived of under Section 125 of the Code of Criminal Procedure

52    

or Sections 306 or 304B or 494 IPC.  These offences are meant to  

sub-serve various other purposes relating to a matrimonial  

relationship and extinction of life of a married woman during  

subsistence of marriage.  Treating adultery an offence, we are  

disposed to think, would tantamount to the State entering into a  

real private realm.  Under the existing provision, the husband is  

treated as an aggrieved person and the wife is ignored as a  

victim. Presently, the provision is reflective of a tripartite  

labyrinth. A situation may be conceived of where equality of  

status and the right to file a case may be conferred on the wife.   

In either situation, the whole scenario is extremely private.  It  

stands in contradistinction to the demand for dowry, domestic  

violence, sending someone to jail for non-grant of maintenance or  

filing a complaint for second marriage.  Adultery stands on a  

different footing from the aforesaid offences.  We are absolutely  

conscious that the Parliament has the law making power.  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.  We may repeat at the cost of repetition  

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

53    

be left as a ground for divorce.  For any other purpose as the  

Parliament has perceived or may, at any time, perceive, to treat it  

as a criminal offence will offend the two facets of Article 21 of the  

Constitution, namely, dignity of husband and wife, as the case  

may be, and the privacy attached to a relationship between the  

two.  Let it be clearly stated, by no stretch of imagination, one  

can say, that Section 498-A or any other provision, as mentioned  

hereinbefore, also enters into the private realm of matrimonial  

relationship.  In case of the said offences, there is no third party  

involved.  It is the husband and his relatives.  There has been  

correct imposition by law not to demand dowry or to treat women  

with cruelty so as to compel her to commit suicide.  The said  

activities deserve to be punished and the law has rightly provided  

so.    

50. In this regard, we may also note how the extramarital  

relationship cannot be treated as an act for commission of an  

offence under Section 306 IPC.  In Pinakin Mahipatray Rawal  

v. State of Gujarat37, the Court has held :-  

―27. Section 306 refers to abetment of suicide  which says that if any person commits suicide,  whoever abets the commission of such suicide,  shall be punished with imprisonment for a term  

                                                                 37

(2013) 10 SCC 48

54    

which may extend to 10 years and shall also be  liable to fine. The action for committing suicide  is also on account of mental disturbance caused  by mental and physical cruelty. To constitute an  offence under Section 306, the prosecution has  to establish that a person has committed  suicide and the suicide was abetted by the  

accused. The prosecution has to establish  beyond reasonable doubt that the deceased  committed suicide and the accused abetted the  commission of suicide. But for the alleged extra- marital relationship, which if proved, could be  illegal and immoral, nothing has been brought  out by the prosecution to show that the accused  had provoked, incited or induced the wife to  commit suicide.”  

[Emphasis added]    

51. In the context of Section 498-A, the Court, in Ghusabhai  

Raisangbhai Chorasiya v. State of Gujarat38, has opined that  

even if the illicit relationship is proven, unless some other  

acceptable evidence is brought on record to establish such high  

degree of mental cruelty, the Explanation (a) to Section 498-A  

IPC, which includes cruelty to drive the woman to commit  

suicide, would not be attracted.  The relevant passage from the  

said authority is extracted below :-  

―21. …True it is, there is some evidence about  the illicit relationship and even if the same is  proven, we are of the considered opinion that  cruelty, as envisaged under the first limb of  Section 498-A IPC would not get attracted. It  would be difficult to hold that the mental cruelty  

                                                                 38

(2015) 11 SCC 753

55    

was of such a degree that it would drive the wife  to commit suicide. Mere extra-marital  relationship, even if proved, would be illegal and  

immoral, as has been said in Pinakin  Mahipatray Rawal, but it would take a different  character if the prosecution brings some  evidence on record to show that the accused  had conducted in such a manner to drive the  wife to commit suicide. In the instant case, the  accused may have been involved in an illicit  relationship with Appellant 4, but in the  absence of some other acceptable evidence on  record that can establish such high degree of  mental cruelty, the Explanation to Section 498- A IPC which includes cruelty to drive a woman  to commit suicide, would not be attracted.‖  

[Emphasis added]    

52. The purpose of referring to the aforesaid authorities is to  

highlight how adultery has not been granted separate exclusive  

space in the context of Sections 306 and 498-A IPC.  

53. In case of adultery, the law expects the parties to remain  

loyal and maintain fidelity throughout and also makes the  

adulterer the culprit.  This expectation by law is a command  

which gets into the core of privacy. That apart, it is a  

discriminatory command and also a socio-moral one. Two  

individuals may part on the said ground but to attach criminality  

to the same is inapposite.  

54. We may also usefully note here that adultery as a crime is  

no more prevalent in People‘s Republic of China, Japan,

56    

Australia, Brazil and many western European countries.  The  

diversity of culture in those countries can be judicially taken note  

of.  Non-criminalisation of adultery, apart from what we have  

stated hereinabove, can be proved from certain other facets.   

When the parties to a marriage lose their moral commitment of  

the relationship, it creates a dent in the marriage and it will  

depend upon the parties how they deal with the situation.  Some  

may exonerate and live together and some may seek divorce.  It is  

absolutely a matter of privacy at its pinnacle.   The theories of  

punishment, whether deterrent or reformative, would not save  

the situation.  A punishment is unlikely to establish  

commitment, if punishment is meted out to either of them or a  

third party.  Adultery, in certain situations, may not be the cause  

of an unhappy marriage.  It can be the result.  It is difficult to  

conceive of such situations in absolute terms.  The issue that  

requires to be determined is whether the said ‗act‘ should be  

made a criminal offence especially when on certain occasions, it  

can be the cause and in certain situations, it can be the result.  If  

the act is treated as an offence and punishment is provided, it  

would tantamount to punishing people who are unhappy in  

marital relationships and any law that would make adultery a

57    

crime would have to punish indiscriminately both the persons  

whose marriages have been broken down as well as those  

persons whose marriages are not.  A law punishing adultery as a  

crime cannot make distinction between these two types of  

marriages.  It is bound to become a law which would fall within  

the sphere of manifest arbitrariness.  

55. In this regard, another aspect deserves to be noted.  The  

jurisprudence in England, which to a large extent, is adopted by  

this country has never regarded adultery as a crime except for a  

period of ten years in the reign of Puritanical Oliver Cromwell.  As  

we see the international perspective, most of the countries have  

abolished adultery as a crime.  We have already ascribed when  

such an act is treated as a crime and how it faces the frown of  

Articles 14 and 21 of the Constitution.  Thinking of adultery from  

the point of view of criminality would be a retrograde step.  This  

Court has travelled on the path of transformative  

constitutionalism and, therefore, it is absolutely inappropriate to  

sit in a time machine to a different era where the machine moves  

on the path of regression.  Hence, to treat adultery as a crime  

would be unwarranted in law.   

58    

56. As we have held that Section 497 IPC is unconstitutional  

and adultery should not be treated as an offence, it is  

appropriate to declare Section 198 CrPC which deals with the  

procedure for filing a complaint in relation to the offence of  

adultery as unconstitutional.  When the substantive provision  

goes, the procedural provision has to pave the same path.  

57. In view of the foregoing analysis, the decisions in  

Sowmithri Vishnu (supra) and V. Revathi (supra) stand  

overruled and any other judgment following precedents also  

stands overruled.  

58. Consequently, the writ petition is allowed to the extent  

indicated hereinbefore.  

.………………………….CJI.  

       (Dipak Misra)           

       .…………………………….J.  

(A.M. Khanwilkar)    New Delhi;   September 27, 2018

1  

REPORTABLE  

 IN THE SUPREME COURT OF INDIA  

 CRIMINAL ORIGINAL JURISDICTION  

 WRIT PETITION (CRIMINAL) NO. 194 OF 2017  

JOSEPH SHINE      … PETITIONER    

VERSUS    

UNION OF INDIA     … RESPONDENT      

J U D G M E N T  

R.F. Nariman, J. (Concurring)    

1. What is before us in this writ petition is the constitutional  

validity of an archaic provision of the Indian Penal Code (―IPC‖),  

namely, Section 497, which makes adultery a crime. Section  

497 appears in Chapter XX of the IPC, which deals with  

offences relating to marriage. Section 497 reads as follows:-  

―497. Adultery.—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

2  

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.‖  

 The offence of bigamy, which is contained in Section 494 in the  

same Chapter, is punishable with a longer jail term which may  

extend to 7 years, but in this case, the husband or the wife, as  

the case may be, is liable to be prosecuted and convicted.  

Section 494 reads as follows:  

―494. Marrying again during lifetime of husband  or wife.—Whoever, having a husband or wife living,  marries in any case in which such marriage is void  by reason of its taking place during the life of such  husband or wife, shall be punished with  imprisonment of either description for a term which  may extend to seven years, and shall also be liable  to fine.  

Exception.—This section does not extend to any  person whose marriage with such husband or wife  has been declared void by a Court of competent  jurisdiction,  

nor to any person who contracts a marriage during  the life of a former husband or wife, if such husband  or wife, at the time of the subsequent marriage, shall  have been continually absent from such person for  the space of seven years, and shall not have been  heard of by such person as being alive within that  time provided the person contracting such  subsequent marriage shall, before such marriage  takes place, inform the person with whom such

3  

marriage is contracted of the real state of facts so  far as the same are within his or her knowledge.‖  

 It will be noticed that the crime of adultery punishes only a third-

party male offender as against the crime of bigamy, which  

punishes the bigamist, be it a man or a woman. What is  

therefore punished as ‗adultery‘ is not ‗adultery‘ per se but the  

proprietary interest of a married man in his wife.    

 Almost all ancient religions/civilizations punished the sin of  

adultery. In one of the oldest, namely, in Hammurabi‘s Code,  

death by drowning was prescribed for the sin of adultery, be it  

either by the husband or the wife. In Roman law, it was not a  

crime against the wife for a husband to have sex with a slave or  

an unmarried woman. The Roman lex Iulia de adulteriis  

coercendis of 17 B.C., properly so named after Emperor  

Augustus‘ daughter, Julia, punished Julia for adultery with  

banishment. Consequently, in the case of adulterers generally,  

both guilty parties were sent to be punished on different islands,  

and part of their property was confiscated.  

4  

2.  In Judaism, which again is an ancient religion, the Ten  

Commandments delivered by the Lord to Moses on Mount Sinai  

contains the Seventh Commandment – ―Thou shalt not commit  

adultery‖ – set out in the book of Exodus in the Old Testament.1  

Equally, since the wages of sin is death, the book of Leviticus in  

the Old Testament prescribes the death penalty for the  

adulterer as well as the adulteress.2   

 3.  In Christianity, we find adultery being condemned as  

immoral and a sin for both men and women, as is evidenced by  

St. Paul‘s letter to the Corinthians.3 Jesus himself stated that a  

man incurs sin the moment he looks at a woman with lustful  

intent.4 However, when it came to punishing a woman for  

adultery, by stoning to death in accordance with the ancient  

Jewish law, Jesus uttered the famous words, ―let him who has  

not sinned, cast the first stone.‖5  

                                                           1  Exodus 20:14 (King James Version).  

2  Leviticus 20:10 (King James Version).  

3  1 Corinthians 6:9-10 (King James Version).  

4  Matthew 5:27-28 (King James Version).  

5  John, 8:7 (English Standard Version).

5  

4.  In this country as well, in the Manusmriti, Chapters 4.1346  

and 8.3527 prescribes punishment for those who are addicted  

to intercourse with wives of other men by punishments which  

cause terror, followed by banishment. The Dharmasutras speak  

with different voices. In the Apastamba Dharmasutra, adultery  

is punishable as a crime, the punishment depending upon the  

class or caste of the man and the woman.8 However, in the  

Gautama Dharmasutra, if a man commits adultery, he should  

observe a life of chastity for two years; and if he does so with  

the wife of a vedic scholar, for three years.9  

 5.  In Islam, in An-Nur, namely, Chapter 24 of the Qur‘an,  

Verses 2 and 6 to 9 read as follows:  

―2. The adulteress and the adulterer, flog each of  them (with) a hundred stripes, and let not pity for  them detain you from obedience to Allah, if you  believe in Allah and the Last Day, and let a party of  believers witness their chastisement.‖10  

xxx xxx xxx  

                                                           6  THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886).  

7  Id., 315.  

8  DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 70-71  

(Translation by Patrick Olivelle, Oxford University Press 1999).  9  Id., 116-117.   

10  THE KORAN (AL–QUR‘AN): ARABIC-ENGLISH BILINGUAL EDITION WITH AN INTRODUCTION BY MOHAMED A.  

‗ARAFA 363 (Maulana Muhammad Ali Translation, TellerBooks, 2018).

6  

―6. And those who accuse their wives and have no  witnesses except themselves, let one of them testify  four times, bearing Allah to witness, that he is of  those who speak the truth.  

7. And the fifth (time) that the curse of Allah be on  him, if he is of those who lie.  

8. And it shall avert the chastisement from her, if she  testify four times, bearing Allah to witness, that he is  of those who lie.  

9. And the fifth (time) that the wrath of Allah to be on  her, if he is of those who speak the truth.‖11  

 What is interesting to note is that if there are no witnesses other  

than the husband or the wife, and the husband testifies four  

times that his wife has committed adultery, which is met by the  

wife testifying four times that she has not, then earthly  

punishment is averted. The wrath of Allah alone will be on the  

head of he or she who has given false testimony – which wrath  

will be felt only in life after death in the next world.  

6.  In sixth-century Anglo-Saxon England, the law created  

―elaborate tables of composition‖ which the offended husband  

could accept in lieu of blood vengeance. These tables were  

schemes for payment of compensation depending upon the  

                                                           11

Id.

7  

degree of harm caused to the cuckolded husband. However, as  

Christianity spread in England, adultery became morally wrong  

and therefore, a sin, as well as a wrong against the husband.  

Post 1066, the Normans who took over, viewed adultery not as  

a crime against the State, but rather as an ecclesiastical  

offence dealt with by the Church. The common law of England  

prescribed an action in tort for loss of consortium based on the  

property interest a husband had in his wife. Thus, the action for  

conversation, which is compensation or damages, usually  

represented a first step in obtaining divorce in medieval  

England. In fact, adultery was the only ground for divorce in  

seventeenth-century England, which had to be granted only by  

Parliament. Interestingly enough, it was only after King Charles  

I was beheaded in 1649, that adultery became a capital offence  

in Cromwell‘s Puritanical England in the year 1650, which was  

nullified as soon as King Charles II came back in what was  

known as the ‗restoration of the monarchy‘. It will be seen  

therefore, that in England, except for an eleven-year period  

when England was ruled by the Puritans, adultery was never  

considered to be a criminal offence. Adultery was only a tort for

8  

which damages were payable to the husband, given his  

proprietary interest in his wife.12 This tort is adverted to by a  

1904 judgment of the Supreme Court of the United States in  

Charles A. Tinker v. Frederick L. Colwell, 193 US 473  

(1904), as follows:   

―…… We think the authorities show the husband  had certain personal and exclusive rights with  regard to the person of his wife which are interfered  with and invaded by criminal conversation with her;  that such an act on the part of another man  constitutes an assault even when, as is almost  universally the case as proved, the wife in fact  consents to the act, because the wife is in law  incapable of giving any consent to affect the  husband‘s rights as against the wrongdoer, and that  an assault of this nature may properly be described  as an injury to the personal rights and property of  the husband, which is both malicious and willful……   

The assault vi et armis is a fiction of law, assumed  at first, in early times, to give jurisdiction of the  cause of action as a trespass, to the courts, which  then proceeded to permit the recovery of damages  by the husband for his wounded feelings and  honour, the defilement of the marriage bed, and for  the doubt thrown upon the legitimacy of children.‖13  

―We think that it is made clear by these references  to a few of the many cases on this subject that the  cause of action by the husband is based upon the  

                                                           12

Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex  

between Domestic Relations Attorneys and Their Clients, 23 HARVARD WOMEN‘S LAW JOURNAL 1, 21-22  

(2000) [―Linda Fitts Mischler‖].  13

Tinker v. Colwell, 193 U.S. 473, 481 (1904).

9  

idea that the act of the defendant is a violation of the  marital rights of the husband in the person of his  wife, and so the act of the defendant is an injury to  the person and also to the property rights of the  husband.‖14  

 To similar effect is the judgment in Pritchard v. Pritchard and  

Sims, [1966] 3 All E.R. 601, which reconfirmed the origins of  

adultery or criminal conversation as under:  

―In 1857, when marriage in England was still a union  for life which could be broken only by private Act of  Parliament, there existed side by side under the  common law three distinct causes of action  available to a husband whose rights in his wife were  violated by a third party, who enticed her away, or  who harboured her or who committed adultery with  her. …… In the action for adultery known as criminal  conversation, which dates from before the time of  BRACTON, and consequently lay originally in  trespass, the act of adultery itself was the cause of  action and the damages punitive at large.  It lay  whether the adultery resulted in the husband‘s  losing his wife‘s society and services or not.   All  three causes of action were based on the  recognition accorded by the common law to the  husband‘s propriety interest in the person of his  wife, her services and earnings, and in the property  which would have been hers had she been feme  sole.‖15  

                                                           14

Id., 485.  15

[1966] 3 All E.R. 601, 607.

10  

7.  In England, Section LIX of the Divorce and Matrimonial  

Causes Act, 1857 abolished the common law action for criminal  

conversation while retaining, by Section XXXIII of the same Act,  

the power to award the husband damages for adultery  

committed by the wife. This position continued right till 1923,  

when the Matrimonial Causes Act, 1923 made adultery a  

ground for divorce available to both spouses instead of only the  

husband. The right of a husband to claim damages for adultery  

was abolished very recently by the Law Reforms  

(Miscellaneous Provisions) Act, 1970.16  

 8.  In the United States, however, Puritans who went to make  

a living in the American colonies, carried with them Cromwell‘s  

criminal law, thereby making adultery a capital offence.  

Strangely enough, this still continues in some of the States in  

the United States. The American Law Institute, however, has  

dropped the crime of adultery from its Model Penal Code as  

adultery statutes are in general vague, archaic, and sexist.  

None of the old reasons in support of such statutes, namely,  

                                                           16

Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970.

11  

the controlling of disease, the preventing of illegitimacy, and  

preserving the traditional family continue to exist as of today. It  

was also found that criminal adultery statutes were rarely  

enforced in the United States and were, therefore, referred to  

as ―dead letter statutes‖. This, plus the potential abuses from  

such statutes continuing on the statute book, such as extortion,  

blackmail, coercion etc. were stated to be reasons for removing  

adultery as a crime in the Model Penal Code.17  

 9.  When we come to India, Lord Macaulay, in his draft Penal  

Code, which was submitted to the Law Commissioners, refused  

to make adultery a penal offence.  He reasoned as follows:  

―The following positions we consider as fully  established: first, that the existing laws for the  punishment of adultery are altogether inefficacious  for the purpose of preventing injured husbands of  the higher classes from taking the law into their own  hands; secondly, that scarcely any native of the  higher classes ever has recourse to the Courts of  law in a case of adultery for redress against either  his wife, or her gallant; thirdly, that the husbands  who have recourse in cases of adultery to the  Courts of law are generally poor men whose wives  have run away, that these husbands seldom have  any delicate feelings about the intrigue, but think  themselves injured by the elopement, that they  

                                                           17

Linda Fitts Mischler, supra n. 12, 23-25.

12  

consider their wives as useful members of their  small household, that they generally complain not of  the wound given to their affections, not of the stain  on their honor, but of the loss of a menial whom they  cannot easily replace, and that generally their  principal object is that the woman may be sent back.  The fiction by which seduction is made the subject  of an action in the English Courts is, it seems, the  real gist of most proceedings for adultery in the  Mofussil. The essence of the injury is considered by  the sufferer as lying in the ―per quod servitium  amisit.‖ Where the complainant does not ask to  have his wife again, he generally demands to be  reimbursed for the expenses of his marriage.  

These things being established it seems to us that  no advantage is to be expected from providing a  punishment for adultery. The population seems to  be divided into two classes- those whom neither the  existing punishment nor any punishment which we  should feel ourselves justified in proposing will  satisfy, and those who consider the injury produced  by adultery as one for which a pecuniary  compensation will sufficiently atone. Those whose  feelings of honor are painfully affected by the  infidelity of their wives will not apply to the tribunals  at all. Those whose feelings are less delicate will be  satisfied by a payment of money. Under such  circumstances we think it best to treat adultery  merely as a civil injury.‖  

xxx xxx xxx  

―These arguments have not satisfied us that  adultery ought to be made punishable by law. We  cannot admit that a Penal code is by any means to  be considered as a body of ethics, that the  legislature ought to punish acts merely because  those acts are immoral, or that because an act is not  punished at all it follows that the legislature

13  

considers that act as innocent. Many things which  are not punishable are morally worse than many  things which are punishable. The man who treats a  generous benefactor with gross in gratitude and  insolence, deserves more severe reprehension than  the man who aims a blow in a passion, or breaks a  window in a frolic. Yet we have punishments for  assault and mischief, and none for ingratitude. The  rich man who refuses a mouthful of rice to save a  fellow creature from death may be a far worse man  than the starving wretch who snatches and devours  the rice. Yet we punish the latter for theft, and we do  not punish the former for hard-heartedness.‖  

xxx xxx xxx  

―There is yet another consideration which we cannot  wholly leave out of sight. Though we well know that  the dearest interests of the human race are closely  connected with the chastity of women, and the  sacredness of the nuptial contract, we cannot but  feel that there are some peculiarities in the state of  society in this country which may well lead a  humane man to pause before he determines to  punish the infidelity of wives. The condition of the  women of this country is unhappily very different  from that of the women of England and France.  They are married while still children. They are often  neglected for other wives while still young. They  share the attentions of a husband with several  rivals. To make laws for punishing the inconstancy  of the wife while the law admits the privilege of the  husband to fill his zenana with women, is a course  which we are most reluctant to adopt. We are not so  visionary as to think of attacking by law an evil so  deeply rooted in the manners of the people of this  country as polygamy. We leave it to the slow, but we  trust the certain operation of education and of time.  But while it exists, while it continues to produce its  never failing effects on the happiness and

14  

respectability of women, we are not inclined to throw  into a scale already too much depressed the  additional weight of the penal law. We have given  the reasons which lead us to believe that any  enactment on this subject would be nugatory. And  we are inclined to think that if not nugatory it would  be oppressive. It would strengthen hands already  too strong. It would weaken a class already too  weak. It will be time enough to guard the  matrimonial contract by penal sanctions when that  contract becomes just, reasonable, and mutually  beneficial.‖18  

 10.  However, when the Court Commissioners reviewed the  

Penal Code, they felt that it was important that adultery be  

made an offence. The reasons for so doing are set out as  

follows:  

―353. Having given mature consideration to the  subject, we have, after some hesitation, come to the  conclusion that it is not advisable to exclude this  offence from the Code. We think the reasons for  continuing to treat it as a subject for the cognizance  of the criminal courts preponderate.  We conceive  that Colonel Sleeman is probably right in regarding  the difficulty of proving the offence according to the  requirement of the Mohammedan law of evidence,  which demands an amount of positive proof that is  scarcely ever to be had in such a case, as having  some effect in deterring the Natives from  prosecuting adulterers in our courts, although the  

                                                           18

A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE  GOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 (G.H. Huttmann, The Bengal Military Orphan Press,  1837).

15  

Regulations allow of a conviction upon strong  presumption arising from circumstantial evidence.   This difficulty, if it has had the effect supposed, will  be removed, should the Code be adopted.  Colonel  Sleeman‘s representation of the actual  consequences of the present system, which, while it  recognizes the offence, renders it, in the opinion of  the Natives, almost impossible to bring an offender  to justice, it will be observed, coincides with and  confirms practically Mr. Livingstone‘s view of the  result to be expected when the law refuses to  punish this offence. The injured party will do it for  himself; great crimes, assassinations, poisonings,  will be the consequence.   The law here does not  refuse, but it fails to punish the offence, says  Colonel Sleeman, and poisonings are the  consequence.   

354. Colonel Sleeman thinks that the  Commissioners have wrongly assumed that it is the  lenity of the existing law that it is complained of by  the Natives, and believes that they would be  satisfied with a less punishment for the offence than  the present law allows; viz. imprisonment for seven  years, if it were certain to follow the offender. He  proposes that the punishment of a man ―convicted  of seducing the wife of another‖ shall be  imprisonment which may extend to seven years, or  a fine payable to the husband or both imprisonment  and fine. The punishment of a married woman  ―convicted of adultery‖ he would limit to  imprisonment for two years. We are not aware  whether or not he intends the difference in the terms  used to be significant of a difference in the nature of  the proof against the man and the woman  respectively.    

355. While we think that the offence of adultery  ought not to be omitted from the Code, we would  limit its cognizance to adultery committed with a

16  

married woman, and considering that there is much  weight in the last remark in Note Q, regarding the  condition of a women of this country, in deference to  it we would render the male offender alone liable to  punishment. We would, however, put the parties  accused of adultery on trial together, and empower  the Court, in the event of their conviction, to  pronounce a decree of divorce against the guilty  woman, if the husband sues for it, at the same time  that her paramour is sentenced to punishment by  imprisonment or fine. By Mr. Livingstone‘s Code, the  woman forfeits her ―matrimonial gains‖, but is not  liable to other punishment.  

356.  We would adopt Colonel Sleeman‘s  suggestion as to the punishment of the male  offender, limiting it to imprisonment not exceeding  five years, instead of seven years allowed at  present, and sanctioning the imposition of a fine  payable to the husband as an alternative, or in  addition.   

357. The punishment prescribed by the Code of  Louisiana is imprisonment not more than six  months, or fine not exceeding 2,000 dollars, or both.    By the French Code, the maximum term of  imprisonment is two years, with fine in addition,  which may amount to 2,000 francs.   

358. If the offence of adultery is admitted into the  Penal Code, there should be a provision in the Code  of Procedure to restrict the right of prosecuting to  the injured husband, agreeably to Section 2, Act II of  1845.‖19  

(emphasis supplied)  

                                                           19

COPIES OF THE SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS 76 (James C. Melvill, East India  House, 1847).

17  

These are some of the reasons that led to the enactment of  

Section 497, IPC.   

 11.  At this stage, it is important to note that by Section 199 of  

the Code of Criminal Procedure, 1898, it was only the husband  

who was to be deemed to be aggrieved by an offence  

punishable under Section 497, IPC. Thus, Section 199 stated:  

―199. Prosecution for adultery or enticing a  married woman.— No Court shall take cognizance  of an offence under section 497 or section 498 of  the Indian Penal Code (XLV of 1860), except upon a  complaint made by the husband of the woman, or, in  his absence, by some person who had care of such  woman on his behalf at the time when such offence  was committed.‖  

 12.  Even when this Code was replaced by the Code of  

Criminal Procedure (―CrPC‖), 1973, Section 198 of the CrPC,  

1973 continued the same provision with a proviso that in the  

absence of the husband, some person who had care of the  

woman on his behalf at the time when such offence was  

committed may, with the leave of the Court, make a complaint  

on his behalf. The said Section reads as follows:

18  

―198. Prosecution for offences against  marriage.— (1) No Court shall take cognizance of  an offence punishable under Chapter XX of the  Indian Penal Code (45 of 1860) except upon a  complaint made by some person aggrieved by the  offence:  

Provided that—  

(a) where such person is under the age of  eighteen years, or is an idiot or a lunatic, or  is from sickness or infirmity unable to make  a complaint, or is a woman who, according  to the local customs and manners, ought  not to be compelled to appear in public,  some other person may, with the leave of  the Court, make a complaint on his or her  behalf;  

(b) where such person is the husband and  he is serving in any of the Armed Forces of  the Union under conditions which are  certified by his Commanding Officer as  precluding him from obtaining leave of  absence to enable him to make a  complaint in person, some other person  authorised by the husband in accordance  with the provisions of sub-section (4) may  make a complaint on his behalf;  

(c) where the person aggrieved by an  offence punishable under Section 494 or  Section 495 of the Indian Penal Code (45  of 1860) is the wife, complaint may be  made on her behalf by her father, mother,  brother, sister, son or daughter or by her  father‘s or mother‘s brother or sister, or,  with the leave of the Court, by any other  person related to her by blood, marriage or  adoption.

19  

(2) For the purposes of sub-section (1), no person  other than the husband of the woman shall be  deemed to be aggrieved by any offence punishable  under Section 497 or Section 498 of the said Code:  

Provided that in the absence of the husband,  some person who had care of the woman on his  behalf at the time when such offence was  committed may, with the leave of the Court, make a  complaint on his behalf.  

(3) When in any case falling under clause (a) of the  proviso to sub-section (1), the complaint is sought to  be made on behalf of a person under the age of  eighteen years or of a lunatic by a person who has  not been appointed or declared by a competent  authority to be the guardian of the person of the  minor or lunatic, and the Court is satisfied that there  is a guardian so appointed or declared, the Court  shall, before granting the application for leave,  cause notice to be given to such guardian and give  him a reasonable opportunity of being heard.  

(4) The authorisation referred to in clause (b) of the  proviso to sub-section (1), shall be in writing, shall  be signed or otherwise attested by the husband,  shall contain a statement to the effect that he has  been informed of the allegations upon which the  complaint is to be founded, shall be countersigned  by his Commanding Officer, and shall be  accompanied by a certificate signed by that Officer  to the effect that leave of absence for the purpose of  making a complaint in person cannot for the time  being be granted to the husband.  

(5) Any document purporting to be such an  authorisation and complying with the provisions of  sub-section (4), and any document purporting to be  a certificate required by that sub-section shall,  unless the contrary is proved, be presumed to be  genuine and shall be received in evidence.

20  

(6) No Court shall take cognizance of an offence  under Section 376 of the Indian Penal Code (45 of  1860), where such offence consists of sexual  intercourse by a man with his own wife, the wife  being under eighteen years of age, if more than one  year has elapsed from the date of the commission  of the offence.  

(7) The provisions of this section apply to the  abetment of, or attempt to commit, an offence as  they apply to the offence.‖  

 At this stage, it is important to advert to some of the judgments  

of the High Courts and our Court. In Yusuf Abdul Aziz v.  

State, 1952 ILR Bom 449, a Division Bench of the Bombay  

High Court, consisting of M.C. Chagla, C.J. and P.B.  

Gajendragadkar, J. held that Section 497 of the IPC did not  

contravene Articles 14 and 15 of the Constitution. However, in  

an instructive passage, the learned Chief Justice stated:  

―…… 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 emphasises 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 favour of  doing away with Section 497 altogether.‖20  

                                                           20

1952 ILR Bombay 449, 454.

21  

 An appeal to this Court in Yusuf Abdul Aziz v. State of  

Bombay, 1954 SCR 930, (―Yusuf Abdul Aziz‖), met with the  

same result.  

This Court, through Vivian Bose, J., held that the last part of  

Section 497, which states that the wife shall not be punishable  

as an abettor of the offence of adultery, does not offend Articles  

14 and 15 in view of the saving provision contained in Article  

15(3), being a special provision made in favour of women.   

This is an instance of Homer nodding. Apart from a limited ratio  

based upon a limited argument, the judgment applies a  

constitutional provision which is obviously inapplicable as  

Article 15(3), which states that, ―nothing in this article shall  

prevent the State from making a special provision for women‖,  

would refer to the ―State‖ as either Parliament or the State  

Legislatures or the Executive Government of the Centre or the  

States, set up under the Constitution after it has come into  

force. Section 497 is, in constitutional language, an ―existing  

law‖ which continues, by virtue of Article 372(1), to apply, and

22  

could not, therefore, be said to be a law made by the ―State‖,  

meaning any of the entities referred to above.   

13.  We have noticed a judgment of the Division Bench of the  

Bombay High Court in Dattatraya Motiram More v. State of  

Bombay, AIR 1953 Bom 311, in which the Division Bench  

turned down a submission that Article 15(3) is confined to laws  

made after the Constitution of India comes into force and would  

also apply to existing law thus:  

―8. An argument was advanced by Mr. Patel that Art.  15(3) only applies to future legislation and that as far  as all laws in force before the commencement of the  Constitution were concerned, those laws can only  be tested by Art. 15(1) and not by Art. 15(1) read  with Art. 15(3). Mr. Patel contends that Art. 15(3)  permits the State in future to make a special  provision for women and children, but to the extent  the laws in force are concerned Art. 15(1) applies,  and if the laws in force are inconsistent with Art.  15(1), those laws must be held to be void. Turning  to Art. 13(1), it provides:  

―All laws in force in the territory of India  immediately before the commencement of this  Constitution, in so far as they are inconsistent  with the provisions of this Part, shall, to the  extent of such inconsistency, be void.‖  

Therefore, before a law in force can be declared to  be void it must be found to be inconsistent with one  of the provisions of Part III which deals with

23  

Fundamental Rights, and the fundamental right  which is secured to the citizen under Art. 15 is not  the unlimited right under Art. 15(1) but the right  under Art. 15(1) qualified by Art. 15(3). It is  impossible to argue that the Constitution did not  permit laws to have special provision for women if  the laws were passed before the Constitution came  into force, but permitted the Legislature to pass laws  in favour of women after the Constitution was  enacted. If a law discriminating in favour of women  is opposed to the fundamental rights of citizens,  there is no reason why such law should continue to  remain on the statute book. The whole scheme of  Art. 13 is to make laws, which are inconsistent with  Part III, void, not only if they were in force before the  commencement of the Constitution, but also if they  were enacted after the Constitution came into force.  Mr. Patel relies on the various provisos to Art. 19  and he says that in all those provisos special  mention is made to existing laws and also to the  State making laws in future. Now, the scheme of Art.  19 is different from the scheme of Art. 15. Provisos  to Art. 19 in terms deal with law whether existing or  to be made in future by the State, whereas Art.  15(3) does not merely deal with laws but deals  generally with any special provision for women and  children, and therefore it was not necessary in Art.  15(3) to mention both existing laws and laws to be  made in future. But the exception made to Art. 15(1)  by Art. 15(3) is an exception which applies both to  existing laws and to laws which the State may make  in future.‖  

14.  We are of the view that this paragraph does not represent  

the law correctly. In fact, Article 19(2)-(6) clearly refers to  

―existing law‖ as being separate from ―the State making any

24  

law‖, indicating that the State making any law would be laws  

made after the Constitution comes into force as opposed to  

―existing law‖, which are pre-constitutional laws enacted before  

the Constitution came into force, as is clear from the definition  

of ―existing law‖ contained in Article 366(10), which reads as  

under:  

―366. Definitions.—In this Constitution, unless the  context otherwise requires, the following  expressions have the meanings hereby respectively  assigned to them, that is to say—  

xxx xxx xxx   

(10) ―existing law‖ means any law, Ordinance, order,  bye-law, rule or regulation passed or made before  the commencement of this Constitution by any  Legislature, authority or person having power to  make such a law, Ordinance, order, bye-law, rule or  regulation;‖  

 15.  Article 15(3) refers to the State making laws which  

therefore, obviously cannot include existing law. Article 15(3) is  

in this respect similar to Article 16(4), which reads as follows:  

―16. Equality of opportunity in matters of public  employment.—  

xxx xxx xxx

25  

(4) Nothing in this article shall prevent the State  from making any provision for the reservation of  appointments or posts in favour of any backward  class of citizens which, in the opinion of the State, is  not adequately represented in the services under  the State.  

 The vital difference in language between Articles 15(3) and  

16(4) on the one hand, and Article 19(2)-(6) on the other, must  

thus be given effect.   

 16.  Coming back to Yusuf Abdul Aziz (supra), the difference  

in language between Article 15(3) and Article 19(2)-(6) was not  

noticed. The limited ratio of this judgment merely refers to the  

last sentence in Section 497 which it upholds. Its ratio does not  

extend to upholding the entirety of the provision or referring to  

any of the arguments made before us for striking down the  

provision as a whole.  

  17.  We then come to Sowmithri Vishnu v. Union of India  

and Anr., (1985) Supp SCC 137, (―Sowmithri Vishnu‖). In this  

case, an Article 32 petition challenged the constitutional validity  

of Section 497 of the Penal Code on three grounds which are  

set out in paragraph 6 of the judgment. Significantly, the

26  

learned counsel in that case argued that Section 497 is a  

flagrant instance of ‗gender discrimination‘, ‗legislative  

despotism‘, and ‗male chauvinism‘. This Court repelled these  

arguments stating that they had a strong emotive appeal but no  

valid legal basis to rest upon. The first argument, namely, an  

argument of discrimination was repelled by stating that the  

ambit of the offence of adultery should make the woman  

punishable as well. This was repelled by saying that such  

arguments go to the policy of the law and not its  

constitutionality. This was on the basis that it is commonly  

accepted that it is the man who is the seducer and not the  

woman. Even in 1985, the Court accepted that this archaic  

position may have undergone some change over the years, but  

it is for the legislature to consider whether Section 497 be  

amended appropriately so as to take note of the transformation  

that society has undergone.   

The Court then referred to the 42nd Law Commission Report,  

1971, which recommended the retention of Section 497, with  

the modification that, even the wife, who has sexual relations

27  

with a person other than her husband, should be made  

punishable for adultery. The dissenting note of Mrs. Anna  

Chandi was also taken note of, where the dissenter stated that  

this is the right time to consider the question whether the  

offence of adultery, as envisaged in Section 497, is in tune with  

our present-day notions of women‘s status in marriage.   

The second ground was repelled stating that a woman is the  

victim of the crime, and as the offence of adultery is considered  

as an offence against the sanctity of the matrimonial home, only  

those men who defile that sanctity are brought within the net of  

the law. Therefore, it is of no moment that Section 497 does not  

confer any right on the wife to prosecute the husband who has  

committed adultery with another woman.   

The third ground, namely, that Section 497 is underinclusive  

inasmuch as a husband who has sexual relations with an  

unmarried woman is not within the net of the law, was repelled  

stating that an unfaithful husband may invite a civil action by the  

wife for separation, and that the Legislature is entitled to deal  

with the evil where it is felt and seen most.  

28  

A challenge on the ground of Article 21 was also repelled,  

stating that the fact that a provision for hearing the wife is not  

contained in Section 497 cannot render that Section  

unconstitutional. This Court then referred to the judgment in  

Yusuf Abdul Aziz (supra) and stated that since it was a 1954  

decision, and 30 years had passed since then, this Court was  

examining the position afresh. The Court ended with the  

sermon, ―stability of marriages is not an ideal to be scorned.‖  

 18.  In V. Revathi v. Union of India and Ors., (1988) 2 SCC  

72, this Court, after referring to Sowmithri Vishnu (supra),  

repelled a similar challenge to Section 198 of the CrPC, 1973.  

After referring to Sowmithri Vishnu (supra), since Section 497,  

IPC and Section 198, CrPC go hand in hand and constitute a  

‗legislative packet‘ to deal with the offence of adultery  

committed by an outsider, the challenge to the said Section  

failed.   

 19.  International trends worldwide also indicate that very few  

nations continue to treat adultery as a crime, though most

29  

nations retain adultery for the purposes of divorce laws. Thus,  

adultery continues to be a criminal offence in Afghanistan,  

Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan,  

Philippines, United Arab Emirates, some states of the United  

States of America, Algeria, Democratic Republic of Congo,  

Egypt, Morocco, and some parts of Nigeria.   

On the other hand, a number of jurisdictions have done away  

with adultery as a crime. The People‘s Republic of China,  

Japan, Brazil, New Zealand, Australia, Scotland, the  

Netherlands, Denmark, France, Germany, Austria, the Republic  

of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago,  

Seychelles etc. are some of the jurisdictions in which it has  

been done away with. In South Korea21 and Guatemala,22  

provisions similar to Section 497 have been struck down by the  

constitutional courts of those nations.  

                                                           21

2009 Hun-Ba 17, (26.02.2015) [Constitutional Court of South Korea].  22

Expediente 936-95, (07.03.1996), República de Guatemala Corte de Constitucionalidad [Constitutional  Court of Guatemala].

30  

20.  The Supreme Court of Namibia, in an instructive  

judgment,23 went into whether the criminal offence of adultery  

would protect marriages and reduce the incidence of adultery. It  

said:  

 ―[45] But does the action protect marriages from  adultery? For the reasons articulated by both the  SCA and the Constitutional Court, I do not consider  that the action can protect marriage as it does not  strengthen a weakening marriage or breathe life into  one which is in any event disintegrating. [DE v. RH,  2015 (5) SA 83 (CC) (Constitutional Court of South  Africa) para 49]. The reasoning set out by the SCA  is salutary and bears repetition:    

‗But the question is: if the protection of marriage  is one of its main goals, is the action successful  in achieving that goal? The question becomes  more focused when the spotlight is directed at  the following considerations:    

(a) First of all, as was pointed out by the  German Bundesgericht in the passage  from the judgment (JZ 1973, 668) from  which I have quoted earlier, although  marriage is —  

‗a human institution which is  regulated by law and protected by  the Constitution and which, in turn,  creates genuine legal duties. Its  essence . . . consists in the  

                                                           23

James Sibongo v. Lister Lutombi Chaka and Anr. (Case No. SA77-14) (19.08.2016) [Supreme Court of  Namibia].

31  

readiness, founded in morals, of the  parties to the marriage to create and  to maintain it.‘  

If the parties to the marriage have lost  that moral commitment, the marriage will  fail, and punishment meted out to a third  party is unlikely to change that.    (b) Grave doubts are expressed by many  about the deterrent effect of the action.  In most other countries it was concluded  that the action (no longer) has any  deterrent effect and I have no reason to  think that the position in our society is all  that different. Perhaps one reason is that  adultery occurs in different  circumstances. Every so often it  happens without any premeditation,  when deterrence hardly plays a role. At  the other end of the scale, the adultery is  sometimes carefully planned and the  participants are confident that it will not  be discovered. Moreover, romantic  involvement between one of the spouses  and a third party can be as devastating  to the marital relationship as (or even  more so than) sexual intercourse.    (c) If deterrence is the main purpose,  one would have thought that this could  better be achieved by retaining the  imposition of criminal sanctions or by the  grant of an interdict in favour of the  innocent spouse against both the guilty  spouse and the third party to prevent  future acts of adultery. But, as we know,  the crime of adultery had become  abrogated through disuse exactly 100

32  

years ago while an interdict against  adultery has never been granted by our  courts (see, for example, Wassenaar v  Jameson, supra at 352H – 353H). Some  of the reasons given in Wassenaar as to  why an interdict would not be  appropriate are quite enlightening and  would apply equally to the  appropriateness of a claim for damages.  These include, firstly, that an interdict  against the guilty spouse is not possible  because he or she commits no delict.  Secondly, that as against a third party —  

‗it interferes with, and restricts the  rights and freedom that the third  party ordinarily has of using and  disposing of his body as he  chooses; . . . it also affects the  relationship of the third party with  the claimant's spouse, who is and  cannot be a party to the interdict,  and therefore indirectly interferes  with, and restricts her rights and  freedom of, using and disposing of  her body as she chooses‘. [At  353E.]  

 (d) In addition the deterrence argument  seems to depart from the assumption  that adultery is the cause of the  breakdown of a marriage, while it is now  widely recognised that causes for the  breakdown in marriages are far more  complex. Quite frequently adultery is  found to be the result and not the cause  of an unhappy marital relationship.  Conversely stated, a marriage in which  the spouses are living in harmony is

33  

hardly likely to be broken up by a third  party.‘‖24    

21.  Coming back to Section 497, it is clear that in order to  

constitute the offence of adultery, the following must be  

established:   

(i) Sexual intercourse between a married woman and a  

man who is not her husband;  

(ii) The man who has sexual intercourse with the married  

woman must know or has reason to believe that she  

is the wife of another man;    

(iii) Such sexual intercourse must take place with her  

consent, i.e., it must not amount to rape;  

(iv) Sexual intercourse with the married woman must  

take place without the consent or connivance of her  

husband.  

22.  What is apparent on a cursory reading of these  

ingredients is that a married man, who has sexual intercourse  

                                                           24

Id., 17-19.

34  

with an unmarried woman or a widow, does not commit the  

offence of adultery. Also, if a man has sexual intercourse with a  

married woman with the consent or connivance of her husband,  

he does not commit the offence of adultery. The consent of the  

woman committing adultery is material only for showing that the  

offence is not another offence, namely, rape.  

 23.  The background in which this provision was enacted now  

needs to be stated. In 1860, when the Penal Code was  

enacted, the vast majority of the population in this country,  

namely, Hindus, had no law of divorce as marriage was  

considered to be a sacrament. Equally, a Hindu man could  

marry any number of women until 1955. It is, therefore, not far  

to see as to why a married man having sexual intercourse with  

an unmarried woman was not the subject matter of the offence.  

Since adultery did not exist as a ground in divorce law, there  

being no divorce law, and since a man could marry any number  

of wives among Hindus, it was clear that there was no sense in  

punishing a married man in having sex with an unmarried  

woman as he could easily marry her at a subsequent point in

35  

time. Two of the fundamental props or bases of this archaic law  

have since gone. Post 1955-1956, with the advent of the ―Hindu  

Code‖, so to speak, a Hindu man can marry only one wife; and  

adultery has been made a ground for divorce in Hindu Law.   

Further, the real heart of this archaic law discloses itself when  

consent or connivance of the married woman‘s husband is  

obtained – the married or unmarried man who has sexual  

intercourse with such a woman, does not then commit the  

offence of adultery. This can only be on the paternalistic notion  

of a woman being likened to chattel, for if one is to use the  

chattel or is licensed to use the chattel by the ―licensor‖,  

namely, the husband, no offence is committed. Consequently,  

the wife who has committed adultery is not the subject matter of  

the offence, and cannot, for the reason that she is regarded  

only as chattel, even be punished as an abettor. This is also for  

the chauvinistic reason that the third-party male has ‗seduced‘  

her, she being his victim. What is clear, therefore, is that this  

archaic law has long outlived its purpose and does not square  

with today‘s constitutional morality, in that the very object with

36  

which it was made has since become manifestly arbitrary,  

having lost its rationale long ago and having become in today‘s  

day and age, utterly irrational. On this basis alone, the law  

deserves to be struck down, for with the passage of time,  

Article 14 springs into action and interdicts such law as being  

manifestly arbitrary. That legislation can be struck down on the  

ground of manifest arbitrariness is no longer open to any doubt,  

as has been held by this Court in Shayara Bano v. Union of  

India and Ors., (2017) 9 SCC 1, as follows:  

―101. …… Manifest arbitrariness, therefore, must be  something done by the legislature capriciously,  irrationally and/or without adequate determining  principle. Also, when something is done which is  excessive and disproportionate, such legislation  would be manifestly arbitrary. We are, therefore, of  the view that arbitrariness in the sense of manifest  arbitrariness as pointed out by us above would  apply to negate legislation as well under Article 14.‖  

24.  It is clear, therefore, that the ostensible object of Section  

497, as pleaded by the State, being to protect and preserve the  

sanctity of marriage, is not in fact the object of Section 497 at  

all, as has been seen hereinabove. The sanctity of marriage  

can be utterly destroyed by a married man having sexual

37  

intercourse with an unmarried woman or a widow, as has been  

seen hereinabove. Also, if the husband consents or connives at  

such sexual intercourse, the offence is not committed, thereby  

showing that it is not sanctity of marriage which is sought to be  

protected and preserved, but a proprietary right of a husband.  

Secondly, no deterrent effect has been shown to exist, or ever  

to have existed, which may be a legitimate consideration for a  

State enacting criminal law. Also, manifest arbitrariness is writ  

large even in cases where the offender happens to be a  

married woman whose marriage has broken down, as a result  

of which she no longer cohabits with her husband, and may in  

fact, have obtained a decree for judicial separation against her  

husband, preparatory to a divorce being granted. If, during this  

period, she has sex with another man, the other man is  

immediately guilty of the offence.  

 25.  The aforesaid provision is also discriminatory and  

therefore, violative of Article 14 and Article 15(1). As has been  

held by us hereinabove, in treating a woman as chattel for the  

purposes of this provision, it is clear that such provision

38  

discriminates against women on grounds of sex only, and must  

be struck down on this ground as well. Section 198, CrPC is  

also a blatantly discriminatory provision, in that it is the husband  

alone or somebody on his behalf who can file a complaint  

against another man for this offence. Consequently, Section  

198 has also to be held constitutionally infirm.   

 26.  We have, in our recent judgment in Justice K.S.  

Puttaswamy (Retd.) and Anr. v. Union of India and Ors.,  

(2017) 10 SCC 1, (―Puttaswamy‖), held:   

―108.   Over the last four decades, our constitutional  jurisprudence has recognised the inseparable  relationship between protection of life and liberty  with dignity. Dignity as a constitutional value finds  expression in the Preamble. The constitutional  vision seeks the realisation of justice (social,  economic and political); liberty (of thought,  expression, belief, faith and worship); equality (as a  guarantee against arbitrary treatment of individuals)  and fraternity (which assures a life of dignity to  every individual). These constitutional precepts exist  in unity to facilitate a humane and compassionate  society. The individual is the focal point of the  Constitution because it is in the realisation of  individual rights that the collective well-being of the  community is determined. Human dignity is an  integral part of the Constitution. Reflections of  dignity are found in the guarantee against  arbitrariness (Article 14), the lamps of freedom

39  

(Article 19) and in the right to life and personal  liberty (Article 21).‖  

 xxx xxx xxx     

―298.  Privacy of the individual is an essential aspect  of dignity. Dignity has both an intrinsic and  instrumental value. As an intrinsic value, human  dignity is an entitlement or a constitutionally  protected interest in itself. In its instrumental facet,  dignity and freedom are inseparably intertwined,  each being a facilitative tool to achieve the other.  The ability of the individual to protect a zone of  privacy enables the realisation of the full value of life  and liberty. Liberty has a broader meaning of which  privacy is a subset. All liberties may not be  exercised in privacy. Yet others can be fulfilled only  within a private space. Privacy enables the  individual to retain the autonomy of the body and  mind. The autonomy of the individual is the ability to  make decisions on vital matters of concern to life.  Privacy has not been couched as an independent  fundamental right. But that does not detract from the  constitutional protection afforded to it, once the true  nature of privacy and its relationship with those  fundamental rights which are expressly protected is  understood. Privacy lies across the spectrum of  protected freedoms. The guarantee of equality is a  guarantee against arbitrary State action. It prevents  the State from discriminating between individuals.  The destruction by the State of a sanctified personal  space whether of the body or of the mind is violative  of the guarantee against arbitrary State action.  Privacy of the body entitles an individual to the  integrity of the physical aspects of personhood. The  intersection between one's mental integrity and  privacy entitles the individual to freedom of thought,  the freedom to believe in what is right, and the  freedom of self-determination. When these

40  

guarantees intersect with gender, they create a  private space which protects all those elements  which are crucial to gender identity. The family,  marriage, procreation and sexual orientation are all  integral to the dignity of the individual. Above all, the  privacy of the individual recognises an inviolable  right to determine how freedom shall be exercised.  An individual may perceive that the best form of  expression is to remain silent. Silence postulates a  realm of privacy. An artist finds reflection of the soul  in a creative endeavour. A writer expresses the  outcome of a process of thought. A musician  contemplates upon notes which musically lead to  silence. The silence, which lies within, reflects on  the ability to choose how to convey thoughts and  ideas or interact with others. These are crucial  aspects of personhood. The freedoms under Article  19 can be fulfilled where the individual is entitled to  decide upon his or her preferences. Read in  conjunction with Article 21, liberty enables the  individual to have a choice of preferences on  various facets of life including what and how one will  eat, the way one will dress, the faith one will  espouse and a myriad other matters on which  autonomy and self-determination require a choice to  be made within the privacy of the mind. The  constitutional right to the freedom of religion under  Article 25 has implicit within it the ability to choose a  faith and the freedom to express or not express  those choices to the world. These are some  illustrations of the manner in which privacy facilitates  freedom and is intrinsic to the exercise of liberty.  The Constitution does not contain a separate article  telling us that privacy has been declared to be a  fundamental right. Nor have we tagged the  provisions of Part III with an alpha-suffixed right to  privacy: this is not an act of judicial redrafting.  Dignity cannot exist without privacy. Both reside  within the inalienable values of life, liberty and

41  

freedom which the Constitution has recognised.  Privacy is the ultimate expression of the sanctity of  the individual. It is a constitutional value which  straddles across the spectrum of fundamental rights  and protects for the individual a zone of choice and  self-determination.‖    xxx xxx xxx     

―482.  Shri Sundaram has argued that rights have to  be traced directly to those expressly stated in the  fundamental rights chapter of the Constitution for  such rights to receive protection, and privacy is not  one of them. It will be noticed that the dignity of the  individual is a cardinal value, which is expressed in  the Preamble to the Constitution. Such dignity is not  expressly stated as a right in the fundamental rights  chapter, but has been read into the right to life and  personal liberty. The right to live with dignity is  expressly read into Article 21 by the judgment  in Jolly George Varghese v. Bank of Cochin [Jolly  George Varghese v. Bank of Cochin, (1980) 2 SCC  360], at para 10. Similarly, the right against bar  fetters and handcuffing being integral to an  individual's dignity was read into Article 21 by the  judgment in Sunil Batra v. Delhi Admn. [Sunil  Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC  (Cri) 155], at paras 192, 197-B, 234 and 241 and  Prem Shankar Shukla v. Delhi Admn. [Prem  Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 :  1980 SCC (Cri) 815], at paras 21 and 22. It is too  late in the day to canvas that a fundamental right  must be traceable to express language in Part III of  the Constitution. As will be pointed out later in this  judgment, a Constitution has to be read in such a  way that words deliver up principles that are to be  followed and if this is kept in mind, it is clear that the  concept of privacy is contained not merely in

42  

personal liberty, but also in the dignity of the  individual.‖    xxx xxx xxx     

―525.  But most important of all is the cardinal value  of fraternity which assures the dignity of the  individual. [In 1834, Jacques-Charles DuPont de  l'Eure associated the three terms liberty, equality  and fraternity together in the Revue Républicaine,  which he edited, as follows: ―Any man aspires to  liberty, to equality, but he cannot achieve it without  the assistance of other men, without fraternity.‖  Many of our decisions recognise human dignity as  being an essential part of the fundamental rights  chapter. For example, see Prem Shankar Shukla v.  Delhi Admn., (1980) 3 SCC 526 at para 21, Francis  Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at  paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of  India, (1984) 3 SCC 161 at para 10, Maharashtra  University of Health Sciences v. Satchikitsa  Prasarak Mandal, (2010) 3 SCC 786 at para  37, Shabnam v. Union of India, (2015) 6 SCC 702 at  paras 12.4 and 14 and Jeeja Ghosh v. Union of  India, (2016) 7 SCC 761 at para 37.] The dignity of  the individual encompasses the right of the  individual to develop to the full extent of his  potential. And this development can only be if an  individual has autonomy over fundamental personal  choices and control over dissemination of personal  information which may be infringed through an  unauthorised use of such information. It is clear that  Article 21, more than any of the other articles in the  fundamental rights chapter, reflects each of these  constitutional values in full, and is to be read in  consonance with these values and with the  international covenants that we have referred to. In  the ultimate analysis, the fundamental right to  privacy, which has so many developing facets, can

43  

only be developed on a case-to-case basis.  Depending upon the particular facet that is relied  upon, either Article 21 by itself or in conjunction with  other fundamental rights would get attracted.‖  

The dignity of the individual, which is spoken of in the Preamble  

to the Constitution of India, is a facet of Article 21 of the  

Constitution. A statutory provision belonging to the hoary past  

which demeans or degrades the status of a woman obviously  

falls foul of modern constitutional doctrine and must be struck  

down on this ground also.    

 27.  When we come to the decision of this Court in Yusuf  

Abdul Aziz (supra), it is clear that this judgment also does not,  

in any manner, commend itself or keep in tune with modern  

constitutional doctrine. In any case, as has been held above, its  

ratio is an extremely limited one as it upheld a wife not being  

punishable as an abettor which is contained in Section 497,  

IPC. The focus on whether the provision as a whole would be  

constitutionally infirm was not there in the aforesaid judgment.   

At this stage, it is necessary to advert to Chief Justice Chagla‘s  

foresight in the Bombay High Court judgment which landed up

44  

in appeal before this Court in Yusuf Abdul Aziz’s (supra).  

Chief Justice Chagla had stated that since the underlying idea  

of Section 497 is that wives are properties of their husbands,  

Section 497 should not find a place in any modern Code of law,  

and is an argument in favour of doing away with Section 497  

altogether. The day has long since arrived when the Section  

does, in fact, need to be done away with altogether, and is  

being done away with altogether.   

 28.  In Sowmithri Vishnu (supra), this Court upheld Section  

497 while repelling three arguments against its continuance, as  

has been noticed hereinabove. This judgment also must be  

said to be swept away by the tidal wave of recent judgments  

expanding the scope of the fundamental rights contained in  

Articles 14, 15, and 21. Ancient notions of the man being the  

seducer and the woman being the victim permeate the  

judgment, which is no longer the case today. The moving times  

have not left the law behind as we have just seen, and so far as  

engaging the attention of law makers when reform of penal law  

is undertaken, we may only hasten to add that even when the

45  

CrPC was fully replaced in 1973, Section 198 continued to be  

on the statute book. Even as of today, Section 497 IPC  

continues to be on the statute book. When these sections are  

wholly outdated and have outlived their purpose, not only does  

the maxim of Roman law, cessante ratione legis, cessat ipsa  

lex, apply to interdict such law, but when such law falls foul of  

constitutional guarantees, it is this Court‘s solemn duty not to  

wait for legislation but to strike down such law. As recently as in  

Shayara Bano (supra), it is only the minority view of Khehar,  

C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to  

change legislatively by way of social reform. The majority view  

was the exact opposite, which is why Triple Talaq was found  

constitutionally infirm and struck down by the majority. Also, we  

are of the view that the statement in this judgment that stability  

of marriages is not an ideal to be scorned, can scarcely be  

applied to this provision, as we have seen that marital stability  

is not the object for which this provision was enacted. On all  

these counts, therefore, we overrule the judgment in Sowmithri  

Vishnu (supra). Equally, the judgment in V. Revathi (supra),  

which upheld the constitutional validity of Section 198 must, for

46  

similar reasons, be held to be no longer good law. We,  

therefore, declare that Section 497 of the Indian Penal Code,  

1860 and Section 198 of the Code of Criminal Procedure, 1973  

are violative of Articles 14, 15(1), and 21 of the Constitution of  

India and are, therefore, struck down as being invalid.   

               ……………………………..J.         (R.F. Nariman)         

New Delhi;  September 27, 2018.

1    

REPORTABLE    

IN THE SUPREME COURT OF INDIA  CRIMINAL ORIGINAL JURISDICTION  

 WRIT PETITION (CRIMINAL) NO 194 OF 2017  

JOSEPH SHINE                                ...Petitioner   VERSUS  

   UNION OF INDIA                                                             ...Respondent      

J U D G M E N T  

Index   

A Gender: the discursive struggle  

B Judicial discourse on adultery   

C Relics of the past  

D Across frontiers  

E Confronting patriarchy  

F ‘The Good Wife’  

 F.1 The entrapping cage  

G     Denuding identity - women as sexual property   

       G.1 Exacting fidelity: the intimacies of marriage  

H     Towards transformative justice

PART A   

2    

Dr Dhananjaya Y Chandrachud, J  

A Gender: the discursive struggle   

1 Our Constitution is a repository of rights, a celebration of myriad freedoms  

and liberties. It envisages the creation of a society where the ideals of equality,  

dignity and freedom triumph over entrenched prejudices and injustices. The  

creation of a just, egalitarian society is a process. It often involves the  

questioning and obliteration of parochial social mores which are antithetical to  

constitutional morality. The case at hand enjoins this constitutional court to make  

an enquiry into the insidious permeation of patriarchal values into the legal order  

and its role in perpetuating gender injustices.  

2 Law and society are intrinsically connected and oppressive social values  

often find expression in legal structures. The law influences society as well but  

societal values are slow to adapt to leads shown by the law. The law on adultery  

cannot be construed in isolation. To fully comprehend its nature and impact,  

every legislative provision must be understood as a ‘discourse’ about social  

structuring.1 However, the discourse of law is not homogenous.2 In the context  

particularly of Section 497, it regards individuals as ‘gendered citizens’.3 In doing  

so, the law creates and ascribes gender roles based on existing societal  

                                                           1 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications  (1996) at page 40  

2 Ibid at page 41  3 Ibid

PART A   

3    

stereotypes.  An understanding of law as a ‘discourse’ would lead to the  

recognition of the role of law in creating ‘gendered identities’.4  

3 Over the years, legal reform has had a significant role in altering the  

position of women in societal orderings. This is seen in matters concerning  

inheritance and in the protection against domestic violence. However, in some  

cases, the law operates to perpetuate an unequal world for women. Thus,  

depending on the manner in which it is used, law can act as an agent of social  

change as well as social stagnation. Scholar Patricia Williams, who has done  

considerable work on the critical race theory, is sanguine about the possibility of  

law engendering progressive social transformation:  

“It is my deep belief that theoretical legal understanding and  

social transformation need not be oxymoronic”5  

The Constitution, both in text and interpretation, has played a significant role in  

the evolution of law from being an instrument of oppression to becoming one of  

liberation. Used in a liberal perspective, the law can enhance democratic values.  

As an instrument which preserves the status quo on the other hand, the law  

preserves stereotypes and legitimises unequal relationships based on pre-

existing societal discrimination. Constantly evolving, law operates as an  

important “site for discursive struggle”, where ideals compete and new visions  

are shaped.6.  In regarding law as a “site of discursive struggle”, it becomes  

                                                           4 Ibid  5 Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard University Press (1991)  6 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications  (1996) at page 41

PART A   

4    

imperative to examine the institutions and structures within which legal discourse  

operates:7   

“The idea of neutral dialogue is an idea which denies history,  

denies structure, denies the positioning of subjects.”8  

 In adjudicating on the rights of women, the Court must not lose sight of the  

institutions and values which have forced women to a shackled existence so far.  

To fully recognise the role of law and society in shaping the lives and identities of  

women, is also to ensure that patriarchal social values and legal norms are not  

permitted to further obstruct the exercise of constitutional rights by the women of  

our country.  

4 In the preceding years, the Court has evolved a jurisprudence of rights-  

granting primacy to the right to autonomy, dignity and individual choice. The right  

to sexual autonomy and privacy has been granted the stature of a Constitutional  

right. In confronting the sources of gendered injustice which threaten the rights  

and freedoms promised in our Constitution, we set out to examine the validity of  

Section 497 of the Indian Penal Code. In doing so, we also test the  

constitutionality of moral and societal regulation of women and their intimate lives  

through the law.  

                                                           7 Ibid  8 Gayatri Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogies, Routledge (1990)

PART B   

5    

B Judicial discourse on adultery   

 5 This Court, on earlier occasions, has tested the constitutionality of Section  

497 of the Indian Penal Code as well as Section 198(2) of the Code of Criminal  

Procedure.  

Section 497 reads thus:  

“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.”  

Section 198(2) of the Code of Criminal Procedure reads thus:  

“(2) For the purposes of sub- section (1), no person other  

than the husband of the woman shall be deemed to be  

aggrieved by any offence punishable under section 497 or  

section 498 of the said Code: Provided that in the absence of  

the husband, some person who had care of the woman on his  

behalf at the time when such offence was com- mitted may,  

with the leave of the Court, make a complaint on his behalf.”  

   6 The decision of the Constitution Bench in Yusuf Abdul Aziz v State of  

Bombay9, arose from a case where the appellant was being prosecuted for  

adultery under Section 497. On a complaint being filed, he moved the High Court  

to determine the constitutional question about the validity of the provision, under  

                                                           9 1954 SCR 930

PART B   

6    

Article 228. The High Court decided against the appellant10, but Chief Justice  

Chagla made an observation about the assumption underlying 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 the offence is only cognizable with the  

consent of the husband emphasises 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, when women were  

looked upon as property by their husbands.”  

A narrow challenge was addressed before this Court. The judgment of Justice  

Vivian Bose records the nature of the challenge:   

“3. Under Section 497 the offence of adultery can only be  

committed by a man but in the absence of any provision to  

the contrary the woman would be punishable as an abettor.   

The last sentence in Section 497 prohibits this. It runs—  

“In such case the wife shall not be punishable as an abettor”.  

It is said that this offends Articles 14 and 15.”  

Hence, the challenge was only to the prohibition on treating the wife as an  

abettor. It was this challenge which was dealt with and repelled on the ground  

that Article 14 must be read with the other provisions of Part III which prescribe  

the ambit of the fundamental rights. The prohibition on treating the wife as an  

abettor was upheld as a special provision which is saved by Article 15(3). The  

conclusion was that:  

“5. Article 14 is general and must be read with the other  

provisions which set out the ambit of fundamental rights. Sex  

is a sound classification and although there can be no  

discrimination in general on that ground, the Constitution itself  

provides for special provisions in the case of women and  

children. The two articles read together validate the impugned  

clause in Section 497 of the Indian Penal Code.”    

                                                           10 AIR 1951 Bom 470

PART B   

7    

7 The challenge was to a limited part of Section 497: that which prohibited a  

woman from being prosecuted as an abettor. Broader issues such as whether (i)  

the punishment for adultery violates Article 21; (ii) the statutory provision suffers  

from manifest arbitrariness; (iii) the legislature has, while ostensibly protecting  

the sanctity of marriage, invaded the dignity of women; and (iv) Section 497  

violates Article 15(1) by enforcing gender stereotypes were neither addressed  

before this Court nor were they dealt with.  

This Court construed the exemption granted to women from criminal sanctions as  

a ‘special provision’ for the benefit of women and thus, protected under Article  

15(3) of the Constitution. In Union of India v Elphinstone Spinning and  

Weaving Co. Ltd,11 a Constitution Bench of this Court held:  

“17…When the question arises as to the meaning of a certain  

provision in a statute it is not only legitimate but proper to  

read that provision in its context. The context means the  

statute as a whole, the previous state of law, other statutes in  

pari materia, the general scope of the statute and the mischief  

that it was intended to remedy…”12  

It is of particular relevance to examine the mischief that the provision intends to  

remedy. The history of Section 497 reveals that the law on adultery was for the  

benefit of the husband, for him to secure ownership over the sexuality of his wife.  

It was aimed at preventing the woman from exercising her sexual agency. Thus,  

Section 497 was never conceived to benefit women. In fact, the provision is  

steeped in stereotypes about women and their subordinate role in marriage. The  

                                                           11 (2001) 4 SCC 139  12 Ibid. at page 164

PART B   

8    

patriarchal underpinnings of the law on adultery become evident when the  

provision is considered as a whole.  

8 In the subsequent decision of the three judge Bench in Sowmithri Vishnu  

v Union of India13, the court proceeded on the basis that the earlier decision in  

Yusuf Abdul Aziz had upheld Section 497 against a challenge based on Articles  

14 and 15 of the Constitution. This is not a correct reading or interpretation of the  

judgment.  

9 Sowmithri Vishnu did as a matter of fact consider the wider constitutional  

challenge on the ground that after the passage of thirty years, “particularly in the  

light of the alleged social transformation in the behavioural pattern of women in  

matters of sex”, it had become necessary that the matter be revisited. Sowmithri  

Vishnu arose in a situation where a petition for divorce by the appellant against  

her husband on the ground of desertion was dismissed with the finding that it  

was the appellant who had deserted her husband. The appellant’s husband then  

sued for divorce on the ground of desertion and adultery. Faced with this petition,  

the appellant urged that a decree for divorce on the ground of desertion may be  

passed on the basis of the findings in the earlier petition. She, however, opposed  

the effort of the husband to urge the ground of adultery. While the trial court  

accepted the plea of the husband to assert the ground of adultery, the High Court  

held in revision that a decree of divorce was liable to be passed on the ground of  

desertion, making it unnecessary to inquire into adultery. While the petition for                                                              13 1985 Supp SCC 137

PART B   

9    

divorce was pending against the appellant, her husband filed a complaint under  

Section 497 against the person with whom the appellant was alleged to be in an  

adulterous relationship. The appellant then challenged the constitutional validity  

of Section 497.  

The judgment of the three judge Bench indicates that three grounds of challenge  

were addressed before this Court : first, while Section 497 confers a right on the  

husband to prosecute the adulterer, it does not confer upon the wife to prosecute  

the woman with whom her husband has committed adultery; second, Section  

497 does not confer a right on the wife to prosecute her husband who has  

committed adultery with another woman; and third, Section 497 does not cover  

cases where a man has sexual relations with an unmarried woman. The  

submission before this Court was that the classification under Section 497 was  

irrational and ‘arbitrary’. Moreover, it was also urged that while facially, the  

provision appears to be beneficial to a woman, it is in reality based on a notion of  

paternalism “which stems from the assumption that women, like chattels, are the  

property of men.”  

10 The decision in Sowmithri Vishnu dealt with the constitutional challenge  

by approaching the discourse on the denial of equality in formal, and rather  

narrow terms. Chandrachud, CJ speaking for the three judge Bench observed  

that by definition, the offence of adultery can be committed by a man and not by  

a woman. The court construed the plea of the petitioner as amounting to a

PART B   

10    

suggestion that the definition should be recast in a manner that would make the  

offence gender neutral. The court responded by observing that this was a matter  

of legislative policy and that the court could invalidate the provision only if a  

constitutional violation is established. The logic of the court, to the effect that  

extending the ambit of a statutory definition is a matter which requires legislative  

change is unexceptionable. The power to fashion an amendment to the law lies  

with the legislature. But this only leads to the conclusion that the court cannot  

extend the legislative prescription by making the offence gender neutral. It does  

not answer the fundamental issue as to whether punishment for adultery is valid  

in constitutional terms.  The error in Sowmithri Vishnu lies in holding that there  

was no constitutional infringement.  The judgment postulates that:   

“7…It is commonly accepted that it is the man who is the  

seducer and not the woman. This position may have  

undergone some change over the years but it is for the  

Legislature to consider whether Section 497 should be  

amended appropriately so as to take note of the  

“transformation” which the society has undergone. The Law  

Commission of India in its Forty-second Report, 1971,  

recommended the retention of Section 497 in its present form  

with the modification that, even the wife, who has sexual  

relations with a person other than her husband, should be  

made punishable for adultery. The suggested modification  

was not accepted by the Legislature. Mrs Anna Chandi, who  

was in the minority, voted for the deletion of Section 497 on  

the ground that “it is the right time to consider the question  

whether the offence of adultery as envisaged in Section 497  

is in tune with our present-day notions of woman's status in  

marriage”. The report of the Law Commission shows that  

there can be two opinions on the desirability of retaining a  

provision like the one contained in Section 497 on the statute  

book. But, we cannot strike down that section on the ground  

that it is desirable to delete it.”14  

                                                           14 Ibid. at page 141

PART B   

11    

These observations indicate that the constitutional challenge was addressed  

purely from the perspective of the argument that Section 497 is not gender  

neutral, in allowing only the man but not to the woman in a sexual relationship to  

be prosecuted. The court proceeded on the assumption, which it regards as  

“commonly accepted that it is the man who is the seducer and not the woman.”  

Observing that this position may have undergone some change, over the years,  

the decision holds that these are matters for the legislature to consider and that  

the desirability of deleting Section 497 is not a ground for invalidation.  

11 The decision in Sowmithri Vishnu has left unanswered the fundamental  

challenge which was urged before the Court. Under Article 14, the challenge was  

that the statutory provision treats a woman purely as the property of her  

husband. That a woman is regarded no more than as a possession of her  

husband is evidenced in Section 497, in more than one context. The provision  

stipulates that a man who has sexual intercourse with the wife of another will not  

be guilty of offence if the husband of the woman were to consent or, (worse still,  

to connive. In this, it is evident that the legislature attributes no agency to the  

woman. Whether or not a man with whom she has engaged in sexual intercourse  

is guilty of an offence depends exclusively on whether or not her husband is a  

consenting individual. No offence exists if her husband were to consent. Even if  

her husband were to connive at the act, no offence would be made out. The  

mirror image of this constitutional infirmity is that the wife of the man who has  

engaged in the act has no voice or agency under the statute. Again, the law does

PART B   

12    

not make it an offence for a married man to engage in an act of sexual  

intercourse with a single woman. His wife is not regarded by the law as a person  

whose agency and dignity is affected. The underlying basis of not penalising a  

sexual act by a married man with a single woman is that she (unlike a married  

woman) is not the property of a man (as the law would treat her to be if she is  

married). Arbitrariness is writ large on the provision. The problem with Section  

497 is not just a matter of under inclusion. The court in Sowmithri Vishnu  

recognised that an under-inclusive definition is not necessarily discriminatory and  

that the legislature is entitled to deal with the evil where it is felt and seen the  

most. The narrow and formal sense in which the provisions of Article 14 have  

been construed is evident again from the following observations:   

“8…The contemplation of the law, evidently, is that the wife,  

who is involved in an illicit relationship with another man, is a  

victim and not the author of the crime. The offence of  

adultery, as defined in Section 497, is considered by the  

Legislature as an offence against the sanctity of the  

matrimonial home, an act which is committed by a man, as it  

generally is. Therefore, those men who defile that sanctity are  

brought within the net of the law. In a sense, we revert to the  

same point: Who can prosecute whom for which offence  

depends, firstly, on the definition of the offence and, secondly,  

upon the restrictions placed by the law of procedure on the  

right to prosecute.”15  

The decision of the three judge Bench does not address the central challenge to  

the validity of Section 497. Section 497, in its effort to protect the sanctity of  

marriage, has adopted a notion of marriage which does not regard the man and  

the woman as equal partners. It proceeds on the subjection of the woman to the  

will of her husband. In doing so, Section 497 subordinates the woman to a  

                                                           15 Ibid. at page 142

PART B   

13    

position of inferiority thereby offending her dignity, which is the core of Article 21.  

Significantly, even the challenge under Article 21 was addressed on behalf of the  

petitioner in that case in a rather narrow frame. The argument before this Court  

was that at the trial involving an offence alleged to have been committed under  

Section 497, the woman with whom the accused is alleged to have had sexual  

intercourse would have no right of being heard. It was this aspect alone which  

was addressed in Sowmithri Vishnu when the court held that such a right of  

being heard can be read in an appropriate case. Ultimately, the court held that:  

“12…It is better, from the point of view of the interests of the  

society, that at least a limited class of adulterous relationships  

is punishable by law. Stability of marriages is not an ideal to  

be scorned.”16  

Sowmithri Vishnu has thus proceeded on the logic that in specifying an offence,  

it is for the legislature to define what constitutes the offence. Moreover, who can  

prosecute and who can be prosecuted, are matters which fall within the domain  

of the law. The inarticulate major premise of the judgment is that prosecution for  

adultery is an effort to protect the stability of marriages and if the legislature has  

sought to prosecute only a limited class of ‘adulterous relationships’, its choice  

could not be questioned. ‘Sowmithri Vishnu’ fails to deal with the substantive  

aspects of constitutional jurisprudence which have a bearing on the validity of  

Section 497: the guarantee of equality as a real protection against arbitrariness,  

the guarantee of life and personal liberty as an essential recognition of dignity,  

autonomy and privacy and above all gender equality as a cornerstone of a truly  

equal society. For these reasons, the decision in Sowmithri Vishnu cannot be  

                                                           16 Ibid. at page 144

PART B   

14    

regarded as a correct exposition of the constitutional position. Sowmithri Vishnu  

is overruled.  

12 The decision of a two judge Bench in V Revathi v Union of India17  

involved a challenge to Section 497 (read with Section 198(2) of the Code of  

Criminal Procedure) which disables a wife from prosecuting her husband for  

being involved in an adulterous relationship. The court noted that Section 497  

permits neither the husband of the offending wife to prosecute her nor does it  

permit the wife to prosecute her offending husband for being disloyal. This   

formal sense of equality found acceptance by the court. The challenge was  

repelled by relying on the decision in Sowmithri Vishnu. Observing that Section  

497 and Section 198(2) constitute a “legislative packet”, the court observed that  

the provision does not allow either the wife to prosecute an erring husband or a  

husband to prosecute the erring wife. In the view of the court, this indicated that  

there is no discrimination on the ground of sex. In the view of the court :  

“5…The law does not envisage the punishment of any of the  

spouses at the instance of each other. Thus there is no  

discrimination against the woman insofar as she is not  

permitted to prosecute her husband. A husband is not  

permitted because the wife is not treated as an offender in the  

eye of law. The wife is not permitted as Section 198(1) read  

with Section 198(2) does not permit her to do so. In the  

ultimate analysis the law has meted out even-handed justice  

to both of them in the matter of prosecuting each other or  

securing the incarceration of each other. Thus no  

discrimination has been practised in circumscribing the scope  

of Section 198(2) and fashioning it so that the right to  

prosecute the adulterer is restricted to the husband of the  

adulteress but has not been extended to the wife of the  

adulterer.”18

                                                           17 (1988) 2 SCC 72  18 Ibid. at page 76

PART C   

15    

13 The decision in Revathi is a reiteration of Sowmithri Vishnu. It applies  

the doctrine of equality and the prohibition against discrimination on the ground  

of sex in a formalistic sense. The logic of the judgment is that since neither of the  

spouses (man or woman) can prosecute the erring spouse, the provision does  

not discriminate on the ground of sex. Apart from reading equality in a narrow  

confine, the judgment does not deal with crucial aspects bearing on the  

constitutionality of the provision.  Revathi, like Sowmithri Vishnu does not lay  

down the correct legal principle.   

C  Relics of the past  

“Our Massachusetts magistracy…have not been bold to put in  

force the extremity of our righteous law against her. The  

penalty thereof is death. But in their great mercy and  

tenderness of heart they have doomed Mistress Prynne to  

stand only a space of three hours on the platform of the  

pillory, and then and thereafter, for the remainder of her  

natural life to wear a mark of shame upon her bosom.”19  

14 Section 497 of the Indian Penal Code, 1860 makes adultery a punishable  

offence against “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.” It goes on to state that, “in such case the  

wife shall not be punishable as an abettor.” The offence applies only to the man  

committing adultery. A woman committing adultery is not considered to be an  

                                                           19 Nathaniel Hawthorne, The Scarlet Letter, Bantam Books (1850), at page 59

PART C   

16    

“abettor” to the offence. The power to prosecute for adultery rests only with the  

husband of the woman.  

Understanding the gendered nature of Section 497 needs an inquiry into the  

origins of the provision itself as well as the offence of adultery more broadly. The  

history of adultery throws light upon disparate attitudes toward male and female  

infidelity, and reveals the double standard in law and morality that has been  

applied to men and women.20  

15 Throughout history, adultery has been regarded as an offence; it has been  

treated as a religious transgression, as a crime deserving harsh punishment, as  

a private wrong, or as a combination of these.21 The earliest recorded injunctions  

against adultery are found in the ancient code of the Babylonian king  

Hammurabi, dating from circa 1750 B.C. The code prescribed that a married  

woman caught in adultery be bound to her lover and thrown into water so that  

they drown together.22 By contrast, Assyrian law considered adultery to be a  

private wrong for which the husband or father of the woman committing adultery  

could seek compensation from her partner.23 English historian Faramerz  

Dabhoiwala notes that the primary purpose of these laws was to protect the  

property rights of men:  

                                                           20 See David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008)  21 Ibid  22 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 10  23 Ibid, at page 11

PART C   

17    

“Indeed, since the dawn of history every civilisation had  

prescribed severe laws against at least some kind of sexual  

immorality. The oldest surviving legal codes (c.2100-1700  

BCE), drawn up by the kings of Babylon made adultery  

punishable by death and most other near Eastern and  

classical culture also treated it as a serious offence…The  

main concern of such laws was usually to uphold the honour  

and property rights of fathers, husbands and higher status  

groups…”24  

16 In Ancient Greco-Roman societies, there existed a sexual double standard  

according to which adultery constituted a violation of a husband’s exclusive  

sexual access to his wife, for which the law allowed for acts of revenge.25 In 17  

B.C., Emperor Augustus passed the Lex Julia de adulteriis coercendis, which  

stipulated that a father was allowed to kill his daughter and her partner when  

caught committing adultery in his or her husband’s house.26 While in the Judaic  

belief adultery merited death by stoning for both the adulteress and her partner,27  

Christianity viewed adultery more as a moral and spiritual failure than as a public  

crime.28 The penalties of the Lex Julia were made more severe by Christian  

emperors. Emperor Constantine, for instance, introduced the death penalty for  

adultery, which allowed the husband the right to kill his wife if she committed  

adultery.29 Under the Lex Julia, adultery was primarily a female offence, and the  

law reflected the sentiments of upper-class Roman males.30  

                                                           24 Faramerz Dabhoiwala, The Origins of Sex: A History of the First Sexual Revolution (2012), at page 5  25 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30  26 Vern Bullough, Medieval Concepts of Adultery, at page 7  27 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 27  28 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, Vol. 30, Journal of Family Law (1991), at  

page 46  29 Vern Bullough, Medieval Concepts of Adultery, at page 7  30 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 27

PART C   

18    

17 Once monogamy came to be accepted as the norm in Britain between the  

fourth and fifth centuries, adultery came to be recognized as a serious wrong that  

interfered with a husband’s “rights” over his wife.31 The imposition of criminal  

sanctions on adultery was also largely based on ideas and beliefs about sexual  

morality which acquired the force of law in Christian Europe during the Middle  

Ages.32 The development of canon law in the twelfth century enshrined the  

perception of adultery as a spiritual misdemeanour. In the sixteenth century,  

following the Reformation, adultery became a crucial issue because Protestants  

placed new emphasis on marriage as a linchpin of the social and moral order.33  

Several prominent sixteenth century reformers, including Martin Luther and John  

Calvin, argued that a marriage was irreparably damaged by infidelity, and they  

advocated divorce in such cases.34  

Concerned with the “moral corruption” prevalent in England since the  

Reformation, Puritans in the Massachusetts Bay Colony introduced the death  

penalty for committing adultery.35 The strict morality of the early English colonists  

is reflected in the famous 1850 novel ‘The Scarlet Letter’ by Nathaniel  

Hawthorne, in which an unmarried woman who committed adultery and bore a  

child out of wedlock was made to wear the letter A (for adulterer) when she went  

out in public; her lover was not so tagged, suggesting that women were punished  

                                                           31 Jeremy D. Weinstein, Adultery, Law, and the State: A History, Vol. 38, Hastings Law Journal (1986), at page 202;  

R. Huebner, A History of Germanic Private Law (F. Philbrick trans. 1918)  32 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6  33 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30  34 Ibid.  35 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 30

PART C   

19    

more severely than men for adultery, especially when they had a child as  

evidence.36  

18 In 1650, England enacted the infamous Act for Suppressing the Detestable  

Sins of Incest, Adultery and Fornication, which introduced the death penalty for  

sex with a married woman.37 The purpose of the Act was as follows:  

“For the suppressing of the abominable and crying sins  

of…adultery… wherewith this Land is much defiled, and  

Almighty God highly displeased; be it enacted...That in case  

any married woman shall…be carnally known by any man  

(other than her husband)…as well the man as the  

woman…shall suffer death.”  

The Act was a culmination of long-standing moral concerns about sexual  

transgressions, sustained endeavours to regulate conjugal matters on a secular  

plain, and a contemporaneous political agenda of socio-moral reform.38 It was  

repealed in 1660 during the Restoration. The common law, however, was still  

concerned with the effect of adultery by a married woman on inheritance and  

property rights. It recognized the “obvious danger of foisting spurious offspring  

upon her unsuspecting husband and bringing an illegitimate heir into his  

family.”39 Accordingly, secular courts treated adultery as a private injury and a tort  

                                                           36 James R. Mellow, Hawthorne's Divided Genius, The Wilson Quarterly (1982)  37 Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996).  38 Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Puritans and Revolutionaries: Essays  in Seventeenth-Century History Presented to Christopher Hill (Donald Pennington, Keith Thomas, eds.), at page 281  39 Charles E. Torcia, Wharton's Criminal Law, Section 218, (1994) at page 528

PART C   

20    

for criminal conversation was introduced in the late 17th century, which allowed  

the husband to sue his wife’s lover for financial compensation.40  

19 In 19th century Britain, married women were considered to be chattel of  

their husbands in law, and female adultery was subjected to ostracism far worse  

than male adultery because of the problem it could cause for property inheritance  

through illegitimate children.41 Consequently, many societies viewed chastity,  

together with related virtues such as modesty, as more central components of a  

woman’s honor and reputation than of a man’s.42 The object of adultery laws was  

not to protect the bodily integrity of a woman, but to allow her husband to  

exercise control over her sexuality, in order to ensure the purity of his own  

bloodline. The killing of a man engaged in an adulterous act with one’s wife was  

considered to be manslaughter, and not murder.43 In R v Mawgridge,44 Judge  

Holt wrote that:  

“…[A] man is taken in adultery with another man’s wife, if the  

husband shall stab the adulterer, or knock out his brains, this  

is bare manslaughter: for Jealousy is the Rage of a Man and  

Adultery is the highest invasion of property.”        

(Emphasis supplied)  

20 In his Commentaries on the Laws of England, William Blackstone wrote  

that under the common law, “the very being or legal existence of the woman  

                                                           40 J. E. Loftis, Congreve’s Way of the World and Popular Criminal Literature, Studies in English Literature, 1500 –  

1900 36(3) (1996), at page 293  41 Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (2009), at page 143  42 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 28  43 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at page 191-192  44 (1707) Kel. 119

PART C   

21    

[was] suspended during the marriage, or at least [was] incorporated and  

consolidated into that of the husband: under whose wing, protection and cover,  

she performe[d] everything.”45 In return for support and protection, the wife owed  

her husband “consortium” of legal obligations, which included sexual  

intercourse.46 Since adultery interfered with the husband's exclusive entitlements,  

it was considered to be the “highest possible invasion of property,” similar to  

theft.47 In fact, civil actions for adultery evolved from actions for enticing away a  

servant from a master and thus depriving the master of the quasi-proprietary  

interest in his services.48  

Faramerz Dabhoiwala notes that a man’s wife was considered to be his property,  

and that another man’s “unlawful copulation” with her warranted punishment:  

“…[T]he earliest English law codes, which date from this time,  

evoke a society where women were bought and sold and  

lived constantly under the guardianship of men. Even in  

cases of consensual sex, its system of justice was mainly  

concerned with the compensation one man should pay to  

another for unlawful copulation with his female chattel.”  

21 When the IPC was being drafted, adultery was not a criminal offence in  

common law. It was considered to be an ecclesiastical wrong “left to the feeble  

coercion of the Spiritual Court, according to the rules of Canon Law.”49 Lord  

Thomas Babington Macaulay, Chairman of the First Law Commission of India                                                              45 William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages 442 445  46 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris  

Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161  47 R v. Mawgridge, (1707) Kel. 119  48 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris  

Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161  49 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at pages 64-65

PART C   

22    

and principal architect of the IPC, considered the possibility of criminalizing  

adultery in India, and ultimately concluded that it would serve little purpose.50  

According to Lord Macaulay, the possible benefits from an adultery offence could  

be better achieved through pecuniary compensation.51 Section 497 did not find a  

place in the first Draft Penal Code prepared by Lord Macaulay. On an appraisal  

of the facts and opinions collected from all three Presidencies about the  

feasibility criminalizing adultery, he concluded in his Notes to the IPC that:  

“…All the existing laws for the punishment of adultery are  

altogether inefficacious for the purpose of preventing injured  

husbands of the higher classes from taking the law into their  

own hands; secondly; that scarcely any native of higher  

classes ever has recourse to the courts of law in a case of  

adultery for redress against either his wife, or her gallant;  

thirdly, that the husbands who have recourse in case of  

adultery to the Courts of law are generally poor men whose  

wives have run away, that these husbands seldom have any  

delicate feelings about the intrigue, but think themselves  

injured by the elopement, that they consider wives as useful  

members of their small households, that they generally  

complain not of the wound given to their affections, not of the  

stain on their honor , but of the loss of a menial whom they  

cannot easily replace, and that generally their principal object  

is that the women may be sent back.” These things being  

established, it seems to us that no advantage is to be  

expected from providing a punishment for adultery. We  

think it best to treat adultery merely as a civil injury.”52    

(Emphasis supplied)  

22 The Law Commissioners, in their Second Report on the Draft Penal Code,  

disagreed with Lord Macaulay’s view. Placing heavy reliance upon the status of  

women in India, they concluded that:  

                                                           50 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review  

(2016), at page 52  51 Ibid.  52 Macaulay's Draft Penal Code (1837), Note Q

PART C   

23    

“While we think that the offence of adultery ought not to be  

omitted from the code, we would limit its cognizance to  

adultery committed with a married woman, and considering  

that there is much weight in the last remark in note Q,  

regarding the condition of the women, in this country, in  

deference to it, we would render the male offender alone  

liable to punishment. We would, however, put the parties  

accused of adultery on trial “together”, and empower the  

Court in the event of their conviction to pronounce a decree of  

divorce against the guilty woman, if the husband sues for it, at  

the same time that her paramour is sentenced to punishment  

by imprisonment or fine.”53  

The Law Commissioners’ decision to insert Section 497 into the IPC was rooted  

in their concern about the possibility of the “natives” resorting to illegal measures  

to avenge the injury in cases of adultery:  

“The backwardness of the natives to have recourse to the  

courts of redress in cases of adultery, [Colonel Sleeman]  

asserts, “arises from the utter hopelessness on their part of  

ever getting a conviction in our courts upon any evidence that  

such cases admit of;” that is to say, in courts in which the  

Mahommedan law is observed. “The rich man…not only feels  

the assurance that he could not get a conviction, but dreads  

the disgrace of appearing publicly in one court after another,  

to prove…his own shame and his wife’s dishonor. He has  

recourse to poison secretly, or with his wife’s consent; and  

she will generally rather take it than be turned out into the  

streets a degraded outcast. The seducer escapes with  

impunity, he suffers nothing, while his poor victim suffers all  

that human nature is capable of enduring…The silence of the  

Penal Code will give still greater impunity to the seducers,  

while their victims will, in three cases out of four, be  

murdered, or driven to commit suicide. Where husbands are  

in the habit of poisoning their guilty wives from the want of  

legal means of redress, they will sometimes poison those who  

are suspected upon insufficient grounds, and the innocent will  

suffer.”54  

                                                           53 Second Report on the Indian Penal Code (1847), at pages 134-35, cited from, Law Commission of India, Forty-

second Report: Indian Penal Code, at page 365  54 A Penal Code prepared by The Indian Law Commissioners (1838), The Second Report on the Indian Penal Code,  

at page 74

PART C   

24    

Section 497 and Section 198 are seen to treat men and women unequally, as  

women are not subject to prosecution for adultery, and women cannot prosecute  

their husbands for adultery. Additionally, if there is “consent or connivance” of the  

husband of a woman who has committed adultery, no offence can be  

established. In its 42nd Report, the Law Commission of India considered the  

legislative history of Section 497 and the purported benefit of criminal sanctions  

for adultery. The Committee concluded that, “though some of us were personally  

inclined to recommend repeal of the section, we think on the whole that the time  

has not yet come for making such a radical change in the existing position.”55 It  

recommended that Section 497 be retained, but with a modification to make  

women who commit adultery liable as well.  

23 In its 156th Report, the Law Commission made a proposal which it believed  

reflected the “‘transformation’ which the society has undergone,” by suggesting  

removing the exemption from liability for women under Section 497.56 In 2003,  

the Justice Malimath Committee recommended that Section 497 be made  

gender-neutral, by substituting the words of the provision with “whosoever has  

sexual intercourse with the spouse of any other person is guilty of adultery.”57  

The Committee supported earlier proposals to not repeal the offence, but to  

equate liability for the sexes:  

“The object of the Section is to preserve the sanctity of  

marriage. Society abhors marital infidelity. Therefore, there is  

no reason for not meting out similar treatment to the wife who  

                                                           55 Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326  56 Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172  57 Report of the Committee on Reforms of Criminal Justice System (2003), at page 190

PART C   

25    

has sexual intercourse with a man (other than her  

husband).”58  

Neither the recommendations of the Law Commission nor those of the Malimath  

Committee have been accepted by the Legislature. Though women are  

exempted from prosecution under Section 497, the underlying notion upon which  

the provision rests, which conceives of women as property, is extremely harmful.  

The power to prosecute lies only with the husband (and not to the wife in cases  

where her husband commits adultery), and whether the crime itself has been  

committed depends on whether the husband provides “consent for the allegedly  

adulterous act.”  

24 Women, therefore, occupy a liminal space in the law: they cannot be  

prosecuted for committing adultery, nor can they be aggrieved by it, by virtue of  

their status as their husband’s property. Section 497 is also premised upon  

sexual stereotypes that view women as being passive and devoid of sexual  

agency. The notion that women are ‘victims’ of adultery and therefore require the  

beneficial exemption under Section 497 has been deeply criticized by feminist  

scholars, who argue that such an understanding of the position of women is  

demeaning and fails to recognize them as equally autonomous individuals in  

society.59 Effectively, Indian jurisprudence has interpreted the constitutional  

guarantee of sex equality as a justification for differential treatment: to treat men  

                                                           58 Ibid.  59 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review  

(2016), at page 63

PART C   

26    

and women differently is, ultimately, to act in women’s interests.60 The status of  

Section 497 as a “special provision”61 operating for the benefit of women,  

therefore, constitutes a paradigmatic example of benevolent patriarchy.  

25 Throughout history, the law has failed to ask the woman question.62 It has  

failed to interrogate the generalizations or stereotypes about the nature,  

character and abilities of the sexes on which laws rest, and how these notions  

affect women and their interaction with the law. A woman's ‘purity’ and a man’s  

marital ‘entitlement’ to her exclusive sexual possession may be reflective of the  

antiquated social and sexual mores of the nineteenth century, but they cannot be  

recognized as being so today. It is not the “common morality” of the State at any  

time in history, but rather constitutional morality, which must guide the law. 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.

                                                           60 Brenda Cossman and Ratna Kapur, Subversive Sites: Feminist Engagements with Law in India (1996)  61 Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930  62 The ‘Woman Question’ was one of the great issues that occupied the middle of the nineteenth century, namely the  

social purpose of women. It is used as a tool to enquire into the status of women in the law and how they interact  with and are affected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard Law Review (1990)

PART D   

27    

D Across frontiers   

26 The last few decades have been characterized by numerous countries  

around the world taking measures to decriminalize the offence of adultery due to  

the gender discriminatory nature of adultery laws as well as on the ground that  

they violate the right to privacy. However, progressive action has primarily been  

taken on the ground that provisions penalising adultery are discriminatory against  

women either patently on the face of the law or in their implementation.  Reform  

towards achieving a more egalitarian society in practice has also been driven by  

active measures taken by the United Nations and other international human  

rights organizations, where it has been emphasized that even seemingly gender-

neutral provisions criminalising adultery cast an unequal burden on women:63  

“Given continued discrimination and inequalities faced by  

women, including inferior roles attributed to them by  

patriarchal and traditional attitudes, and power imbalances in  

their relations with men, the mere fact of maintaining adultery  

as a criminal offence, even when it applies to both women  

and men, means in practice that women mainly will continue  

to face extreme vulnerabilities, and violation of their human  

rights to dignity, privacy and equality.”  

The abolishing of adultery has been brought about in equal measure by  

legislatures and courts. When decisions have been handed down by the judiciary  

across the world, it has led to the creation of a rich body of transnational  

jurisprudence. This section will focus on a few select comparative decisions  

emanating from the courts of those countries where the provision criminalizing  

adultery has been struck down through judicial action. The decisions of these                                                              63 U N Working Group on Women’s Human Rights: Report (18 October, 2012), available at:   

http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E

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28    

courts reflect how the treatment of the law towards adultery has evolved with the  

passage of time and in light of changing societal values.  

27 In 2015, the South Korean Constitutional Court,64 by a majority of 7-2  

struck down Article 241 of the Criminal Law; a provision which criminalized  

adultery with a term of imprisonment of two years as unconstitutional. In doing  

so, South Korea joined a growing list of countries in Asia and indeed around the  

world that have taken the measure of effacing the offence of adultery from the  

statute books, considering evolving public values and societal trends. The  

Constitutional Court had deliberated upon the legality of the provision four times  

previously65, but chose to strike it down when it came before it in 2015, with the  

Court’s judgement acknowledging the shifting public perception of individual  

rights in their private lives.  

The majority opinion of the Court was concurred with by five of the seven  

judges66 who struck down the provision. The majority acknowledged that the  

criminal provision had a legitimate legislative purpose in intending “to promote  

the marriage system based on good sexual culture and practice and monogamy  

and to preserve marital fidelity between spouses.” However, the Court sought to  

strike a balance between the legitimate interest of the legislature in promoting the  

                                                           64Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at       

http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do   65 Firstpost, South Korean court abolishes law that made adultery illegal, (February 26, 2015), available at      https://www.firstpost.com/world/south-korean-court-abolishes-law-saying-adultery-is-illegal-2122935.html   66 Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong, Justice Seo Ki-Seog and Justice  

Cho Yong-Ho (Adultery is Unconstitutional)

PART D   

29    

institution of marriage and marital fidelity vis-à-vis the fundamental right of an  

individual to self-determination, which included sexual-self-determination, and  

was guaranteed under Article 10 of their Constitution.67 The Court held:   

“The right to self-determination connotes the right to sexual  

self-determination that is the freedom to choose sexual  

activities and partners, implying that the provision at issue  

restricts the right to sexual self-determination of individuals. In  

addition, the provision at Issue also restricts the right to  

privacy protected under Article 17 of the Constitution in that it  

restricts activities arising out of sexual life belonging to the  

intimate private domain.”  

The Court used the test of least restrictiveness, and began by acknowledging  

that there no longer existed public consensus on the criminalization of adultery,  

with the societal structure having changed from holding traditional family values  

and a typeset role of family members to sexual views driven by liberal thought  

and individualism. While recognizing that marital infidelity is immoral and  

unethical, the Court stated that love and sexual life were intimate concerns, and  

they should not be made subject to criminal law. Commenting on the balance  

between an individual’s sexual autonomy vis-à-vis societal morality, the Court  

remarked:  

“…the society is changing into one where the private interest  

of sexual autonomy is put before the social interest of sexual  

morality and families from the perspective of dignity and  

happiness of individuals.”68  

                                                           67 Article 10 of the South Korean Constitution “All citizens are assured of human worth and dignity and have the right  to pursue happiness.  It is the duty of the State to confirm and guarantee the fundamental and inviolable human  rights of individuals.”  

68 Supra, note 64, Part V- A (3)(1) (‘Change in Public’s Legal Awareness’ under the head of ‘Appropriateness of  Means and Least Restrictiveness’)

PART D   

30    

Next, the Court analysed the appropriateness and effectiveness of criminal  

punishment in curbing the offence of adultery. Addressing the question of  

whether adultery should be regulated, the Court stated that modern criminal law  

dictated that the State should not seek to interfere in an act that is not socially  

harmful or deleterious to legal interests, simply because it is repugnant to  

morality.  Moreover, it held that the State had no business in seeking to control  

an individual’s actions which were within the sphere of his or her constitutionally  

protected rights of privacy and self-determination.  

Moving on to the effectiveness of the provision at hand, the Court remarked that  

criminalizing adultery did not help save a failing marriage. The Court remarked  

that it was obvious that once a spouse was accused of adultery, the  

consequence was generally intensified spousal conflict as opposed to the  

possibility of family harmony:  

“Existing families face breakdown with the invoking of the  

right to file an accusation. Even after cancellation of the  

accusation, it is difficult to hope for emotional recovery  

between spouses. Therefore, the adultery crime can no  

longer contribute to protecting the marital system or family  

order. Furthermore, there is little possibility that a person who  

was punished for adultery would remarry the spouse who had  

made an accusation against himself/herself. It is neither  

possible to protect harmonious family order because of the  

intensified conflict between spouses in the process of criminal  

punishment of adultery.”69  

                                                           69 Supra, note 64, Part V- A (3)(3) (‘Effectiveness of Criminal Punishment’, under the head of ‘Appropriateness of  

Means and Least Restrictiveness’)

PART D   

31    

Addressing the concern that an abolition of a penal consequence would result in  

“chaos in sexual morality” or an increase of divorce due to adultery, the Court  

concluded that there was no data at all to support these claims in countries  

where adultery is repealed, stating:  

“Rather, the degree of social condemnation for adultery has  

been reduced due to the social trend to value the right to  

sexual self-determination and the changed recognition on  

sex, despite of the punishment of adultery. Accordingly, it is  

hard to anticipate a general and special deterrence effect for  

adultery from the perspective of criminal policy as it loses the  

function of regulating behaviour.”70  

The Court also analysed the argument that adultery provisions protected women:  

“It is true that the existence of adultery crimes in the past  

Korean society served to protect women. Women were  

socially and economically underprivileged, and acts of  

adultery were mainly committed by men. Therefore, the  

existence of an adultery crime acted as psychological  

deterrence for men, and, furthermore, enabled female  

spouses to receive payment of compensation for grief or  

divided assets from the male spouse on the condition of  

cancelling the adultery accusation.  

However, the changes of our society diluted the justification of  

criminal punishment of adultery. Above all, as women’s  

earning power and economic capabilities have improved with  

more active social and economic activities, the premise that  

women are the economically disadvantaged does not apply to  

all married couples.”   

Finally, the Court concluded its analysis by holding that the interests of enforcing  

monogamy, protecting marriage and promoting marital fidelity, balanced against  

                                                           70 Ibid.

PART D   

33    

The Respondent prayed that the Court consider making the provision of adultery  

equal in its treatment of men and women, instead of striking it down completely.  

However, in its holding, the Court denied this request, holding it could not  

prescribe a punishment under penal law to change the statute. The Court held  

that Section 154 of the Penal Code was wholly unconstitutional as being violative  

of the provisions of the Constitution, and remarked:  

“...the respondent did not point out to us areas that his Court  

can or should modify and adapt to bring them in conformity  

with the provisions of the Constitution. The section is a penal  

one and this Court in our considered opinion cannot create a  

sentence that the courts can impose on adulterous spouses.  

Consequently, it is our finding that the provision of section  

154 of the Penal Code Act is inconsistent with the stated  

provisions of the Constitution and it is void.”75  

29 In 2015, in DE v RH,76 the Constitutional Court of South Africa held that an  

aggrieved spouse could no longer seek damages against a third party in cases of  

adultery. Madlanga J poignantly remarked on the preservation of marriage:  

“…although marriage is ‘a human institution which is  

regulated by law and protected by the Constitution and which,  

in turn, creates genuine legal duties . . . Its essence . . .  

consists in the readiness, founded in morals, of the parties to  

the marriage to create and to maintain it’. If the parties to the  

marriage have lost that moral commitment, the marriage will  

fail and punishment meted out to a third party is unlikely to  

change that.”77   

                                                           75 Ibid.  76 DE v RH, [2015] ZACC 18  77 Ibid, at para 34

PART D   

34    

The decisions of the US Supreme Court bearing on the issue of privacy have  

been analysed in an incisive article, titled “For Better or for Worse: Adultery,  

Crime and The Constitution”78, by Martin Siegel. He presents three ways in which  

adultery implicates the right to privacy. The first is that adultery must be viewed  

as a constitutionally protected marital choice. Second, that certain adulterous  

relationships are protected by the freedom of association and finally, that adultery  

constitutes an action which is protected by sexual privacy.79 A brief study is also  

undertaken on whether action penalizing adultery constitutes a legitimate interest  

of the State.  

The first privacy interest in adultery is the right to marital choice. The U.S.  

Supreme Court has upheld the values of ‘fundamental liberty’, ‘freedom of  

choice’ and ‘the ‘right to privacy’ in marriage. With this jurisprudence, the author  

argues, it would be strange if a decision to commit adultery is not a treated as a  

matter of marriage and family life as expressed in Cleveland Board80, ‘an act  

occurring in marriage’, as held in Griswold81 or a ‘matter of marriage and family  

life’ as elucidated in Carey.82   

                                                           78 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)  45  

79 Ibid, at page 46   80 Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973)   81 Griswold, 381 U.S. 1 (1967)   82 Carey, v. Population Serv. Int’l, 431 U.S. 678  

PART D   

35    

Siegel posits that a decision to commit adultery is a decision ‘relating to marriage  

and family relationships’ and therefore, falls within the domain of protected  

private choices. He observes that the essence of the offence is in fact the  

married status of one of the actors, and the mere fact that the commission of the  

act consisted of a mere sexual act or a series of them is legally irrelevant. If the  

argument that adultery, though unconventional, is an act related to marriage and  

therefore fundamentally private is accepted, then it deserves equal protection.  

Siegel cites Laurence Tribe, on accepting the ‘unconventional variants’ that also  

form a part of privacy:   

“Ought the “right to marriage,” as elucidated by Griswold,  

Loving v. Virginia, Zablocki, Boddie v. Connecticut and  

Moore, also include marriage's "unconventional variants"-in  

this case the adulterous union?”83   

The mere fact that adultery is considered unconventional in society does not  

justify depriving it of privacy protection. The freedom of making choices also  

encompasses the freedom of making an ‘unpopular’ choice. This was articulated  

by Justice Blackmun in his dissent in Hardwick84:   

“A necessary corollary of giving individuals freedom to choose  

how to conduct their lives is acceptance of the fact that  

different individuals will make different choices.”85  

Siegel concludes that the privacy protections afforded to marriage must extend to  

all choices made within the marriage:  

                                                           83 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)  70  

84 Hardwick, 478 U.S.205  85 Ibid, at page 206

PART D   

36    

“The complexity and diversity among marriages make it all  

the more important that the privacy associated with that  

institution be construed to include all kinds of marriages,  

sexually exclusive as well as open, ‘good’, as well as ‘bad’.”86  

Siegel then proceeds to examine the next privacy interest in adultery, that of the  

right to association. The right to freedom of association he states is ‘a close  

constitutional relative of privacy’87, and they often interact in an intertwined  

manner. Siegel proceeds to explain that adultery must not simply be looked at as  

an act of consensual adult sexual activity, as sexual activity may simply be one  

element in a continuum of interactions between people:  

“Sexual activity may be preliminary or incidental to a  

developing association, or it may be its final culmination and  

solidification. In either case, it is simply one more element of  

the relationship. Two people may have sex upon first  

meeting. In this case, associational interests seem less  

important, although "loveless encounters are sometimes  

prerequisites for genuine love relationships; to forbid the  

former is, therefore, to inhibit the latter."' 88  

Next, Siegel examines the plausible protection of adultery through the lens of the  

freedom of expression. Since the act of engaging in sexual activity can be  

interpreted as being expressive, Siegel claims adultery might also implicate First  

Amendment rights. In support he cites a body of case law89,where courts have  

held that First Amendment rights are not limited to merely verbal expression but  

also encompass the right to ‘expressive association’.  

                                                           86 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)  

74  87 Ibid, at page 77  88 Ibid, at, page 78  89 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)

PART D   

37    

In concluding his section on the right to associate, Siegel warns against the  

dangers of classifying adultery solely as a sexual activity, as doing so would be  

akin to protecting a part of the relationship and criminalizing the other. This would  

be manifestly unjust:  

“It is difficult, both theoretically and practically, to single out  

the sexual contacts two people may have from the rest of  

their relationship- to criminalize the one and constitutionally  

protect as fundamental the other”. 90  

Lastly, Siegel discusses the connection between adultery and the right to sexual  

privacy.  It is accepted that a right to privacy safeguards an individual’s deeply  

personal choices which includes a recognition accorded to the inherently private  

nature of all consensual adult sexual activity.91 This understanding of sexual  

privacy found favour with the U.S. Supreme Court, which in Thornburgh v  

American College of Obstetricians and Gynaecologists92 quoted Charles  

Fried with approval:  

“The concept of privacy embodies the moral fact that a  

person belongs to himself and not to others nor to society as  

a whole.”93  

Siegel reiterates the underlying intangible value of adult consensual sexual  

activity:  

                                                           90 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)  

78  91 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)  

82  92 Thornburgh v. American College of Obstetricians and Gynaecologists, 476 U.S. 747 (1986)  93 Ibid, at Page 777

PART D   

38    

“The real importance of sexuality to humans, more so in  

today's world of effective birth control than ever, lies in the  

possibilities for self-realization and definition inherent in  

sexual choices. Sexual experience offers “self-

transcendence, expression of private fantasy, release of inner  

tensions, and meaningful and acceptable expression of  

regressive desires to be again the free child - unafraid to lose  

control, playful, vulnerable, spontaneous, sensually loved.”94  

Reflecting on the relationship between marital privacy and associational freedom,  

Spiegel remarks the “heterogeneity of experience”, resulting in a variety of  

choices, necessarily include the adulterous union which must be protected since  

it is unrealistic to expect all individuals to conform to society’s idea of sexuality:  

“Because sex is so much a part of our personhood, we should  

not expect that people different in so many other ways will be  

identical sexually. For some, adultery is a cruel betrayal, while  

for others it is just comeuppance for years of spousal neglect.  

In some marriages, sex is the epitome of commitment, while  

in others spouses jointly and joyfully dispense with sexual  

monogamy.”95  

In concluding the author states that the foregoing three-layered analysis left no  

room for doubt that adultery was a matter of marriage. It therefore deserved to be  

protected like all other affairs occurring in marriage and implicated routine  

privacy-based freedoms, and it was imperative to treat is as such. Spiegel  

concludes by quoting the U.S. Supreme Court in Eisenstadt v Braid, on the  

importance of protecting the power to make a ‘bad’ choice in a marriage:  

“A marriage's privacy and autonomy are the best routes to  

safeguarding liberty and pluralism. This is no less true when  

                                                           94 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)  at page 85  

95 Ibid, at Page 86

PART D   

39    

the power to choose, as it inevitably will, results in bad  

choices. It is a confidence in nothing less than the theory  

underscoring our entire political order: Our system of  

government requires that we have faith in the ability of the  

individual to decide wisely, if only he is fully appraised of the  

merits of the controversy.”96  

While acknowledging the interest that the State has in preserving the institution  

of marriage, Siegel precisely points out the inefficacy of attaching criminal  

sanctions to adultery in the following words:   

“Even if we accept that a state is trying to foster the interests  

of specific deceived spouses by its laws criminalizing  

adultery, it is impossible to believe that a criminal penalty  

imposed on one of the spouses would somehow benefit a  

marriage instead of representing the final nail in its coffin. And  

if deterrence of adultery is the goal, then the state's failure to  

arrest and prosecute offenders has long since removed any  

fear of legal sanction.”97  

Deborah L Rhode in her book titled “Adultery” argues that “intermittent  

idiosyncratic invocations of adultery prohibitions do little to enforce marital vows  

or reinforce confidence in the rule of law. There are better ways to signal respect  

for the institution of marriage and better uses of law enforcement than policing  

private, consensual sexual activity.”98  

                                                           96 Eisenstadt v. Baird , 405 U.S. 438, 457 (1972)  97 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)  

89  98 Deborah Rhode, Adultery: Infidelity and the Law, (Harvard University Press, 2016)

PART E   

40    

E Confronting patriarchy   

“Norms and ideals arise from the yearning that it is an  

expression of freedom: it does not have to be this way, it  

could be otherwise.”99  

30 The petitioner urged that (i) The full realisation of the ideal of equality  

enshrined in Article 14 of the Constitution ought to be the endeavour of this  

Court; (ii) the operation of Section 497 is a denial of equality to women in  

marriage; and (iii) the provision is manifestly arbitrary and amounts to a violation  

of the constitutional guarantee of substantive equality.  

The act which constitutes the offence under Section 497 of the Penal Code is a  

man engaging in sexual intercourse with a woman who is the “wife of another  

man”. For the offence to arise, the man who engages in sexual intercourse must  

either know or have reason to believe that the woman is married. Though a man  

has engaged in sexual intercourse with a woman who is married, the offence of  

adultery does not come into being where he did so with the consent or  

connivance of her husband.  

These ingredients of Section 497 lay bare several features which bear on the  

challenge to its validity under Article 14. The fact that the sexual relationship  

between a man and a woman is consensual is of no significance to the offence, if  

the ingredients of the offence are established.  What the legislature has  

                                                           99 Iris Marion Young, Justice and the Politics of Difference, Princeton University Press, 1990  

PART E   

41    

constituted as a criminal offence is the act of sexual intercourse between a man  

and a woman who is “the wife of another man”.  No offence exists where a man  

who has a subsisting marital relationship engages in sexual intercourse with a  

single woman. Though adultery is considered to be an offence relating to  

marriage, the legislature did not penalise sexual intercourse between a married  

man and a single woman. Even though the man in such a case has a spouse,  

this is considered to be of no legal relevance to defining the scope of the offence.  

That is because the provision proceeds on the notion that the woman is but a  

chattel; the property of her husband.  The fact that he is engaging in a sexual  

relationship outside marriage is of no consequence to the law.  The woman with  

whom he is in marriage has no voice of her own, no agency to complain.  If the  

woman who is involved in the sexual act is not married, the law treats it with  

unconcern.  The premise of the law is that if a woman is not the property of a  

married man, her act would not be deemed to be ‘adulterous’, by definition.  

31 The essence of the offence is that a man has engaged in an act of sexual  

intercourse with the wife of another man. But if the man to whom she is married  

were to consent or even to connive at the sexual relationship, the offence of  

adultery would not be established.  For, in the eyes of law, in such a case it is for  

the man in the marital relationship to decide whether to agree to his spouse  

engaging in a sexual act with another.  Indeed, even if the two men (the spouse  

of the woman and the man with whom she engages in a sexual act) were to  

connive, the offence of adultery would not be made out.

PART E   

42    

32 Section 497 is destructive of and deprives a woman of her agency,  

autonomy and dignity.  If the ostensible object of the law is to protect the  

‘institution of marriage’, it provides no justification for not recognising the agency  

of a woman whose spouse is engaged in a sexual relationship outside of  

marriage.  She can neither complain nor is the fact that she is in a marital  

relationship with a man of any significance to the ingredients of the offence.  The  

law also deprives the married woman who has engaged in a sexual act with  

another man, of her agency. She is treated as the property of her husband.  That  

is why no offence of adultery would be made out if her husband were to consent  

to her sexual relationship outside marriage.  Worse still, if the spouse of the  

woman were to connive with the person with whom she has engaged in sexual  

intercourse, the law would blink.  Section 497 is thus founded on the notion that a  

woman by entering upon marriage loses, so to speak, her voice, autonomy and  

agency. Manifest arbitrariness is writ large on the provision.  

33 The test of manifest arbitrariness is rooted in Indian jurisprudence. In E P  

Royappa v State of Tamil Nadu100, Justice Bhagwati characterised equality as a  

“dynamic construct” which is contrary to arbitrariness:  

“85…Now, what is the content and reach of this great  

equalising principle? It is a founding faith, to use the words of  

Bose. J., “a way of life”, and it must not be subjected to a  

narrow pedantic or lexicographic approach. We cannot  

countenance any attempt to truncate its all-embracing scope  

and meaning, for to do so would be to violate its activist  

magnitude. Equality is a dynamic concept with many  

aspects and dimensions and it cannot be “cribbed,  

                                                           100 (1974) 4 SCC 3

PART E   

43    

cabined and confined” within traditional and doctrinaire  

limits. From a positivistic point of view, equality is  

antithetic to arbitrariness. In fact equality and  

arbitrariness are sworn enemies; one belongs to the rule  

of law in a republic while the other, to the whim and  

caprice of an absolute monarch. Where an act is  

arbitrary, it is implicit in it that it is unequal both  

according to political logic and constitutional law and is  

therefore violative of Article 14…”101                         

(Emphasis supplied)  

The Constitution Bench in Shayara Bano v Union of India102 held the practice of  

Triple Talaq to be unconstitutional. Justice Rohinton Nariman, in his concurring  

opinion, applied the test of manifest arbitrariness to hold that the practice does  

not pass constitutional muster:  

“87. The thread of reasonableness runs through the  

entire fundamental rights chapter. What is manifestly  

arbitrary is obviously unreasonable and being contrary to  

the rule of law, would violate Article 14. Further, there is an  

apparent contradiction in the three-Judge Bench decision  

in McDowell [State of A.P. v. McDowell and Co., (1996) 3  

SCC 709] when it is said that a constitutional challenge can  

succeed on the ground that a law is “disproportionate,  

excessive or unreasonable”, yet such challenge would fail on  

the very ground of the law being “unreasonable, unnecessary  

or unwarranted”. The arbitrariness doctrine when applied to  

legislation obviously would not involve the latter challenge but  

would only involve a law being disproportionate, excessive or  

otherwise being manifestly unreasonable. All the aforesaid  

grounds, therefore, do not seek to differentiate between State  

action in its various forms, all of which are interdicted if they  

fall foul of the fundamental rights guaranteed to persons and  

citizens in Part III of the Constitution.”103                           

(Emphasis supplied)  

                                                           101 Ibid. at page 38  102 (2017) 9 SCC 1  103 Ibid. at pages 91-92

PART E   

44    

On the application of the test of manifest arbitrariness to invalidate legislation, the    

learned Judge held thus:  

“ 101…there is no rational distinction between the two types  

of legislation when it comes to this ground of challenge under  

Article 14. The test of manifest arbitrariness, therefore, as laid  

down in the aforesaid judgments would apply to invalidate  

legislation as well as subordinate legislation under Article 14.  

Manifest arbitrariness, therefore, must be something done by  

the legislature capriciously, irrationally and/or without  

adequate determining principle. Also, when something is  

done which is excessive and disproportionate, such  

legislation would be manifestly arbitrary. We are, therefore, of  

the view that arbitrariness in the sense of manifest  

arbitrariness as pointed out by us above would apply to  

negate legislation as well under Article 14.”104  

34 The decision in Shayara Bano, holds that legislation or state action which  

is manifestly arbitrary would have elements of caprice and irrationality and would  

be characterized by the lack of an adequately determining principle. An  

“adequately determining principle” is a principle which is in consonance with  

constitutional values. With respect to criminal legislation, the principle which  

determines the “act” that is criminalized as well as the persons who may be held  

criminally culpable, must be tested on the anvil of constitutionality. The principle  

must not be determined by majoritarian notions of morality which are at odds with  

constitutional morality.  

                                                           104 Ibid. at page 99

PART E   

45    

In Navtej Singh Johar v Union of India, (“Navtej”)105 Justice Indu Malhotra  

emphasized the need for a “sound” or “rational principle” underlying a criminal  

provision:  

“ …Section 377 insofar as it criminalises consensual sexual  

acts between adults in private, is not based on any sound or  

rational principle…  

Further, the phrase “carnal intercourse against the order of  

nature” in Section 377 as a determining principle in a penal  

provision, is too open-ended, giving way to the scope for  

misuse against members of the LGBT community.”  

35  The hypothesis which forms the basis of the law on adultery is the  

subsistence of a patriarchal order. Section 497 is based on a notion of morality  

which fails to accord with the values on which the Constitution is founded.  The  

freedoms which the Constitution guarantees inhere in men and women alike.  In  

enacting Section 497, the legislature made an ostensible effort to protect the  

institution of marriage.  ‘Ostensible’ it is, because the provision postulates a  

notion of marriage which subverts the equality of spouses. Marriage in a  

constitutional regime is founded on the equality of and between spouses.  Each  

of them is entitled to the same liberty which Part III guarantees.  Each of them is  

entitled to take decisions in accordance with his and her conscience and each  

must have the ability to pursue the human desire for fulfilment.  Section 497 is  

based on the understanding that marriage submerges the identity of the woman.  

It is based on a notion of marital subordination.  In recognising, accepting and  

enforcing these notions, Section 497 is inconsistent with the ethos of the  

Constitution. Section 497 treats a woman as but a possession of her spouse. The  

                                                           105 Writ Petition (Criminal) No. 76 OF 2016

PART E   

46    

essential values on which the Constitution is founded – liberty, dignity and  

equality – cannot allow such a view of marriage.  Section 497 suffers from  

manifest arbitrariness.  

36 While engrafting the provision into Chapter XX of the Penal Code – “of  

offences relating to marriage” – the legislature has based the offence on an  

implicit assumption about marriage. The notion which the law propounds and to  

which it imposes the sanctions of penal law is that the marital tie subordinates  

the role and position of the woman. In that view of marriage, the woman is bereft  

of the ability to decide, to make choices and give free expression to her  

personality.  Human sexuality is an essential aspect of identity.  Choices in  

matters of sexuality are reflective of the human desire for expression. Sexuality  

cannot be construed purely as a physiological attribute.  In its associational  

attributes, it links up with the human desire to be intimate with a person of one’s  

choice.  Sharing of physical intimacies is a reflection of choice. In allowing  

individuals to make those choices in a consensual sphere, the Constitution  

acknowledges that even in the most private of zones, the individual must have  

the ability to make essential decisions. Sexuality cannot be dis-associated from  

the human personality.  For, to be human involves the ability to fulfil sexual  

desires in the pursuit of happiness. Autonomy in matters of sexuality is thus  

intrinsic to a dignified human existence. Human dignity both recognises and  

protects the autonomy of the individual in making sexual choices.  The sexual  

choices of an individual cannot obviously be imposed on others in society and

PART E   

47    

are premised on a voluntary acceptance by consenting parties.  Section 497  

denudes the woman of the ability to make these fundamental choices, in  

postulating that it is only the man in a marital relationship who can consent to his  

spouse having sexual intercourse with another.  Section 497 disregards the  

sexual autonomy which every woman possesses as a necessary condition of her  

existence. Far from being an equal partner in an equal relationship, she is  

subjugated entirely to the will of her spouse.  The provision is proffered by the  

legislature as an effort to protect the institution of marriage.  But it proceeds on a  

notion of marriage which is one sided and which denies agency to the woman in  

a marital tie.  The ability to make choices within marriage and on every aspect  

concerning it is a facet of human liberty and dignity which the Constitution  

protects.  In depriving the woman of that ability and recognising it in the man  

alone, Section 497 fails to meet the essence of substantive equality in its  

application to marriage. Equality of rights and entitlements between parties to a  

marriage is crucial to preserve the values of the Constitution.  Section 497  

offends that substantive sense of equality and is violative of Article 14.  

37 The procedural law which has been enacted in Section 198 of the Code of  

Criminal Procedure 1973 re-enforces the stereotypes implicit in Section 497.   

Cognizance of an offence under Chapter XX of the Penal Code can be taken by  

a Court only upon a complaint of a person aggrieved.  In the case of an offence  

punishable under Section 497, only the husband of the woman is deemed to be  

aggrieved by the offence.  In any event, once the provisions of Section 497 are

PART E   

48    

held to offend the fundamental rights, the procedure engrafted in Section 198 will  

cease to have any practical relevance.            

38 Section 497 amounts to a denial of substantive equality. The decisions in  

Sowmithri and Revathi espoused a formal notion of equality, which is contrary  

to the constitutional vision of a just social order. Justness postulates equality. In  

consonance with constitutional morality, substantive equality is “directed at  

eliminating individual, institutional and systemic discrimination against  

disadvantaged groups which effectively undermines their full and equal social,  

economic, political and cultural participation in society.”106 To move away from a  

formalistic notion of equality which disregards social realities, the Court must take  

into account the impact of the rule or provision in the lives of citizens.  

The primary enquiry to be undertaken by the Court towards the realisation of  

substantive equality is to determine whether the provision contributes to the  

subordination of a disadvantaged group of individuals.107 The disadvantage must  

be addressed not by treating a woman as ‘weak’ but by construing her  

entitlement to an equal citizenship. The former legitimizes patronising attitudes  

towards women. The latter links true equality to the realisation of dignity. The  

focus of such an approach is not simply on equal treatment under the law, but  

                                                           106 Kathy Lahey, Feminist Theories of (In)equality, in Equality and Judicial Nuetrality (S.Martin and K.Mahoney (eds.)  (1987)  

107 Ratna Kapur On Woman, Equality and the Constitution: Through the Looking Glass of Feminism in Gender and  Politics in India (Nivedita Menon ed.) (1993)

PART E   

49    

rather on the real impact of the legislation.108 Thus, Section 497 has to be  

examined in the light of existing social structures which enforce the position of a  

woman as an unequal participant in a marriage.   

Catherine Mackinnon implores us to look more critically at the reality of this  

family sphere, termed ‘‘personal,’’ and view the family as a “crucible of women’s  

unequal status and subordinate treatment sexually, physically, economically, and  

civilly.”109  In a social order which has enforced patriarchal notions of sexuality  

upon women and which treats them as subordinate to their spouses in  

heterosexual marriages, Section 497 perpetuates an already existing inequality.   

39  Facially, the law may be construed to operate as an exemption from  

criminal sanctions. However, when viewed in the context of a social structure  

which considers the husband as the owner of the wife’s sexuality, the law  

perpetuates a deeply entrenched patriarchal order. The true realisation of the  

substantive content of equality must entail an overhaul of these social structures.  

When all visible and invisible forms of inequality- social, cultural, economic,  

political or sexual- are recognised and obliterated; a truly egalitarian existence  

can be imagined.  

                                                           108 Maureen Maloney, An Analysis of Direct Taxes in India: A Feminist Perspective, Journal of the Indian Law Institute  (1988)  

109 Catherine A Mackinnon, Sex equality under the Constitution of India: Problems, prospects, and ‘personal laws’,  Oxford University Press and New York University School of Law (2006)  

PART F   

50    

F ‘The Good Wife’  

Article 15 of the Constitution reads thus:  

“15. (1) The State shall not discriminate against any citizen on  

grounds only of religion, race, caste, sex, place of birth or any  

of them.”                                                                               

(Emphasis supplied)            

40 Article 15 prohibits the State from discriminating on grounds only of sex.  

The Petitioners contend that (i) Section 497, in so far as it places a husband and  

wife on a different footing in a marriage perpetuates sex discrimination; (ii)  

Section 497 is based on the patriarchal conception of the woman as property,  

entrenches gender stereotypes, and is consequently hit by Article 15.  

From a joint reading of Section 497 of the Indian Penal Code and Section 198(2)  

of the Code of Criminal Procedure, the following propositions emerge:  

i. Sexual relations by a married woman with another man outside her  

marriage without the consent of her husband is criminalized;  

ii. In an ‘adulterous relationship’, the man is punished for adultery, while the  

woman is not (even as an abettor);  

iii. Sexual relations by a married man with an unmarried woman are not  

criminalized;  

iv. Section 497 accords primacy to the consent of the husband to determine  

whether criminality is attached to the man who has consensual sexual

PART F   

51    

relations with the spouse of the former. Consent or willingness of the  

woman is irrelevant to the offence;  

v. A man who has sexual relations with the spouse of another man is relieved  

of the offence only if her spouse has consented or, even connived; and   

vi. Section 497, IPC, read with Section 198, Cr.PC, gives the man the sole  

right to lodge a complaint and precludes a woman from initiating criminal  

proceedings.   

41 The operation of Section 497, by definition, is confined to the sexual  

relations of a woman outside her marriage. A man who has sexual intercourse  

with a married woman without the consent or connivance of her husband, is  

liable to be prosecuted under the Section. However, a married man may engage  

in sexual relations outside marriage with a single woman without any  

repercussion in criminal law. Though granted immunity from prosecution, a  

woman is forced to consider the prospect of the penal action that will attach upon  

the individual with whom she engages in a sexual act. To ensure the fidelity of  

his spouse, the man is given the power to invoke the criminal sanction of the  

State. In effect, her spouse is empowered to curtail her sexual agency. The  

consent of the husband serves as the key to the exercise of the sexual agency of  

his spouse. That the married woman is in a consensual relationship, is of no  

consequence to the possible prosecution.  

PART F   

52    

A married man may engage in sexual relations with an unmarried woman who is  

not his wife without the fear of opening his partner to prosecution and without the  

consent of his spouse. No recourse is provided to a woman against her husband  

who engages in sexual relations outside marriage. The effect of Section 497 is to  

allow the sexual agency of a married woman to be wholly dependent on the  

consent or connivance of her husband. Though Section 497 does not punish a  

woman engaging in adultery as an abettor, a married man and a married woman  

are placed on different pedestals in respect to their actions. The effect of Section  

497, despite granting immunity from prosecution to the married woman, is to  

attach a notion of wrongdoing to the exercise of her sexual agency. Despite  

exempting her from prosecution, the exercise of her sexual agency is contingent  

on the consent or connivance of the husband. A husband is considered an  

aggrieved party by the law if his wife engages in sexual intercourse with another  

man, but the wife is not, if her husband does the same. Viewed from this angle,  

Section 497 discriminates between a married man and a married woman to her  

detriment on the ground of sex. This kind of discrimination is prohibited by the  

non-discrimination guarantee in Article 15 of the Constitution. Section 497 also  

places a woman within marriage and the man with whom she shares a sexual  

relationship outside marriage on a different footing.   

42 Section 497 criminalizes the conduct of the man who has sexual  

intercourse with the wife of another without his consent. It exempts women from  

criminal liability. Underlying this exemption is the notion that women, being

PART F   

53    

denuded of sexual agency, should be afforded the ‘protection’ of the law. In  

criminalizing the accused who engages in the sexual relationship, the law  

perpetuates a gender stereotype that men, possessing sexual agency are the  

seducers, and that women, as passive beings devoid of sexual agency, are the  

seduced. The notion that a woman is ‘submissive’, or worse still ‘naïve’ has no  

legitimacy in the discourse of a liberal constitution. It is deeply offensive to  

equality and destructive of the dignity of the woman. On this stereotype, Section  

497 criminalizes only the accused man.  

43 Pertinent to the present enquiry, is that the provision allows only the  

husband to initiate a prosecution for adultery. The consent or connivance of the  

husband precludes prosecution. If a husband consents, his spouse is effectively  

granted permission to exercise her sexual agency with another individual. This  

guarantees a degree of control to the husband over the sexual agency of his  

spouse. As a 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.110 In this view, a woman is confounded with things that can  

be possessed. In construing the spouse as a passive or inanimate object, the law  

on adultery seeks to punish a person who attempts theft on the property of the  

husband. Coontz and Henderson write that the stabilization of property rights and  

                                                           110 Phyllis Coleman, Who’s Been Sleeping in My Bed? You and Me, and the State Makes Three, Vol. 24, Indian Law  

Review (1991)

PART F   

54    

the desire to pass on one’s property to legitimate heirs, were what motivated men  

to restrict the sexual behavior of their wives.111   

44 Underlying Section 497 is a gender stereotype that the infidelity of men is  

normal, but that of a woman is impermissible. In condemning the sexual agency  

of the woman, only the husband, as the ‘aggrieved’ party is given the right to  

initiate prosecution. The proceedings once initiated, would be geared against the  

person who committed an act of ‘theft’ or ‘trespass’ upon his spouse. Sexual  

relations by a man with another man’s wife is therefore considered as theft of the  

husband’s property. Ensuring a man’s control over the sexuality of his wife was  

the true purpose of Section 497.   

Implicit in seeking to privilege the fidelity of women in a marriage, is the  

assumption that a woman contracts away her sexual agency when entering a  

marriage. That a woman, by marriage, consents in advance to sexual relations  

with her husband or to refrain from sexual relations outside marriage without the  

permission of her husband is offensive to liberty and dignity. Such a notion has  

no place in the constitutional order. Sexual autonomy constitutes an inviolable  

core of the dignity of every individual. At the heart of the constitutional rights  

guaranteed to every individual is a primacy of choice and the freedom to  

determine one’s actions. Curtailing the sexual autonomy of a woman or  

                                                           111 Women’s Work, Men’s Property: The Origins of Gender and Class (S Coontz and P Henderson eds.) (1986)

PART F   

55    

presuming the lack of consent once she enters a marriage is antithetical to  

constitutional values.   

45 A provision of law must not be viewed as operating in isolation from the  

social, political, historical and cultural contexts in which it operates. In its  

operation, law “permeates and is inseparable from everyday living and knowing,  

and it plays an important role in shaping (legal) consciousness.”112 A contextual  

reading of the law shows that it influences social practices, and makes  

“asymmetries of power seem, if not invisible, natural and benign”.113 Section 497  

has a significant social impact on the sexual agency of women. It builds on  

existing gender stereotypes and bias and further perpetuates them.  Cultural  

stereotypes are more forgiving of a man engaging in sexual relations than a  

woman. Women then are expected to be chaste before and faithful during  

marriage. In restricting the sexual agency of women, Section 497 gives legal  

recognition to socially discriminatory and gender-based norms. Sexual relations  

for a woman were legally and socially permissible when it was within her  

marriage. Women who committed adultery or non-marital sex were labeled  

immoral, shameful, and were criminally condemned.  

                                                           112 Rosemary Coombe, Is There a Cultural Studies of Law?, in A Companion to Cultural Studies, Toby Miller (ed.),  

Oxford, (2001)   113 Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of  

Legal Scholarship, Yale Journal of Law & the Humanities, (2001), at page 19

PART F   

56    

In Anuj Garg v Hotel Association of India,114 this Court struck down Section 30  

of the Punjab Excise Act, 1914 which prohibited the employment of women in  

premises where liquor or other intoxicating drugs were consumed by the public.  

Holding that the law suffered from “incurable fixations of stereotype morality and  

conception of sexual role”, the Court took into account “traditional cultural norms  

as also the state of general ambience in the society” and held that “no law in its  

ultimate effect should end up perpetuating the oppression of women.”  

In Navtej, one of us (Chandrachud J.) held thus:  

“A discriminatory act will be tested against constitutional  

values. A discrimination will not survive constitutional scrutiny  

when it is grounded in and perpetuates stereotypes about a  

class constituted by the grounds prohibited in Article 15(1). If  

any ground of discrimination, whether direct or indirect is  

founded on a stereotypical understanding of the role of the  

sex, it would not be distinguishable from the discrimination  

which is prohibited by Article 15 on the grounds only of sex. If  

certain characteristics grounded in stereotypes, are to be  

associated with entire classes of people constituted as groups  

by any of the grounds prohibited in Article 15(1), that cannot  

establish a permissible reason to discriminate. Such a  

discrimination will be in violation of the constitutional  

guarantee against discrimination in Article 15(1).”  

46 Section 497 rests on and perpetuates stereotypes about women and  

sexual fidelity. In curtailing the sexual agency of women, it exacts sexual fidelity  

from women as the norm. It perpetuates the notion that a woman is passive and  

incapable of exercising sexual freedom. In doing so, it offers her ‘protection’ from  

prosecution. Section 497 denudes a woman of her sexual autonomy in making its  

                                                           114 (2008) 3 SCC 1

PART F   

57    

free exercise conditional on the consent of her spouse. In doing so, it  

perpetuates the notion that a woman consents to a limited autonomy on entering  

marriage. The provision is grounded in and has a deep social effect on how  

society perceives the sexual agency of women. In reinforcing the patriarchal  

structure which demands her controlled sexuality, Section 497 purports to serve  

as a provision envisaged for the protection of the sanctity of marriage. In the  

context of a constitutional vision characterized by the struggle to break through  

the shackles of gender stereotypes and guarantee an equal citizenship, Section  

497 entrenches stereotypes and existing structures of discrimination and has no  

place in a constitutional order.   

F.1 The entrapping cage  

47 Section 497 exempts a woman from being punished as an abettor.  

Underlying this exemption is the notion that a woman is the victim of being  

seduced into a sexual relationship with a person who is not her husband. In  

assuming that the woman has no sexual agency, the exemption seeks to be  

justified on the ground of being a provision that is beneficial to women and  

protected under Article 15(3) of the Constitution. This is contrary to the remedy  

which Article 15(3) sought to embody. In Government of A P v P B  

Vijayakumar,115 a two judge Bench of this Court dealt with a challenge to sub-

rule (2) of Rule 22-A of the Andhra Pradesh State and Subordinate Service  

                                                           115 (1995) 4 SCC 520

PART F   

58    

Rules, which gave women a preference in the matter of direct recruitment.  

Speaking for the Court, Justice Sujata V Manohar held thus:  

“7. The insertion of Clause (3) of Article 15 in relation to  

women is a recognition of the fact that for centuries, women  

of this country have been socially and economically  

handicapped. As a result, they are unable to participate in the  

socio-economic activities of the nation on a footing of  

equality. It is in order to eliminate this socio-economic  

backwardness of women and to empower them in a manner  

that would bring about effective equality between men and  

women that Article 15(3) is placed in Article 15. Its object is to  

strengthen and improve the status of women…”116  

In Independent Thought v Union of India,117 Justice Madan B Lokur, speaking  

for a two judge Bench of this Court, adverted to the drafting history of Article  

15(3) and held thus:  

 “55. The response given by Dr. Ambedkar suggests that he  

certainly favoured special provisions for women and children  

with a view to integrate them into society and to take them out  

of patriarchal control…118   

56. What clearly emerges from this discussion is that Article  

9(2) of the draft Constitution [now Article 15(3)] was intended  

to discriminate in favour of women and children – a form of  

affirmative action to their advantage.”119  

48 Article 15(3) encapsulates the notion of ‘protective discrimination’. The  

constitutional guarantee in Article 15(3) cannot be employed in a manner that  

entrenches paternalistic notions of ‘protection’. This latter view of protection only  

serves to place women in a cage. Article 15(3) does not exist in isolation. Articles

                                                           116 Ibid. at page 525  117 (2017) 10 SCC 800  118 Ibid. at page 837  119 Ibid. at page 837

PART G   

59    

14 to 18, being constituents of a single code on equality, supplement each other  

and incorporate a non-discrimination principle. Neither Article 15(1), nor Article  

15(3) allow discrimination against women. Discrimination which is grounded in  

paternalistic and patriarchal notions cannot claim the protection of Article 15(3).  

In exempting women from criminal prosecution, Section 497 implies that a  

woman has no sexual agency and that she was ‘seduced’ into a sexual  

relationship. Given the presumed lack of sexual agency, criminal exemption is  

then granted to the woman in order to ‘protect’ her. The ‘protection’ afforded to  

women under Section 497 highlights the lack of sexual agency that the section  

imputes to a woman. Article 15(3) when read with the other Articles in Part III,  

serves as a powerful remedy to remedy the discrimination and prejudice faced by  

women for centuries. Article 15(3) as an enabling provision is intended to bring  

out substantive equality in the fullest sense. Dignity and autonomy are crucial to  

substantive equality. Hence, Article 15(3) does not protect a statutory provision  

that entrenches patriarchal notions in the garb of protecting women.  

G Denuding identity – women as sexual property   

49 Charles Jean Marie wrote in 1911120 about the central forms of adultery as  

an offence. The criminalisation of adultery came at a social cost: of disregarding  

the agency of a woman as a sentient being.   

                                                           120 Charles Jean Marie Letorneau, The Evolution of Marriage (2011)

PART G   

60    

“In all legislations the married woman is more or less openly  

considered as the property of the husband and is very often  

confounded, absolutely confounded, with things possessed.  

To use her, therefore, without the authority of her owner is  

theft…But adultery is not a common theft. An object, an inert  

possession, are passive things; their owner may well punish  

the thief who has taken them, but him only. In adultery, the  

object of larceny, the wife, is a sentient and thinking  

being- that is to say, an accomplice in the attempt on her  

husband’s property in her own person; moreover he  

generally has her in his keeping…”  

 The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated  

the lives of women for centuries.  Ostensibly, society has two sets of standards of  

morality for judging sexual behaviour.121 One set for its female members and  

another for males.122 Society ascribes impossible virtues to a woman and  

confines her to a narrow sphere of behaviour by an expectation of conformity.123  

Raising a woman to a pedestal is one part of the endeavour. The second part is  

all about confining her to a space. The boundaries of that space are defined by  

what a woman should or should not be. A society which perceives women as  

pure and an embodiment of virtue has no qualms of subjecting them to virulent  

attack: to rape, honour killings, sex-determination and infanticide. As an  

embodiment of virtue, society expects the women to be a mute spectator to and  

even accepting of egregious discrimination within the home. This is part of the  

process of raising women to a pedestal conditioned by male notions of what is  

right and what is wrong for a woman. The notion that women, who are equally  

entitled to the protections of the Constitution as their male counterparts, may be  

                                                           121 Nandita Haksar, Dominance, Suppression and the Law in Women and the Law: Contemporary Problems (Lotika  

Sarkar and B. Sivaramayya eds.), Vikas Publishing House (1994)  122 Ibid  123 Ibid

PART G   

61    

treated as objects capable of being possessed, is an exercise of subjugation and  

inflicting indignity. Anachronistic conceptions of ‘chastity’ and ‘honour’ have  

dictated the social and cultural lives of women, depriving them of the guarantees  

of dignity and privacy, contained in the Constitution.  

50 The right to privacy depends on the exercise of autonomy and agency by  

individuals. In situations where citizens are disabled from exercising these  

essential attributes, Courts must step in to ensure that dignity is realised in the  

fullest sense. Familial structures cannot be regarded as private spaces where  

constitutional rights are violated. To grant immunity in situations when rights of  

individuals are in siege, is to obstruct the unfolding vision of the Constitution.   

The opinion delivered on behalf of four judges in K S  Puttaswamy v Union of  

India124 has recognised the dangers of the “use of privacy as a veneer for  

patriarchal domination and abuse of women.” On the delicate balance between  

the competing interests of protecting privacy as well dignity of women in the  

domestic sphere, the Court held:  

“The challenge in this area is to enable the state to take the  

violation of the dignity of women in the domestic sphere  

seriously while at the same time protecting the privacy  

entitlements of women grounded in the identity of gender and  

liberty.”  

                                                           124 (2017) 10 SCC 1   

PART G   

62    

51 In “Seeing like a Feminist”, Nivedita Menon has recognized the patriarchal  

family as the “basis for the secondary status of women in society.”125 Menon  

notes that ‘the personal is political’.126 Her scholarly work implores us to  

recognise spaces which may be considered personal such as the bedroom and  

kitchen. These spaces are immersed in power relations, but with ramifications for  

the public sphere.127   

Control over women’s sexuality is the key patriarchal assumption that underlies  

family and marriage.128 When it shifts to the ‘public’ as opposed to the ‘private’,  

the misogyny becomes even more pronounced.129 Section 497 embodies this. By  

the operation of the provision, women’s sexuality is sought to be controlled in a  

number of ways. First, the husband and he alone is enabled to prosecute the  

man with whom his wife has sexual relations. Even in cases where the  

relationship is based on the consent of the woman, the law treats it as an  

offence, denying a woman who has voluntarily entered into a consensual  

relationship of her sexual agency. Second, such a relationship would be beyond  

the reach of penal law if her husband consents to it. The second condition is a  

telling reflection of the patriarchal assumption underlying the criminal provision:  

that the husband is the owner of the wife’s sexual agency.  

                                                           125 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35  126 Ibid.  127 Ibid.  128 Ibid.  129 Ibid.

PART G   

63    

52 In remedying injustices, the Court cannot shy away from delving into the  

‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to  

intervene when structures of injustice and persecution deeply entrenched in  

patriarchy are destructive of constitutional freedom. But, in adjudicating on the  

rights of women, the Court is not taking on a paternalistic role and “granting”  

rights. The Court is merely interpreting the text of the Constitution to re-state  

what is already set in ink- women are equal citizens of this nation, entitled to the  

protections of the Constitution. Any legislation which results in the denial of these  

Constitutional guarantees to women, cannot pass the test of constitutionality.    

Patriarchy and paternalism are the underpinnings of Section 497.  It needs no  

iteration that misogyny and patriarchal notions of sexual control find no place in a  

constitutional order which has recognised dignity as intrinsic to a person,  

autonomy being an essential component of this right. The operation of Section  

497 denotes that ‘adulterous women’ virtually exercise no agency; or at least not  

enough agency to make them criminally liable.130  They are constructed as  

victims. As victims, they are to be protected by being exempt from sanctions of a  

criminal nature.131 Not only is there a denial of sexual agency, women are also  

not seen to be harmed by the offence.132 Thus, the provision is not simply about  

protecting the sanctity of the marital relationship. It is all about protecting a  

husband’s interest in his “exclusive access to his wife’s sexuality”.133  

                                                           130 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications  

(1996) at page 119  131 Ibid.  132 Ibid.  133 Ibid. at page 120

PART G   

64    

53 Section 497 chains the woman to antediluvian notions of sexuality.  Chief  

Justice Dipak Misra in Navtej emphasised the importance of sexual autonomy as  

a facet of individual liberty, thus protected under Article 21 of the Constitution:  

“The sexual autonomy of an individual to choose his/her  

sexual partner is an important pillar and an insegregable facet  

of individual liberty. When the liberty of even a single person  

of the society is smothered under some vague and archival  

stipulation that it is against the order of nature or under the  

perception that the majority population is peeved when such  

an individual exercises his/her liberty despite the fact that the  

exercise of such liberty is within the confines of his/her private  

space, then the signature of life melts and living becomes a  

bare subsistence and resultantly, the fundamental right of  

liberty of such an individual is abridged.”  

In Navtej, one of us (Chandrachud J.) held that the recognition of the autonomy  

of an individual is an acknowledgement of the State’s respect for the capacity of  

the individual to make individual choices:   

“The right to privacy enables an individual to exercise his or  

her autonomy, away from the glare of societal expectations.  

The realisation of the human personality is dependent on the  

autonomy of an individual. In a liberal democracy, recognition  

of the individual as an autonomous person is an  

acknowledgment of the State’s respect for the capacity of the  

individual to make independent choices. The right to privacy  

may be construed to signify that not only are certain acts no  

longer immoral, but that there also exists an affirmative moral  

right to do them.”  

 To characterise a woman as a passive object, denuded of agency, is a denial of  

autonomy. The same judgment in Navtej has recognized sexual choices as an  

essential attribute of autonomy, intimately connected to the self-respect of the  

individual:

PART G   

65    

“In order to understand how sexual choices are an essential  

attribute of autonomy, it is useful to refer to John Rawls’  

theory on social contract. Rawls’ conception of the ‘Original  

Position’ serves as a constructive model to illustrate the  

notion of choice behind a “partial veil of ignorance.” Persons  

behind the veil are assumed to be rational and mutually  

disinterested individuals, unaware of their positions in society.  

The strategy employed by Rawls is to focus on a category of  

goods which an individual would desire irrespective of what  

individuals’ conception of ‘good’ might be. These neutrally  

desirable goods are described by Rawls as ‘primary social  

goods’ and may be listed as rights, liberties, powers,  

opportunities, income, wealth, and the constituents of self-

respect. Rawls's conception of self-respect, as a primary  

human good, is intimately connected to the idea of  

autonomy. Self-respect is founded on an individual's  

ability to exercise her native capacities in a competent  

manner.”                                                                              

(Emphasis supplied)  

G.1 Exacting fidelity: the intimacies of marriage   

      54 Marriage as a social institution has undergone changes. Propelled by  

access to education and by economic and social progress, women have found  

greater freedom to assert their choices and preferences. The law must also  

reflect their status as equals in a marriage, entitled to the constitutional  

guarantees of privacy and dignity. The opinion delivered on behalf of four judges  

in Puttaswamy held thus:  

“130…As society evolves, so must constitutional doctrine.  

The institutions which the Constitution has created must  

adapt flexibly to meet the challenges in a rapidly growing  

knowledge economy. Above all, constitutional interpretation is  

but a process in achieving justice, liberty and dignity to every  

citizen.”134  

                                                           134 Ibid. at page 414

PART G   

66    

In Navtej, Justice Rohinton Nariman countered the assertion that the Court must  

“not indulge in taking upon itself the guardianship of changing societal mores” by  

holding thus:  

“…The very purpose of the fundamental rights chapter in the  

Constitution of India is to withdraw the subject of liberty and  

dignity of the individual and place such subject beyond the  

reach of majoritarian governments so that constitutional  

morality can be applied by this Court to give effect to the  

rights, among others, of ‘discrete and insular’ minorities.One  

such minority has knocked on the doors of this Court as this  

Court is the custodian of the fundamental rights of citizens.  

These fundamental rights do not depend upon the  

outcome of elections. And, it is not left to majoritarian  

governments to prescribe what shall be orthodox in  

matters concerning social morality. The fundamental  

rights chapter is like the north star in the universe of  

constitutionalism in India. Constitutional morality always  

trumps any imposition of a particular view of social  

morality by shifting and different majoritarian regimes.”  

(Emphasis supplied)  

55 Section 497 seeks the preservation of a construct of marriage in which  

female fidelity is enforced by the letter of the law and by the coercive authority of  

the state. Such a conception goes against the spirit of the rights-based  

jurisprudence of this Court, which seeks to protect the dignity of an individual and  

her “intimate personal choices”. It cannot be held that these rights cease to exist  

once the woman enters into a marriage.  

56 The identity of the woman must be as an ‘individual in her own right’. In  

that sense, her identity does not get submerged as a result of her marriage.  

Section 497 lays down the norm that the identity of a married woman is but as  

the wife of her spouse. Underlying the norm is a notion of control over and  

subjugation of the woman. Such notions cannot withstand scrutiny under a liberal

PART G   

67    

constitution. Chief Justice Dipak Misra in Navtej has drawn on the  

interrelationship between ‘identity’ and ‘autonomy’:  

“…Autonomy is individualistic. Under the autonomy principle,  

the individual has sovereignty over his/her body. He/she can  

surrender his/her autonomy wilfully to another individual and  

their intimacy in privacy is a matter of their choice. Such  

concept of identity is not only sacred but is also in recognition  

of the quintessential facet of humanity in a person‘s nature.  

The autonomy establishes identity and the said identity, in the  

ultimate eventuate, becomes a part of dignity in an individual.  This dignity is special to the man/woman who has a right to  

enjoy his/her life as per the constitutional norms and should  

not be allowed to wither and perish like a mushroom. It is a  

directional shift from conceptual macrocosm to cognizable  

microcosm. When such culture grows, there is an affirmative  

move towards a more inclusive and egalitarian society.”  

This Court in Puttaswamy has elucidated that privacy is the entitlement of every  

individual, with no distinction to be made on the basis of the individual’s position  

in society.  

“271.Every individual in society irrespective of social class or  

economic status is entitled to the intimacy and autonomy  

which privacy protects. It is privacy as an intrinsic and core  

feature of life and personal liberty which enables an individual  

to stand up against a programme of forced sterilization. Then  

again, it is privacy which is a powerful guarantee if the State  

were to introduce compulsory drug trials of non-consenting  

men or women. The sanctity of marriage, the liberty of  

procreation, the choice of a family life and the dignity of being  

are matters which concern every individual irrespective of  

social strata or economic well being. The pursuit of happiness  

is founded upon autonomy and dignity. Both are essential  

attributes of privacy which makes no distinction between the  

birth marks of individuals.”135  

 57 It would be useful to refer to decisions of this Court which have  

emphasised on the freedoms of individuals with respect to choices in  

relationships. In Navtej, Chief Justice Misra highlighted the indignity suffered by  

                                                           135 Ibid. at page 484

PART G   

68    

an individual when “acts within their personal sphere” are criminalised on the  

basis of regressive social attitudes:  

“An individual's choice to engage in certain acts within their  

private sphere has been restricted by criminalising the same  

on account of the age old social perception. To harness such  

an essential decision, which defines the individualism of a  

person, by tainting it with criminality would violate the  

individual's right to dignity by reducing it to mere letters  

without any spirit.”  

The Chief Justice observed that the “organisation of intimate relations” between  

“consenting adults” is a matter of complete personal choice and characterised  

the “private protective sphere and realm of individual choice and autonomy” as a  

personal right:  

 “It is true that the principle of choice can never be absolute  

under a liberal Constitution and the law restricts one  

individual‘s choice to prevent harm or injury to others.  

However, the organisation of intimate relations is a  

matter of complete personal choice especially between  

consenting adults. It is a vital personal right falling within  

the private protective sphere and realm of individual  

choice and autonomy. Such progressive proclivity is  

rooted in the constitutional structure and is an  

inextricable part of human nature.”  

(Emphasis supplied)  

 .     In Shakti Vahini, this Court has recognised the right to choose a partner as a  

fundamental right under Articles 19 and 21 of the Constitution. In Shafin Jahan,  

“intimate personal choices” were held to be a protected sphere, with one of us  

(Chandrachud J) stating:  

 “88.The choice of a partner whether within or outside  

marriage lies within the exclusive domain of each individual.

PART G   

69    

Intimacies of marriage lie within a core zone of privacy, which  

is inviolable.”  

58 In Navtej, one of us (Chandrachud J) held that the right to sexual privacy  

is a natural right, fundamental to liberty and a soulmate of dignity. The application  

of Section 497 is a blatant violation of these enunciated rights. Will a trial to prove  

adultery lead the wife to tender proof of her fidelity? In Navtej, the principle was  

elucidated thus:  

“In protecting consensual intimacies, the Constitution adopts  

a simple principle: the state has no business to intrude into  

these personal matters.”  

In so far as two individuals engage in acts based on consent, the law cannot  

intervene. Any intrusion in this private sphere would amount to deprivation of  

autonomy and sexual agency, which every individual is imbued with.   

   In Puttaswamy, it was recognised that a life of dignity entails that the “inner  

recesses of the human personality” be secured from “unwanted intrusion”:  

 “127.The right to privacy is an element of human dignity. The  

sanctity of privacy lies in its functional relationship with  

dignity. Privacy ensures that a human being can lead a life of  

dignity by securing the inner recesses of the human  

personality from unwanted intrusion. Privacy recognises the  

autonomy of the individual and the right of every person to  

make essential choices which affect the course of life. In  

doing so privacy recognises that living a life of dignity is  

essential for a human being to fulfil the liberties and freedoms  

which are the cornerstone of the Constitution.”136  

                                                           136 Ibid. at page 413

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70    

59 In criminalizing adultery, the legislature has imposed its imprimatur on the  

control by a man over the sexuality of his spouse. In doing that, the statutory  

provision fails to meet the touchstone of Article 21. Section 497 deprives a  

woman of her autonomy, dignity and privacy. It compounds the encroachment on  

her right to life and personal liberty by adopting a notion of marriage which  

subverts true equality. Equality is subverted by lending the sanctions of the penal  

law to a gender biased approach to the relationship of a man and a woman. The  

statute confounds paternalism as an instrument for protecting marital stability. It  

defines the sanctity of marriage in terms of a hierarchical ordering which is  

skewed against the woman. The law gives unequal voices to partners in a  

relationship.  

This judgment has dwelt on the importance of sexual autonomy as a value which  

is integral to life and personal liberty under Article 21. Individuals in a  

relationship, whether within or outside marriage, have a legitimate expectation  

that each will provide to the other the same element of companionship and  

respect for choices. Respect for sexual autonomy, it must be emphasized is  

founded on the equality between spouses and partners and the recognition by  

each of them of the dignity of the other. Control over sexuality attaches to the  

human element in each individual. Marriage – whether it be a sacrament or  

contract – does not result in ceding of the autonomy of one spouse to another.  

PART G   

71    

60 Recognition of sexual autonomy as inhering in each individual and of the  

elements of privacy and dignity have a bearing on the role of the state in  

regulating the conditions and consequences of marital relationships. There is a  

fundamental reason which militates against criminalization of adultery. Its  

genesis lies in the fact that criminalizing an act is not a valid constitutional  

response to a sexual relationship outside the fold of marriage. Adultery in the  

course of a subsisting marital relationship may, and very often does question the  

commitment of the spouse to the relationship. In many cases, a sexual  

relationship of one of the spouses outside of the marriage may lead to the end of  

the marital relationship. But in other cases, such a relationship may not be the  

cause but the consequence of a pre-existing disruption of the marital tie. All too  

often, spouses who have drifted apart irrevocably may be compelled for reasons  

personal to them to continue with the veneer of a marriage which has ended for  

all intents and purposes. The interminably long delay of the law in the resolution  

of matrimonial conflicts is an aspect which cannot be ignored. The realities of  

human existence are too complex to place them in closed categories of right and  

wrong and to subject all that is considered wrong with the sanctions of penal law.  

Just as all conduct which is not criminal may not necessarily be ethically just, all  

conduct which is inappropriate does not justify being elevated to a criminal  

wrongdoing.   

61 The state undoubtedly has a legitimate interest in regulating many aspects  

of marriage. That is the foundation on which the state does regulate rights,

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72    

entitlements and duties, primarily bearing on its civil nature. Breach by one of the  

spouses of a legal norm may constitute a ground for dissolution or annulment.  

When the state enacts and enforces such legislation, it does so on the postulate  

that marriage as a social institution has a significant bearing on the social fabric.   

But in doing so, the state is equally governed by the norms of a liberal  

Constitution which emphasise dignity, equality and liberty as its cardinal values.  

The legitimate aims of the state may, it must be recognized, extend to imposing  

penal sanctions for certain acts within the framework of marriage. Physical and  

emotional abuse and domestic violence are illustrations of the need for legislative  

intervention. The Indian state has legitimately intervened in other situations such  

as by enacting anti dowry legislation or by creating offences dealing with the  

harassment of women for dowry within a marital relationship. The reason why  

this constitutes a legitimate recourse to the sovereign authority of the state to  

criminalize conduct is because the acts which the state proscribes are  

deleterious to human dignity. In criminalizing certain types of wrongdoing against  

women, the state intervenes to protect the fundamental rights of every woman to  

live with dignity. Consequently, it is important to underscore that this judgment  

does not question the authority and even the duty of the state to protect the  

fundamental rights of women from being trampled upon in unequal societal  

structures. Adultery as an offence does not fit that paradigm. In criminalizing  

certain acts, Section 497 has proceeded on a hypothesis which is deeply  

offensive to the dignity of women. It is grounded in paternalism, solicitous of  

patriarchal values and subjugates the woman to a position where the law

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73    

disregards her sexuality. The sexuality of a woman is part of her inviolable core.  

Neither the state nor the institution of marriage can disparage it. By reducing the  

woman to the status of a victim and ignoring her needs, the provision penalizing  

adultery disregards something which is basic to human identity. Sexuality is a  

definitive expression of identity. Autonomy over one’s sexuality has been central  

to human urges down through the ages. It has a constitutional foundation as  

intrinsic to autonomy. It is in this view of the matter that we have concluded that  

Section 497 is violative of the fundamental rights to equality and liberty as  

indeed, the right to pursue a meaningful life within the fold of Articles 14 and 21.                                              

 62 The hallmark of a truly transformative Constitution is that it promotes and  

engenders societal change. To consider a free citizen as the property of another  

is an anathema to the ideal of dignity. Section 497 denies the individual identity  

of a married woman, based on age-old societal stereotypes which characterised  

women as the property of their spouse. It is the duty of this Court to break these  

stereotypes and promote a society which regards women as equal citizens in all  

spheres of life- irrespective of whether these spheres may be regarded as ‘public’  

or ‘private’.  

H  Towards transformative justice   

 63 Constitutional values infuse the letter of the law with meaning. True to its  

transformative vision, the text of the Constitution has, time and again, been  

interpreted to challenge hegemonic structures of power and secure the values of

PART H   

74    

dignity and equality for its citizens. One of the most significant of the battles for  

equal citizenship in the country has been fought by women. Feminists have  

overcome seemingly insurmountable barriers to ensure a more egalitarian  

existence for future generations. However, the quest for equality continues.   

While there has been a considerable degree of reform in the formal legal system,  

there is an aspect of women’s lives where their subordination has historically  

been considered beyond reproach or remedy. That aspect is the family. Marriage  

is a significant social institution where this subordination is pronounced, with  

entrenched structures of patriarchy and romantic paternalism shackling women  

into a less than equal existence.  

64 The law on adultery, conceived in Victorian morality, considers a married  

woman the possession of her husband: a passive entity, bereft of agency to  

determine her course of life. The provision seeks to only redress perceived harm  

caused to the husband. This notion is grounded in stereotypes about permissible  

actions in a marriage and the passivity of women. Fidelity is only expected of the  

female spouse. This anachronistic conception of both, a woman who has entered  

into marriage as well as the institution of marriage itself, is antithetical to  

constitutional values of equality, dignity and autonomy.        

In enforcing the fundamental right to equality, this Court has evolved a test of  

manifest arbitrariness to be employed as a check against state action or  

legislation which has elements of caprice, irrationality or lacks an adequate

PART H   

75    

determining principle. The principle on which Section 497 rests is the  

preservation of the sexual exclusivity of a married woman – for the benefit of her  

husband, the owner of her sexuality. Significantly, the criminal provision exempts  

from sanction if the sexual act was with the consent and connivance of the  

husband. The patriarchal underpinnings of Section 497 render the provision  

manifestly arbitrary.  

65 The constitutional guarantee of equality rings hollow when eviscerated of  

its substantive content. To construe Section 497 in a vacuum (as did Sowmithri  

Vishnu) or in formalistic terms (as did Revathi) is a refusal to recognise and  

address the subjugation that women have suffered as a consequence of the  

patriarchal order. Section 497 is a denial of substantive equality in that it re-

inforces the notion that women are unequal participants in a marriage; incapable  

of freely consenting to a sexual act in a legal order which regards them as the  

sexual property of their spouse.  

66 This Court has recognised sexual privacy as a natural right, protected  

under the Constitution. To shackle the sexual freedom of a woman and allow the  

criminalization of consensual relationships is a denial of this right. Section 497  

denudes a married woman of her agency and identity, employing the force of law  

to preserve a patriarchal conception of marriage which is at odds with  

constitutional morality:  

“Infidelity was born on the day that natural flows of sexual  

desire were bound into the legal and formal permanence of  

marriage; in the process of ensuring male control over

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76    

progeny and property, women were chained within the fetters  

of fidelity.”137  

Constitutional protections and freedoms permeate every aspect of a citizen’s life  

- the delineation of private or public spheres become irrelevant as far as the  

enforcement of constitutional rights is concerned. Therefore, even the intimate  

personal sphere of marital relations is not exempt from constitutional scrutiny.  

The enforcement of forced female fidelity by curtailing sexual autonomy is an  

affront to the fundamental right to dignity and equality.  

67 Criminal law must be in consonance with constitutional morality. The law  

on adultery enforces a construct of marriage where one partner is to cede her  

sexual autonomy to the other. Being antithetical to the constitutional guarantees  

of liberty, dignity and equality, Section 497 does not pass constitutional muster.  

   We hold and declare that:  

1) Section 497 lacks an adequately determining principle to criminalize  

consensual sexual activity and is manifestly arbitrary. Section 497 is a  

denial of substantive equality as it perpetuates the subordinate status  

ascribed to women in marriage and society. Section 497 violates Article 14  

of the Constitution;  

                                                           137 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting Archana Verma, Stree  

Vimarsh Ke Mahotsav (2010)

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77    

2) Section 497 is based on gender stereotypes about the role of women and  

violates the non-discrimination principle embodied in Article 15 of the  

Constitution;  

 3) Section 497 is a denial of the constitutional guarantees of dignity, liberty,  

privacy and sexual autonomy which are intrinsic to Article 21 of the  

Constitution; and  

4) Section 497 is unconstitutional.  

The decisions in Sowmithri Vishnu and Revathi are overruled.   

                                                                 …..…..….............................................J  

                        [Dr Dhananjaya Y Chandrachud]  

   New Delhi;  September 27, 2018.                                                

1    

IN THE SUPREME COURT OF INDIA  

CRIMINAL ORIGINAL JURISDICTION  

WRIT PETITION (CRIMINAL) NO. 194 OF 2017  

Joseph Shine                 …Petitioner  

Versus  

Union of India              …Respondent  

    J U D G M E N T   

INDU MALHOTRA, J.  

1. The present Writ Petition has been filed to challenge the  

constitutional validity of Section 497 of the Indian Penal  

Code (hereinafter referred to as I.P.C.) which makes  

„adultery‟ a criminal offence, and prescribes a  

punishment of imprisonment upto five years and fine.  

Section 497 reads as under:  

―497. Adultery — 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

2    

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.‖  

2.  The Petitioner has also challenged Section 198(2) of the  

Code of Criminal Procedure, 1973, (hereinafter referred to  

as “Cr.P.C”). Section 198(2) reads as under:  

―For the purpose of sub-section (1), no  person other than the husband of the  woman shall be deemed to be  aggrieved by any offence punishable  under section 497 or section 498 of the  said Code.  Provided that in the absence of the  husband, some person who had care  of the woman on his behalf at the time  when such offence was committed  may, with the leave of the Court, make  a complaint on his behalf.‖    

3. The word „adultery‟1 derives its origin from the French  

word „avoutre‘, which has evolved from the Latin verb  

„adulterium‘ which means “to corrupt.” The concept of a  

wife corrupting the marital bond with her husband by  

                                       1 The New international Webster‟s Comprehensive Dictionary of the English Language,  

Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.) at page 21.

3    

having a relationship outside the marriage, was termed  

as „adultery‟.  

This definition of adultery emanated from the historical  

context of Victorian morality, where a woman considered  

to be the „property‟ of her husband; and the offence was  

committed only by the adulterous man. The adulterous  

woman could not be proceeded against as an „abettor‟,  

even though the relationship was consensual.   

4. THE DOCTRINE OF COVERTURE   

Adultery, as an offence, was not a crime under  

Common Law, in England. It was punishable by the  

ecclesiastical courts which exercised jurisdiction over  

sacramental matters that included marriage, separation,  

legitimacy, succession to personal property, etc.2   

In England, coverture determined the rights of married  

women, under Common Law. A „feme sole‘ transformed  

into a „feme covert‘ after marriage. „Feme covert‘ was  

based on the doctrine of „Unity of Persons‟ – i.e. the  

husband and wife were a single legal identity. This was  

                                       2 Outhwaite, R.B. (2007). The Rise and Fall of the English Ecclesiastical Courts, 1500–1860.  

Cambridge, UK: Cambridge University Press

4    

based on notions of biblical morality that a husband and  

wife were „one in flesh and blood‟. The effect of „coverture‟  

was that a married woman‟s legal rights were subsumed  

by that of her husband. A married woman could not own  

property, execute legal documents, enter into a contract,  

or obtain an education against her husband's wishes, or  

retain a salary for herself.3  

The principle of „coverture‟ was described in William  

Blackstone's Commentaries on the Laws of England as  

follows:4  

― By marriage, the husband and wife  are one person in law: that is, the very  being or legal existence of the woman is  suspended during the marriage, or at  least is incorporated and consolidated  into that of the husband: under whose  wing, protection, and cover, she  performs everything; and is therefore  called in our law-French a feme-covert;  is said to be covert-baron, or under the  protection and influence of her  husband, her baron, or lord; and her  condition during her marriage is called  her coverture. Upon this principle, of a  union of person in husband and wife,  depend almost all the legal rights,  duties, and disabilities, that either of  them acquires by the marriage. I speak  

                                       3 Fernandez, Angela “Tapping Reeve, Nathan Dane, and James Kent: Three Fading  

Federalists on Marital Unity.” Married Women and the Law: Coverture in England and the  

Common Law World, edited by Tim Stretton and Krista J. Kesselring, McGill-Queen's  

University Press, 2013, pp. 192–216.   4 Blackstone‘s Commentaries on the Laws of England, Books III & IV (8th Edn.), 1778

5    

not at present of the rights of property,  but of such as are merely personal. For  this reason, a man cannot grant  anything to his wife, or enter into  covenant with her: for the grant would  be to suppose her separate existence;  and to covenant with her, would be only  to covenant with himself: and therefore  it is also generally true, that all  contracts made between husband and  wife, when single, are voided by the  intermarriage.‖                (Emphasis supplied)  

On this basis, a wife did not have an individual legal  

liability for her misdeeds, since it was legally assumed  

that she was acting under the orders of her husband, and  

generally a husband and wife were not allowed to testify  

either for, or against each other.  

Medieval legal treatises, such as the Bracton5,  

described the nature of „coverture‟ and its impact on  

married women's legal actions. Bracton (supra) states  

that husbands wielded power over their wives, being their  

„rulers‟ and „custodians of their property‟. The institution  

of marriage came under the jurisdiction of ecclesiastical  

courts. It made wives live in the shadow of their  

husbands, virtually „invisible‟ to the law.  

                                       5 Bracton: De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of  

England attributed to Henry of Bratton, c. 1210-1268) Vol III, pg. 115  Available at http://bracton.law.harvard.edu/index.html

6    

The principle of coverture subsisted throughout the  

marriage of the couple. It was not possible to obtain a  

divorce through civil courts, which refused to invade into  

the jurisdiction of the church. Adultery was the only  

ground available to obtain divorce.   

The origin of adultery under Common Law was  

discussed in the English case Pritchard v. Pritchard and  

Sims6, wherein it was held that:   

―In 1857, when marriage in England  was still a union for life which could be  broken only by private Act of  Parliament, under the common law,  three distinct causes of action available  to a husband whose rights in his wife  were violated by a third party, who  enticed her away, or who harboured  her or who committed adultery with  her…In the action for adultery, known  as criminal conversation, which dates  from before the time of BRACTON, and  consequently lay originally in trespass,  the act of adultery itself was the cause  of action and the damages punitive at  large.  It lay whether the adultery  resulted in the husband‘s losing his  wife‘s society and services or not.  All  three causes of action were based on  the recognition accorded by the common  law to the husband‘s propriety which  would have been hers had she been  feme sole.‖      (Emphasis supplied)  

                                       6 [1966] 3 All E.R. 601

7    

In the Victorian Era7, women were denied the exercise  

of basic rights and liberties, and had little autonomy over  

their choices.  Their status was pari materia with that of  

land, cattle and crop; forming a part of the „estate‟ of their  

fathers as daughters prior to marriage, and as the „estate‟  

of their husband post-marriage.8  

Lord Wilson in his Speech titled “Out of his shadow:  

The long struggle of wives under English Law”9 speaks of  

the plight of women during this era:  

―8. An allied consequence of the wife‘s  coverture was that she was not legally  able to enter into a contract. Apart from  anything else, she had no property  against which to enforce any order  against her for payment under a  contract; so it was only a small step for  the law to conclude that she did not  have the ability to enter into the  contract in the first place. If, however,  the wife went into a shop and ordered  goods, say of food or clothing, which the  law regarded as necessary for the  household, the law presumed, unless  the husband proved to the contrary,  that she had entered into the contract  

                                       7 1807 – 1901 A.D.  8 Margot Finn (1996). Women, Consumption and Coverture in England, c. 1760–1860.  

The Historical Journal, 39, pp 703-722  9 The High Sheriff of Oxfordshire‟s Annual Law Lecture given by Lord Wilson on 9 October  

2012  Available at: https://www.supremecourt.uk/docs/speech-121009.pdf

8    

as his authorised agent. So the  shopkeeper could sue him for the price  if the wife had obtained the goods on  credit.  

9. In the seventeenth century there was  a development in the law relating to this  so-called agency of necessity. It was an  attempt to serve the needs of wives  whose husbands had deserted them.  The law began to say that, if a deserted  wife had not committed adultery, she  could buy from the shopkeeper all such  goods as were necessary for her and,  even if (as was highly likely) the  husband had not authorised her to buy  them, he was liable to pay the  shopkeeper for them. But the  shopkeeper had a problem. How was  he to know whether the wife at the  counter had been deserted and had not  committed adultery? Sometimes a  husband even placed a notice in the  local newspaper to the effect, true or  untrue, that his wife had deserted him  or had committed adultery and that  accordingly he would not be liable to  pay for her purchase of necessaries.….‖  

The remnants of „coverture‟ sowed the seeds for the  

introduction of „Criminal Conversation‟ as an actionable  

tort by a husband against his wife‟s paramour in  

England.   

Criminal Conversation as a tort, gave a married man  

the right to claim damages against the man who had  

entered into a sexual relationship with his wife. The

9    

consent of the wife to the relationship, did not affect the  

entitlement of her husband to sue.  

The legal position of matrimonial wrongs underwent a  

significant change with the passing of the Matrimonial  

Causes Act, 1857 in England.10 Section 59 of this Act  

abolished the Common Law action for “criminal  

conversation”.11 Section 33 empowered the Courts to  

award damages to the husband of the paramour for  

adultery.12  The claim for damages for adultery was to be  

tried on the same principles, and in the same manner, as  

actions for „criminal conversation‟ which were formerly  

tried at Common Law.13   

The status of the wife, however, even after the passing  

of the Matrimonial Causes Act, 1857 remained as  

                                       10 Matrimonial Causes Act 1857; 1857 (20 & 21 Vict.) C. 85  11 LIX. No Action for Criminal Conversation:   

“After this Act shall have come into operation no Action shall be maintainable in England for  Criminal Conversation.”  

12 XXXIII. Husband may claim Damages from Adulterers:  “Any Husband may, either in a Petition for Dissolution of Marriage or for Judicial  Separation, or in a Petition limited to such Object only, claim Damages from any Person on  the Ground of his having committed Adultery with the Wife of such Petitioner, and such  Petition shall be served on the alleged Adulterer and the Wife, unless the Court shall  dispense with such Service, or direct some other Service to be substituted; and the Claim  made by every such Petition shall be heard and tried on the same principle, in the same  manner, and subject to the same or the like rules and regulations as actions for criminal  conversations are now tried and decided in Courts of Common Law; and all the enactments  herein contain with reference to the hearing and decision of Petitions to the Courts shall, so  

far as may be necessary, be deemed applicable to the hearing and decision of Petitions  presented under this enactment..‖  

13 Id.

10    

„property of the husband‟, since women had no right to  

sue either their adulterous husband or his paramour.  

Gender equality between the spouses came to be  

recognised in some measure in England, with the passing  

of the Matrimonial Causes Act, 1923 which made  

„adultery‟ a ground for divorce, available to both spouses,  

instead of only the husband of the adultrous wife. The  

right of the husband to claim damages from his wife‟s  

paramour came to be abolished by The Law Reform  

(Miscellaneous Provisions) Act of 1970 on January 1,  

1971. In England, adultery has always been a civil wrong,  

and not a penal offence.  

5. SECTION 497 – HISTORICAL BACKGROUND  

5.1. The Indo-Brahmanic traditions prevalent in India  

mandated the chastity of a woman to be regarded  

as her prime virtue, to be closely guarded to  

ensure the purity of the male bloodline. The  

objective was not only to protect the bodily  

integrity of the woman, but to ensure that the  

husband retains control over her sexuality,

11    

confirming her „purity‟ in order to ensure the  

purity of his own bloodline.14   

5.2. The first draft of the I.P.C. released by the Law  

Commission of India in 1837 did not include  

“adultery” as an offence. Lord Macaulay was of  

the view that adultery or marital infidelity was a  

private wrong between the parties, and not a  

criminal offence.15  

The views of Lord Macaulay were, however,  

overruled by the other members of the Law  

Commission, who were of the opinion that the  

existing remedy for „adultery‟ under Common Law  

would be insufficient for the „poor natives‟, who  

would have no recourse against the paramour of  

their wife.16   

5.3. The debate that took place in order to determine  

whether „adultery‟ should be a criminal offence in  

India was recorded in „Note Q‟ of „A Penal Code  

                                       14 Uma Chakravarti, Gendering Caste Through a Feminist Lens, STREE Publications (2003)      

   at page 71.  15 156th Report on the Indian Penal Code (Vol. I), Law Commission of India at para 9.43 at       page 169  

Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf  16 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on  

the Indian Penal Code

12    

prepared by the Indian Law Commissioners‘ 17.  

The existing laws18 for the punishment of  

adultery were considered to be altogether  

inefficacious for preventing the injured husband  

from taking matters into his own hands.   

The Law Commissioners considered that by  

not treating „adultery‟ as a criminal offence, it  

may give sanction to immorality. The Report19  

states:  

― Some who admit that the penal  law now existing on this subject is  in practice of little or no use, yet  think that the Code ought to  contain a provision against  adultery. They think that such a  provision, though inefficacious for  the repressing of vice, would be  creditable to the Indian  Government, and that by omitting  such a provision we should give a  sanction to immorality. They say,  and we believe with truth, that the  higher class of natives consider  the existing penal law on the  subject as far too lenient, and are  unable to understand on what  principle adultery is treated with  

                                       17 A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas  

Babington Macaulay, Note Q  18 The laws governing adultery in the Colonial areas were laid down in Regulation XVII of      

1817, and Regulation VII of 1819; the Law Commissioners observed that the strict  

evidentiary and procedural requirements, deter the people from seeking redress.   19 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on  

the Indian Penal Code

13    

more tenderness than forgery or  perjury.  

…That some classes of the natives  of India disapprove of the lenity  with which adultery is now  punished we fully believe, but this  in our opinion is a strong  argument against punishing  adultery at all. There are only two  courses which in our opinion can  properly be followed with respect  to this and other great  immoralities. They ought to be  punished very severely, or they  ought not to be punished at all.  The circumstance that they are left  altogether unpunished does not  prove that the Legislature does not  regard them with disapprobation.  But when they are made  punishable the degree of severity  of the punishment will always be  considered as indicating the  degree of disapprobation with  which the Legislature regards  them. We have no doubt that the  natives would be far less shocked  by the total silence of the penal  law touching adultery than by  seeing an adulterer sent to prison  for a few months while a coiner is  imprisoned for fourteen years.‖                       (Emphasis supplied)  

The Law Commissioners in their Report (supra)  

further stated:  

―…..The population seems to be  divided into two classes – those

14    

whom neither the existing  punishment nor any punishment  which we should feel ourselves  justified in proposing will satisfy,  and those who consider the injury  produced by adultery as one for  which a pecuniary compensation  will sufficiently atone. Those  whose feelings of honour are  painfully affected by the infidelity  of their wives will not apply to the  tribunals at all. Those whose  feelings are less delicate will be  satisfied by a payment of money.  Under such circumstances we  think it best to treat adultery  merely as a civil injury.   

…No body proposes that adultery  should be punished with a  severity at all proportioned to the  misery which it produces in cases  where there is strong affection and  a quick sensibility to family  honour. We apprehend that among  the higher classes in this country  nothing short of death would be  considered as an expiation for  such a wrong. In such a state of  society we think it far better that  the law should inflict no  punishment than that it should  inflict a punishment which would  be regarded as absurdly and  immorally lenient.‖   

(Emphasis supplied)  

The Law Commissioners considered the plight  

of women in this country, which was much worse  

than that of women in France and England. „Note

15    

Q‟ (surpa) records this as the reason for not  

punishing women for the offence of adultery.   

The relevant extract of „Note Q‟ is reproduced  

herein below:  

― There is yet another consideration  which we cannot wholly leave out  of sight. Though we well know that  the dearest interests of the human  race are closely connected with the  chastity of women, and the  sacredness of the nuptial contract,  we cannot but feel that there are  some peculiarities in the state of  society in this country which may  well lead a humane man to pause  before he determines to punish the  infidelity of wives. The condition of  the women of this country is  unhappily very different from that  of the women of England and  France. They are married while still  children. They are often neglected  for other wives while still young.  They share the attention (sic) of a  husband with several rivals. To  make laws for punishing the  inconstancy of the wife while the  law admits the privilege of the  husband to fill his zenana with  women, is a course which we are  most reluctant to adopt. We are not  so visionary as to think of attacking  by law an evil so deeply rooted in  the manners of the people of this  country as polygamy. We leave it to  the slow, but we trust the certain  operation of education and of time.  But while it exists, while it

16    

continues to produce its never  failing effects on the happiness and  respectability of women, we are not  inclined to throw into a scale  already too much depressed the  additional weight of the penal law.  We have given the reasons which  lead us to believe that any  enactment on this subject would be  nugatory. And we are inclined to  think that if not nugatory it would  be oppressive. It would strengthen  hands already too strong. It would  weaken a class already too weak.  It will be time enough to guard the  matrimonial contract by penal  sanctions when that contract  becomes just, reasonable, and  mutually beneficial.‖  

            (Emphasis supplied)  

Colonel Sleeman opposed the reasoning of the  

Law Commissioners on this subject. The  

„backwardness of the natives‟ to take recourse to  

the courts for redress in cases of adultery, arose  

from „the utter hopelessness on their part of  

getting a conviction.‟ He was of the view that if  

adultery is not made a crime, the adulterous  

wives will alone bear the brunt of the rage of their  

husbands. They might be tortured or even  

poisoned. In his view, offences such as adultery

17    

were inexcusable and must be punished. Colonel  

Sleeman observed:  

“ The silence of the Penal Code  will give still greater impunity to  the seducers, while their victims  will, in three cases out of four, be  murdered, or driven to commit  suicide. Where husbands are in  the habit of poisoning their guilty  wives from the want of legal  means of redress, they will  sometimes poison those who are  suspected upon insufficient  grounds, and the innocent will  suffer.  

…Sometimes the poorest  persons will refuse pecuniary  compensations; but generally they  will be glad to get what the heads  of their caste or circle of society  may consider sufficient to defray  the expenses of a second  marriage. They dare not live in  adultery, they would be outcasts if  they did; they must be married  according to the forms of their  caste, and it is reasonable that the  seducer of the wife should be  made to defray these expenses for  the injured husband. The rich will,  of course, always refuse  pecuniary compensation, and for  the same reason that they would  never prosecute the seducer in a  civil court. The poor could never  afford so to prosecute in such a  court; and, as I have said, the  silence of the Penal Code would be  a solemn pledge of impunity to the

18    

guilty seducer, under the efficient  government like ours, that can  prevent the husband and father  from revenging themselves except  upon the females.‖ 20                  

(Emphasis supplied)  

This debate along with the recommendation of  

the Law Commissioners was considered by the  

Indian Law Commissioners while drafting the  

Indian Penal Code.   

5.4. The relevant extract from the discussion on  

whether to criminalize adultery was as follows:  

“We have observed that adultery is  recognised as an offence by the existing  laws of all the Presidencies, and that  an Act has been lately passed by the  Governor-General of India in Council for  regulating the punishment of the offence  in the Bombay territories. Adultery is  punishable by the Code Penal of  France. It is provided for in the Code of  Louisiana. The following are Mr.  Livingston‘s observations on the  subject. ―Whether adultery should be  considered as an offence against public  morality, or left to the operation of the  civil laws, has been the subject of much  discussion. As far as I am informed, it  figures in the penal law of all nations  except the English; and some of their  most celebrated lawyers have  considered the omission as a defect.   

                                       20 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on  

the Indian Penal Code

19    

Neither the immorality of the act, nor  its injurious consequences on the  happiness of females, and very  frequently on the peace of society and  the lives of its members, can be denied.  The reason then why it should go  unpunished does not seem very clear. It  is emphatically one of that nature to  which I have just referred, in which the  resentment of the injured party will  prompt him to take vengeance into his  own hands, and commit a greater  offence, if the laws of his country refuse  to punish the lesser. It is the nature of  man, and no legislation can alter it, to  protect himself where the laws refuse  their aid; very frequently where they do  not; but where they will not give  protection against injury, it is in vain  that they attempt to punish him who  supplies by his own energy their  remissness. Where the law refuses to  punish this offence, the injured party  will do it for himself, he will break the  public peace, and commit the greatest of  all crimes, and he is rarely or never  punished. Assaults, duels,  assassinations, poisonings, will be the  consequence. They cannot be  prevented; but, perhaps, by giving the  aid of the law to punish the offence  which they are intended to avenge, they  will be less frequent; and it will, by  taking away the pretext for the  atrocious acts, in a great measure  insure the infliction of the punishment  they deserve. It is for these reasons  that the offence of adultery forms a  chapter of this title.‖  

Having given mature consideration to  the subject, we have, after some

20    

hesitation, come to the conclusion that it  is not advisable to exclude this offence  from the Code. We think the reasons for  continuing to treat it as a subject for the  cognizance of the criminal courts  preponderate.….   

…While we think that the offence of  adultery ought not to be omitted from  the Code, we would limit its cognizance  to adultery committed with a married  woman, and considering that there is  much weight in the last remark in Note  Q, regarding the condition of the women  of this country, in deference to it we  would render the male offender alone  liable to punishment. We would,  however, put the parties accused of  adultery on trial together, and empower  the Court, in the event of their  conviction, to pronounce a decree of  divorce against the guilty woman, if the  husband sues for it, at the same time  that her paramour is sentenced to  punishment by imprisonment or fine. By  Mr. Livingstone‘s Code, the woman  forfeits her ‗matrimonial gains‘, but is  not liable to other punishment.  

We would adopt Colonel Sleeman‘s  suggestion as to the punishment of the  male offender, limiting it to  imprisonment not exceeding five years,  instead of seven years allowed at  present, and sanctioning the imposition  of a fine payable to the husband as an  alternative, or in addition.‖21  

                    (Emphasis supplied)  

                                       21 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on  

the Indian Penal Code

21    

5.5. It was in this backdrop that Section 497 came to  

be included in the I.P.C.   

6. THE QUEST FOR REFORM  

6.1. In June 1971, the 42nd Report of the Law  

Commission of India22 analysed various  

provisions of the I.P.C. and made several  

important recommendations.  With respect to the  

offence of „adultery‟, the Law Commission  

recommended that the adulterous woman must  

be made equally liable for prosecution, and the  

punishment be reduced from 5 years to 2 years.  

This was however, not given effect to.   

6.2. In August 1997, the Law Commission of India in  

its 156th Report23 noted that the offence of  

adultery under Section 497 is very limited in  

scope in comparison to the misconduct of  

adultery in divorce (civil proceedings). The section  

confers only upon the husband the right to  

                                       22 42nd Report on the Indian Penal Code, Law Commission of India   

Available at: http://lawcommissionofindia.nic.in/1-50/report42.pdf  23 156th Report on the Indian Penal Code (Vol. I), Law Commission of India, pages 169 - 172  

Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf

22    

prosecute the adulterous male, but does not  

confer any right on the aggrieved wife to  

prosecute her adultererous husband. It was  

recommended to introduce an amendment to  

incorporate the concept of equality between sexes  

in marriage vis-à-vis the offence of adultery. The  

proposed change was to reflect the  

transformation of women‟s status in Indian  

society.  

However, the recommendation was not  

accepted.  

6.3. In March 2003, the Malimath Committee on  

Reforms of Criminal Justice System24, was  

constituted by the Government of India, which  

considered comprehensive measures for  

revamping the Criminal Justice System. The  

Malimath Committee made the following  

recommendation with respect to “Adultery”:   

“16.3.1 A man commits the offence  of adultery if he has sexual  

                                       24 Report of the Committee on Reforms of Criminal Justice System, Government of India,  

Ministry of Home Affairs, chaired by Justice V.S. Malimath, (2003)  Available at:https://mha.gov.in/sites/default/files/criminal_justice_system.pdf

23    

intercourse with the wife of  another man without the consent  or connivance of the husband.   The object of this Section is to  preserve the sanctity of the  marriage.  The society abhors  marital infidelity.  Therefore, there  is no good reason for not meting  out similar treatment to wife who  has sexual intercourse with a  married man.  

16.3.2 The Committee therefore  suggests that Section 497 of the  I.P.C. should be suitably amended  to the effect that ―whosoever has  sexual intercourse with the spouse  of any other person is guilty of  adultery……‖  

                (Emphasis supplied)  

The recommendations of the Malimath  

Committee on the amendment of Section 497  

were referred to the Law Commission of India,  

which took up the matter for study and  

examination. The same is pending consideration.    

7. CONTEMPORARY INTERNATIONAL JURISPRUDENCE  

Before addressing the issue of the constitutional  

validity of Section 497 I.P.C., it would be of interest to  

review how „adultery‟ is treated in various jurisdictions  

around the world.

24    

Adultery has been defined differently across various  

jurisdictions. For instance, adultery charges may require  

the adulterous relationship to be “open and notorious,”25  

or be more than a single act of infidelity, or require  

cohabitation between the adulterer and the adulteress.  

Such a definition would require a finding on the degree of  

infidelity.26 In other instances, the spouses may also be  

punishable for adultery. Such a provision raises a doubt  

as to how that may secure the relationship between the  

spouses and the institution of marriage. Another  

variation, in some jurisdictions is that cognizance of the  

offence of adultery is taken only at the instance of the  

State, and its enforcement is generally a rarity.   

7.1. Various legal systems have found adulterous  

conduct sufficiently injurious to justify some form  

of criminal sanction. Such conduct is one, which  

the society is not only unwilling to approve, but  

also attaches a criminal label to it.    

 United States of America  

                                       25 Illinois Criminal Code, 720 ILCS 5/11-35, Adultery  “(a) A person commits adultery when he or she has sexual intercourse with another not his or  

her spouse, if the behavior is open and notorious,…”  26 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal Of  

Family Law 45, 51-52 (1991)

25    

In the United States of America, 17 out of 50  

States continue to treat „adultery‟ as a criminal  

offence under the State law.27 The  

characterization of the offence differs from State  

to State.   

In the case of Oliverson v. West Valley City28,  

the constitutionality of the Utah adultery  

statute29 was challenged. It was contended that  

the statute offends the right to privacy and  

violates substantive due process of law under the  

U.S. Constitution. The U.S. Court held that  

adultery is a transgression against the  

relationship of marriage which the law endeavors  

to protect. The State of Utah had an interest in  

preventing adultery. Whether to use criminal  

sanction was considered a matter particularly  

within the ambit of the legislature. Given the  

special interest of the State, it was considered  

rational to classify adultery as a crime.    

                                       27 Abhinav Sekhri, The Good, The Bad, and The Adulterous: Criminal Law and Adultery in  

India, 10 Socio Legal Review 47 (2014)  28 875 F. Supp. 1465  29 Utah Code Ann. 76-7-103, ―(1) A married person commits adultery when he voluntarily has  

sexual intercourse with a person other than his spouse. (2) Adultery is a class B  misdemeanour.‖

26    

A similar provision exists in the State of New  

York, wherein adultery is treated as a Class B  

misdemeanor.30   

By way of contrast, in the State of North  

Carolina, it was held in the Judgment of Hobbs v.  

Smith31, that adultery should not be treated as a  

criminal offence. The Superior Court of North  

Carolina, relied on the judgment of the U.S.  

Supreme Court, in Lawrence v. Texas32 wherein it  

was recognized that the right to liberty provides  

substantial protection to consenting adults with  

respect to decisions regarding their private sexual  

conduct. The decision of an individual to commit  

adultery is a personal decision, which is  

sufficiently similar to other personal choices  

regarding marriage, family, procreation,  

contraception, and sexuality, which fall within  

the area of privacy. Following this reasoning in  

Lawrence, the Superior Court of the State of  

                                       30 New York Penal Laws, Article 255.17-Adultery, “A person is guilty of adultery when he  

engages in sexual intercourse with another person at a time when he has a living spouse, or  

the other person has a living spouse. Adultery is a class B misdemeanour.”  31 No. 15 CVS 5646 (2017) [Superior Court of North Carolina)  32 539 US 558 (2003)

27    

North Carolina held that the State Law  

criminalizing adultery violated the substantive  

due process, and the right to liberty under the  

Fourteenth Amendment to the U.S. Constitution,  

and the provision criminalizing adultery was  

declared unconstitutional.  

 Canada  

In Canada, the Criminal Code of Canada under  

Section 172 imposes criminal sanctions for  

adulterous conduct.  This provision was  

introduced in 191833, and continues to remain on  

the Criminal Code.  

The Criminal Code of Canada prohibits  

endangering the morals of children in a home  

where one “participates in adultery or sexual  

immorality or indulges in habitual drunkenness  

or any other form of vice.”   

                                       33 Criminal Code of Canada, 1985, Section 172, “(1) Every one who, in the home of a child,  

participates in adultery or sexual immorality or indulges in habitual drunkenness or any  other form of vice, and thereby endangers the morals of the child or renders the home an  unfit place for the child to be in, is guilty of an indictable offence and liable to imprisonment  for a term not exceeding two years.  (2) For the purposes of this section, ―child‖ means a person who is or appears to be under  the age of eighteen years.‖

28    

Furthermore, Canada has a provision for  

granting divorce in cases of “breakdown of  

marriages”, and adultery is a ground for  

establishing the same.34    

 Malaysia  

In Malaysia, adultery is punishable as a crime  

under the Islamic Laws. However, the Law Reform  

(Marriage and Divorce) Act, 1976 made it a civil  

wrong, for all non-Muslims. Similar to the  

position in Canada, this Act makes adultery a  

ground for granting divorce, as it is a proof of  

“Breakdown of Marriage”.35 Interestingly though,  

the Act also allows either spouse, to be an  

aggrieved party and claim damages from the  

adulterer or adulteress.36  

                                       34 Divorce Act, 1968, ―Section 8 (1) A court of competent jurisdiction may, on application by  

either or both spouses, grant a divorce to the spouse or spouses on the ground that there  has been a breakdown of their marriage.   (2) Breakdown of a marriage is established only if:  (a) …..  (b) the spouse against whom the divorce proceeding is brought has, since celebration of the  marriage,  (i) committed adultery, or …..‖  

35 S. 54(1)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,   “54. (1) In its inquiry into the facts and circumstances alleged as causing or leading to the  breakdown of the marriage, the court shall have regard to one or more of the following facts,  that is to say:  (a) that the respondent has committed adultery and the petitioner finds it intolerable to live  with the respondent…..‖  

36 S. 58, Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,  

29    

 Japan  

In Japan, the provision for adultery was  

somewhat similar to the present Section 497 of  

I.P.C.; it punished the woman and the adulterer  

only on the basis of the complaint filed by the  

husband. In case the act of adultery was  

committed with the consent of the husband, there  

would be no valid demand for prosecution of the  

offence37. This provision has since been deleted.38  

Adultery is now only a ground for divorce in  

Japan under the Civil Code.39  

 South Africa  

                                                                                                                       ―58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a party to  the marriage praying for divorce and alleging adultery, the party shall make the alleged  adulterer or adulteress a co-respondent, unless excused by the court on special grounds  from doing so.  (2) A petition under subsection (1) may include a prayer that the co-respondent be  condemned in damages in respect of the alleged adultery.  

(3) Where damages have been claimed against a co-respondent— (a) if, after the close of the  evidence for the petitioner, the court is of the opinion that there is not sufficient evidence  against the co-respondent to justify requiring him or her to reply, the co-respondent shall be  discharged from the proceedings; or (b) if, at the conclusion of the hearing, the court is  satisfied that adultery between the respondent and co-respondent has been proved, the  court may award the petitioner such damages as it may think fit, but so that the award  shall not include any exemplary or punitive element.‖  

37 S. 183, Penal Code, 1907 [Japan], “Whoever commits adultery with a married woman will  be punished by prison upto two years. The same applies to the other party of the adultery.  These offences are only prosecuted on demand of the husband. If the husband has allowed  the Adultery, his demand is not valid.‖ [ as translated by Karl-Friedrich Lenz, in History of  

Law in Japan since 1868, ed. Wilhelm Rohl, published by Brill, 2005, at page 623]   38 H. Meyers, ―Revision of Criminal Code of Japan‖ Washington Law Review & State Bar  Journal, Vol. 25, (1950) at pp. 104-134  39 Article 770, Civil Code, 1896. [Japan], ―Article 770 (1) Only in the cases stated  

in the following items may either husband or wife file a suit for divorce: (i) if a spouse has  committed an act of unchastity; ….‖

30    

In South Africa, in the case of DE v. RH40 The  

Constitutional Court of South Africa struck down  

adultery as a ground for seeking compensation by  

the aggrieved persons. The Court relied on an  

earlier judgment of Green v. Fitzgerald41 wherein  

it was held that the offence of adultery has fallen  

in disuse, and ―has ceased to be regarded as a  

crime‖.42 The Court noted that even though  

adultery was of frequent occurrence in South  

Africa, and the reports of divorce cases were daily  

published in the newspapers in South Africa, the  

authorities took no notice of the offence.   

 Turkey  

In Turkey, the decision of the Constitutional  

Court of Turkey from 199643 is another instance  

where the Court struck down the provision of  

adultery as a criminal offence from the Turkish  

Penal Code of 1926.  The Court noted that the  

provision was violative of the Right to Equality, as  

                                       40 RH v. DE (594/2013) [2014] ZASCA 133 (25 September 2014)  411914 AD 88   42 Id.  43 Anayasa Mahkemesi, 1996/15; 1996/34 (Sept. 23, 1996)  

See also, Anayasa Mahakemsi, 1998/3; 1998/28 (June 23, 1998) and Anayasa  

Mahakemsi, 1997/45. 1998/48 (July 16, 1998)

31    

guaranteed by the Turkish Constitution since it  

treated men and women differently for the same  

act.   

 South Korea  

In South Korea, adultery as a criminal offence  

was struck down by the Constitutional Court of  

Korea in, what is popularly known as, the  

Adultery Case of February 26, 201544. The  

Constitutional Court of Korea held that Article  

241, which provided for the offence of adultery,  

was unconstitutional as it violated Article 10 of  

the Constitution, which promotes the right to  

personality, the right to pursue happiness, and  

the right to self-determination. The right to self-

determination connotes the right to sexual self-

determination that is the freedom to choose  

sexual activities and partners.  Article 241 was  

considered to restrict the right to privacy  

protected under Article 17 of the Constitution  

since it restricts activities arising out of sexual  

                                       44 Adultery Case, 27-1 (A) KCCR 20, February 26, 2015

32    

life belonging to the intimate private domain.  

Even though the provision had a legitimate object  

to preserve marital fidelity between spouses, and  

monogamy, the court struck it down as the  

provision failed to achieve the “appropriateness of  

means and least restrictiveness” The Court held  

as follows:  

―In recent years, the growing  perception of the Korean society  has changed in the area of  marriage and sex with the  changes of the traditional family  system and family members‘ role  and position, along with rapid  spread of individualism and  liberal views on sexual life. Sexual  life and love is a private matter,  which should not be subject to the  control of criminal punishment.  Despite it is unethical to violate  the marital fidelity, it should not  be punished by criminal law….   

…..  

…The exercise of criminal  punishment should be the last  resort for the clear danger against  substantial legal interests and  should be limited at least. It  belongs to a free domain of  individuals for an adult to have  voluntary sexual relationships, but  it may be regulated by law when  it is expressed and it is against  the good sexual culture and

33    

practice. It would infringe on the  right to sexual self-determination  and to privacy for a State to  intervene and punish sexual life  which should be subject to sexual  morality and social orders.   

The tendency of modern criminal  law directs that the State should  not exercise its authority in case  an act, in essence, belongs to  personal privacy and is not  socially harmful or in evident  violation of legal interests, despite  the act is in contradiction to  morality. According to this  tendency, it is a global trend to  abolish adultery crimes.  

    (Emphasis supplied)    

The Court concluded that it was difficult to see  

how criminalization of adultery could any longer  

serve the public interest of protecting the  

monogamy-based marriage system, maintain  

good sexual culture, and the marital fidelity  

between spouses. A consideration of Article 241  

which punishes adultery failed to achieve the  

appropriateness of means and least  

restrictiveness. Since the provision excessively  

restricted a person‟s sexual autonomy and  

privacy by criminally punishing the private and

34    

intimate domain of sexual life, the said penal  

provision was said to have lost the balance of  

State interest and individual autonomy.  

8. PREVIOUS CHALLENGES TO ADULTERY IN INDIA  

This court has previously considered challenges to  

Section 497 inter alia on the ground that the impugned  

Section was violative of Articles 14 and 15 of the  

Constitution.  

8.1. In Yusuf Abdul Aziz v. State of Bombay45, Section  

497 was challenged before this Court inter alia on  

the ground that it contravened Articles 14 and 15  

of the Constitution, since the wife who is pari  

delicto with the adulterous man, is not  

punishable even as an “abettor.” A Constitution  

Bench of this Court took the view that since  

Section 497 was a special provision for the benefit  

of women, it was saved by Article 15(3) which is  

an enabling provision providing for protective  

discrimination.  

                                       45 1954 SCR 930

35    

In Yusuf Aziz (supra), the Court noted that  

both Articles 14 and 15 read together validated  

Section 497.   

8.2. Later, in Sowmithri Vishnu v. Union of India &  

Anr.46, a three-judge bench of this Court  

addressed a challenge to Section 497 as being  

unreasonable and arbitrary in the classification  

made between men and women, unjustifiably  

denied women the right to prosecute her husband  

under Section 497.   

It was contended that Section 497 conferred a  

right only upon the husband of the adulterous  

woman to prosecute the adulterer; however, no  

such right was bestowed upon the wife of an  

adulterous man. The petitioners therein  

submitted that Section 497 was a flagrant  

violation of gender discrimination against women.  

The Court opined that the challenge had no legal  

basis to rest upon. The Court observed that the  

argument really centred on the definition, which  

                                       46 (1985) Supp SCC 137

36    

was required to be re-cast to punish both the  

male and female offender for the offence of  

adultery.   

After referring to the recommendations  

contained in the 42nd Report of the Law  

Commission of India, the Court noted that there  

were two opinions on the desirability of retaining  

Section 497. However it concluded by stating that  

Section 497 could not be struck down on the  

ground that it would be desirable to delete it from  

the statute books.   

The Court repelled the plea on the ground that  

it is commonly accepted that it is the man who is  

the „seducer‟, and not the woman. The Court  

recognized that this position may have undergone  

some change over the years, but it is for the  

legislature to consider whether Section 497  

should be amended appropriately so as to take  

note of the „transformation‟ which the society has  

undergone.

37    

8.3. In V. Revathi v. Union of India47, a two-judge  

bench of this court upheld the constitutional  

validity of Section 497, I.P.C. and Section 198(2)  

of the Cr.P.C. The petitioner contended that  

whether or not the law permitted a husband to  

prosecute his disloyal wife, a wife cannot be  

lawfully disabled from prosecuting her disloyal  

husband. Section 198(2) Cr.P.C. operates as a  

fetter on the wife in prosecuting her adulterous  

husband. Hence, the relevant provision is  

unconstitutional on the ground of obnoxious  

discrimination.   

This Court held that Section 497 I.P.C. and  

Section 198(2) Cr.P.C. together form a legislative  

package. In essence, the former being  

substantive, and the latter being largely  

procedural. Women, under these provisions,  

neither have the right to prosecute, as in case of a  

wife whose husband has an adulterous  

                                       47 (1988) 2 SCC 72

38    

relationship with another woman; nor can they be  

prosecuted as the pari delicto.    

8.4. The view taken by the two-judge bench in Revathi  

(supra), that the absence of the right of the wife of  

an adulterous husband to sue him, or his  

paramour, was well-balanced by the inability of  

the husband to prosecute his adulterous wife for  

adultery, cannot be sustained. The wife‟s inability  

to prosecute her husband and his paramour,  

should be equated with the husband‟s ability to  

prosecute his wife‟s paramour.   

9. In the present case, the constitutionality of Section 497 is  

assailed by the Petitioners on the specific grounds that  

Section 497 is violative of Articles 14, 15 and 21.   

9.1. Mr. Kaleeswaram Raj learned Counsel appearing  

for the Petitioners and Ms. Meenakshi Arora,  

learned Senior Counsel appearing for the  

Intervenors inter alia submitted that Section 497  

criminalizes adultery based on a classification  

made on sex alone. Such a classification bears no

39    

rational nexus with the object sought to be  

achieved and is hence discriminatory.  

It was further submitted that Section 497  

offends the Article 14 requirement of equal  

treatment before the law and discriminates on the  

basis of marital status. It precludes a woman  

from initiating criminal proceedings. Further, the  

consent of the woman is irrelevant to the offence.  

Reliance was placed in this regard on the  

judgment of this Court in W. Kalyani v. State48.  

The Petitioners submit that the age-old concept  

of the wife being the property of her husband,  

who can easily fall prey to seduction by another  

man, can no longer be justified as a rational basis  

for the classification made under Section 497.   

An argument was made that the „protection‟  

given to women under Section 497 not only  

highlights her lack of sexual autonomy, but also  

ignores the social repercussions of such an  

offence.  

                                       48 (2012) 1 SCC 358

40    

The Petitioners have contended that Section  

497 of the I.P.C. is violative of the fundamental  

right to privacy under Article 21, since the choice  

of a partner with whom she could be intimate,  

falls squarely within the area of autonomy over a  

person‟s sexuality. It was submitted that each  

individual has an unfettered right (whether  

married or not; whether man or woman) to  

engage in sexual intercourse outside his or her  

marital relationship.   

The right to privacy is an inalienable right,  

closely associated with the innate dignity of an  

individual, and the right to autonomy and self-

determination to take decisions. Reliance was  

placed on the judgment in Shafin Jahan v.  

Asokan K.M. & Ors.49 where this Court observed  

that each individual is guaranteed the freedom in  

determining the choice of one‟s partner, and any  

interference by the State in these matters, would  

                                       49 2018 SCC Online SC 343

41    

have a serious chilling effect on the exercise of  

the freedoms guaranteed by the Constitution.  

The Petitioners placed reliance on the  

judgment of K.S. Puttaswamy v. Union of India50  

wherein a nine-judge bench of this Court held  

that the right to make decisions on vital matters  

concerning one‟s life are inviolable aspects of  

human personality. This Court held that:  

― 169. ….. The autonomy of the  individual is the ability to make  decisions on vital matters of concern  to life. Privacy has not been couched  as an independent fundamental  right. But that does not detract from  the constitutional protection afforded  to it, once the true nature of privacy  and its relationship with those  fundamental rights which are  expressly protected is understood.  Privacy lies across the spectrum of  protected freedoms. The guarantee of  equality is a guarantee against  arbitrary state action. It prevents the  state from discriminating between  individuals. The destruction by the  state of a sanctified personal space  whether of the body or of the mind is  violative of the guarantee against  arbitrary state action….‖  

               (Emphasis supplied)  

                                       50 (2017) 10 SCC 1

42    

The Petitioners and Intervenors have prayed  

for striking down Section 479 I.P.C. and Section  

198(2) of the Cr.P.C. as being unconstitutional,  

unjust, illegal,  arbitrary, and violative of the  

Fundamental Rights of citizens.  

9.2. On the other hand, Ms. Pinky Anand, learned  

ASG forcefully submitted that adultery must be  

retained as a criminal offence in the I.P.C. She  

based her argument on the fact that adultery has  

the effect of breaking up the family which is the  

fundamental unit in society. Adultery is  

undoubtedly morally abhorrent in marriage, and  

no less an offence than the offences of battery, or  

assault. By deterring individuals from engaging in  

conduct which is potentially harmful to a marital  

relationship, Section 497 is protecting the  

institution of marriage, and promoting social well-

being.   

The Respondents submit that an act which  

outrages the morality of society, and harms its

43    

members, ought to be punished as a crime.  

Adultery falls squarely within this definition.   

The learned ASG further submitted that  

adultery is not an act that merely affects just two  

people; it has an impact on the aggrieved spouse,  

children, as well as society. Any affront to the  

marital bond is an affront to the society at large.  

The act of adultery affects the matrimonial rights  

of the spouse, and causes substantial mental  

injury.  

Adultery is essentially violence perpetrated by  

an outsider, with complete knowledge and  

intention, on the family which is the basic unit of  

a society.   

It was argued on behalf of the Union of India  

that Section 497 is valid on the ground of  

affirmative action. All discrimination in favour of  

women is saved by Article 15(3), and hence were  

exempted from punishment. Further, an under-

inclusive definition is not necessarily  

discriminatory. The contention that Section 497

44    

does not account for instances where the  

husband has sexual relations outside his  

marriage would not render it unconstitutional.   

It was further submitted that the sanctity of  

family life, and the right to marriage are  

fundamental rights comprehended in the right to  

life under Article 21. An outsider who violates and  

injures these rights must be deterred and  

punished in accordance with criminal law.   

It was finally suggested that if this Court finds  

any part of this Section violative of the  

Constitutional provisions, the Court should read  

down that part, in so far as it is violative of the  

Constitution but retain the provision.   

DISCUSSION AND ANALYSIS   

10. Section 497 is a pre-constitutional law which was  

enacted in 1860. There would be no presumption of  

constitutionality in a pre-constitutional law (like Section  

497) framed by a foreign legislature. The provision would

45    

have to be tested on the anvil of Part III of the  

Constitution.  

11. Section 497 of the I.P.C. it is placed under Chapter XX  

of “Offences Relating to Marriage”.  

The provision of Section 497 is replete with anomalies  

and incongruities, such as:  

i. Under Section 497, it is only the male-paramour  

who is punishable for the offence of adultery.  

The woman who is pari delicto with the  

adulterous male, is not punishable, even as an  

„abettor‟.   

The adulterous woman is excluded solely on  

the basis of gender, and cannot be prosecuted  

for adultery51.  

ii. The Section only gives the right to prosecute to  

the husband of the adulterous wife. On the  

other hand, the wife of the adulterous man, has  

no similar right to prosecute her husband or his  

paramour.   

                                       51 W Kalyani v. State, (2012) 1 SCC 358; at para 10.

46    

iii. Section 497 I.P.C. read with Section 198(2) of  

the Cr.P.C. only empowers the aggrieved  

husband, of a married wife who has entered into  

the adulterous relationship to initiate  

proceedings for the offence of adultery.   

iv. The act of a married man engaging in sexual  

intercourse with an unmarried or divorced  

woman, does not constitute „adultery‟ under  

Section 497.   

v. If the adulterous relationship between a man  

and a married woman, takes place with the  

consent and connivance of her husband, it  

would not constitute the offence of adultery.   

The anomalies and inconsistencies in Section 497  

as stated above, would render the provision liable to be  

struck down on the ground of it being arbitrary and  

discriminatory.  

12. The constitutional validity of section 497 has to be  

tested on the anvil of Article 14 of the Constitution.

47    

12.1.  Any legislation which treats similarly situated  

persons unequally, or discriminates between  

persons on the basis of sex alone, is liable to be  

struck down as being violative of Articles 14 and  

15 of the Constitution, which form the pillars  

against the vice of arbitrariness and  

discrimination.  

12.2. Article 14 forbids class legislation; however, it  

does not forbid reasonable classification. A  

reasonable classification is permissible if two  

conditions are satisfied:  

i. The classification is made on the basis of an  

„intelligible differentia‟ which distinguishes  

persons or things that are grouped together, and  

separates them from the rest of the group; and  

ii. The said intelligible differentia must have a  

rational nexus with the object sought to be  

achieved by the legal provision.  

The discriminatory provisions in Section 497  

have to be considered with reference to the  

classification made. The classification must have

48    

some rational basis,52 or a nexus with the object  

sought to be achieved.   

With respect to the offence of adultery  

committed by two consenting adults, there ought  

not to be any discrimination on the basis of sex  

alone since it has no rational nexus with the  

object sought to be achieved.   

Section 497 of the I.P.C., makes two  

classifications:  

i. The first classification is based on who has the  

right to prosecute:  

It is only the husband of the married woman  

who indulges in adultery, is considered to be  

an aggrieved person given the right to  

prosecute for the offence of adultery.   

Conversely, a married woman who is the  

wife of the adulterous man, has no right to  

prosecute either her husband, or his  

paramour.  

                                       52 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (A legislation may not be amenable to a  

challenge on the ground of violation of Article 14 of the Constitution if its intention is to  

give effect to Articles 15 and 16 or when the differentiation is not unreasonable or  

arbitrary).

49    

ii. The second classification is based on who can  

be prosecuted.  

It is only the adulterous man who can be  

prosecuted for committing adultery, and not  

the adulterous woman, even though the  

relationship is consensual; the adulterous  

woman is not even considered to be an  

“abettor” to the offence.   

The aforesaid classifications were based on the  

historical context in 1860 when the I.P.C. was  

enacted. At that point of time, women had no  

rights independent of their husbands, and were  

treated as chattel or „property‟ of their husbands.   

Hence, the offence of adultery was treated as  

an injury to the husband, since it was considered  

to be a „theft‟ of his property, for which he could  

proceed to prosecute the offender.   

The said classification is no longer relevant or  

valid, and cannot withstand the test of Article 14,  

and hence is liable to be struck down on this  

ground alone.  

50    

12.3. A law which deprives women of the right to  

prosecute, is not gender-neutral. Under Section  

497, the wife of the adulterous male, cannot  

prosecute her husband for marital infidelity. This  

provision is therefore ex facie discriminatory  

against women, and violative of Article 14.   

Section 497 as it stands today, cannot hide in  

the shadows against the discerning light of Article  

14 which irradiates anything which is  

unreasonable, discriminatory, and arbitrary.  

13. A law which could have been justified at the time of its  

enactment with the passage of time may become out-

dated and discriminatory with the evolution of society  

and changed circumstances.53 What may have once been  

a perfectly valid legislation meant to protect women in the  

historical background in which it was framed, with the  

passage of time of over a century and a half, may become  

obsolete and archaic.   

                                       53 Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222;   

See also Ratan Arya v. State of Tamil Nadu, (1986) 3 SCC 385

51    

A provision previously not held to be unconstitutional,  

can be rendered so by later developments in society,  

including gender equality.54   

Section 497 of the I.P.C. was framed in the historical  

context that the infidelity of the wife should not be  

punished because of the plight of women in this country  

during the 1860‟s. Women were married while they were  

still children, and often neglected while still young,  

sharing the attention of a husband with several rivals.55  

This situation is not true 155 years after the provision  

was framed. With the passage of time, education,  

development in civil-political rights and socio-economic  

conditions, the situation has undergone a sea change.  

The historical background in which Section 497 was  

framed, is no longer relevant in contemporary society.  

It would be unrealistic to proceed on the basis that  

even in a consensual sexual relationship, a married  

woman, who knowingly and voluntarily enters into a  

sexual relationship with another married man, is a  

„victim‟, and the male offender is the „seducer‟.  

                                       54 John Vallamattom v. Union of India, (2003) 6 SCC 611  55 ‗A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas  

Babington Macaulay, Note Q

52    

 Section 497 fails to consider both men and women as  

equally autonomous individuals in society.   

In Anuj Garg v. Hotel Assn. of India,56 this Court held  

that:   

―20. At the very outset we want to  define the contours of the discussion  which is going to ensue. Firstly, the  issue floated by the State is very  significant, nonetheless it does not fall  in the same class as that of rights  which it comes in conflict with,  ontologically. Secondly, the issue at  hand has no social spillovers. The  rights of women as individuals rest  beyond doubts in this age. If we  consider (various strands of) feminist  jurisprudence as also identity politics, it  is clear that time has come that we take  leave of the theme encapsulated under  Section 30. And thirdly we will also  focus our attention on the interplay of  doctrines of self-determination and an  individual's best interests.  ……..   26. When a discrimination is sought to  be made on the purported ground of  classification, such classification must  be founded on a rational criteria. The  criteria which in absence of any  constitutional provision and, it will bear  repetition to state, having regard to the  societal conditions as they prevailed in  early 20th century, may not be a  rational criteria in the 21st century. In  the early 20th century, the hospitality  sector was not open to women in  

                                       56 (2008) 3 SCC 1

53    

general. In the last 60 years, women in  India have gained entry in all spheres  of public life. They have also been  representing people at grassroot  democracy. They are now employed as  drivers of heavy transport vehicles,  conductors of service carriages, pilots,  et. al. ...‖                           (Emphasis supplied)  

 The time when wives were invisible to the law, and  

lived in the shadows of their husbands, has long since  

gone by. A legislation that perpetuates such stereo-types  

in relationships, and institutionalises discrimination is a  

clear violation of the fundamental rights guaranteed by  

Part III of the Constitution.   

There is therefore, no justification for continuance of  

Section 497 of the I.P.C. as framed in 1860, to remain on  

the statute book.  

14. Article 15(3) of the Constitution is an enabling  

provision which permits the State to frame beneficial  

legislation in favour of women and children, to protect  

and uplift this class of citizens.   

Section 497 is a penal provision for the offence of  

adultery, an act which is committed consensually

54    

between two adults who have strayed out of the marital  

bond. Such a provision cannot be considered to be a  

beneficial legislation covered by Article 15(3) of the  

Constitution.   

The true purpose of affirmative action is 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‟.   

This Court in Thota Sesharathamma and Anr. v. Thota  

Manikyamma (Dead) by Lrs. And Ors.57 held that:  

―Art. 15(3) relieves from the rigour of  Art. 15(1) and charges the State to  make special provision to accord to  women socio-economic equality. As a  fact Art. 15(3) as a fore runner to  common code does animate to make  law to accord socio-economic equality to  every female citizen of India,  irrespective of religion, race, caste or  religion.‖    

In W. Kalyani v. State58 this Court has recognised the  

gender bias in Section 497. The court in Kalyani (supra)  

observed that “The provision is currently under criticism  

from certain quarters for showing a string gender bias for it  

                                       57 (1991) 4 SCC 312  58 (2012) 1 SCC 358

55    

makes the position of a married woman almost as a  

property of her husband.”  

The purpose of Article 15(3) is to further socio-

economic equality of women. It permits special legislation  

for special classes. However, Article 15(3) cannot operate  

as a cover for exemption from an offence having penal  

consequences.   

A Section which perpetuates oppression of women is  

unsustainable in law, and cannot take cover under the  

guise of protective discrimination.  

15.  The Petitioners have contended that the right to  

privacy under Article 21 would include the right of two  

adults to enter into a sexual relationship outside  

marriage.   

The right to privacy and personal liberty is, however,  

not an absolute one; it is subject to reasonable  

restrictions when legitimate public interest is involved.   

It is true that the boundaries of personal liberty are  

difficult to be identified in black and white; however, such  

liberty must accommodate public interest. The freedom to

56    

have a consensual sexual relationship outside marriage  

by a married person, does not warrant protection under  

Article 21.  

In the context of Article 21, an invasion of privacy by  

the State must be justified on the basis of a law that is  

reasonable and valid. Such an invasion must meet a  

three-fold requirement as set held in Justice K. S.  

Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra): (i)  

legality, which postulates the existence of law; (ii) need,  

defined in terms of a legitimate State interest, and (iii)  

proportionality, which ensures a rational nexus between  

the object and the means adopted. Section 497 as it  

stands today, fails to meet the three-fold requirement,  

and must therefore be struck down.  

16. The issue remains as to whether „adultery‟ must be  

treated as a penal offence subject to criminal sanctions,  

or marital wrong which is a valid ground for divorce.   

16.1. One view is that family being the fundamental  

unit in society, if the same is disrupted, it would  

impact stability and progress. The State,

57    

therefore, has a legitimate public interest in  

preserving the institution of marriage.  

Though adultery may be an act committed in  

private by two consenting adults, it is  

nevertheless not a victim-less crime. It violates  

the sanctity of marriage, and the right of a spouse  

to marital fidelity of his/her partner. It impacts  

society as it breaks the fundamental unit of the  

family, causing injury not only to the spouses of  

the adulteror and the adulteress, it impacts the  

growth and well-being of the children, the family,  

and society in general, and therefore must be  

subject to penal consequences.  

Throughout history, the State has long  

retained an area of regulation in the institution of  

marriage. The State has regulated various aspects  

of the institution of marriage, by determining the  

age when an adult can enter into marriage; it  

grants legal recognition to marriage; it creates  

rights in respect of inheritance and succession; it  

provides for remedies like judicial separation,

58    

alimony, restitution of conjugal rights; it  

regulates surrogacy, adoption, child custody,  

guardianship, partition, parental responsibility;  

guardianship and welfare of the child. These are  

all areas of private interest in which the State  

retains a legitimate interest, since these are areas  

which concern society and public well-being as a  

whole.   

Adultery has the effect of not only jeopardising  

the marriage between the two consenting adults,  

but also affects the growth and moral fibre of  

children. Hence the State has a legitimate public  

interest in making it a criminal offence.  

16.2. The contra view is that adultery is a marital  

wrong, which should have only civil  

consequences. A wrong punishable with criminal  

sanctions, must be a public wrong against society  

as a whole, and not merely an act committed  

against an individual victim.   

To criminalize a certain conduct is to declare  

that it is a public wrong which would justify

59    

public censure, and warrant the use of criminal  

sanction against such harm and wrong doing.   

The autonomy of an individual to make his or  

her choices with respect to his/her sexuality in  

the most intimate spaces of life, should be  

protected from public censure through criminal  

sanction. The autonomy of the individual to take  

such decisions, which are purely personal, would  

be repugnant to any interference by the State to  

take action purportedly in the „best interest‟ of  

the individual.  

Andrew Ashworth and Jeremy Horder in their  

commentary titled „Principles of Criminal Law‟59  

have stated that the traditional starting point of  

criminalization is the „harm principle‟ the essence  

of which is that the State is justified in  

criminalizing a conduct which causes harm to  

others. The authors opine that the three elements  

for criminalization are: (i) harm, (ii) wrong doing,  

and (iii) public element, which are required to be  

                                       59 Oxford University Press, (7th Edn.) May 2013

60    

proved before the State can classify a wrongful  

act as a criminal offence.   

John Stuart Mill states that ―the only purpose  

for which power can be rightly exercised over the  

member of a civilized community against his will is  

to prevent harm to others.‖ 60  

The other important element is wrongfulness.  

Andrew Simester and Andreas von Hirsch opine  

that a necessary pre-requisite of criminalization  

is that the conduct amounts to a moral wrong.61  

That even though sexual infidelity may be morally  

wrong conduct, this may not be a sufficient  

condition to criminalize the same.   

17. In my view, criminal sanction may be justified where  

there is a public element in the wrong, 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.   

                                       60 Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman, Roberts,  

& Green Co. 1869, 4th Edn.  61 A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles Of  

Criminalisation, Oxford: Hart Publishing (2011)

61    

Adultery undoubtedly is a moral wrong qua the spouse  

and the family. The issue is whether there is a sufficient  

element of wrongfulness to society in general, in order to  

bring it within the ambit of criminal law?   

The element of public censure, visiting the delinquent  

with penal consequences, and overriding individual  

rights, would be justified only when the society is directly  

impacted by such conduct. In fact, a much stronger  

justification is required where an offence is punishable  

with imprisonment.  

The State must follow the minimalist approach in the  

criminalization of offences, keeping in view the respect for  

the autonomy of the individual to make his/her personal  

choices.   

The right to live with dignity includes the right not to  

be subjected to public censure and punishment by the  

State except where absolutely necessary. In order to  

determine what conduct requires State interference  

through criminal sanction, the State must consider  

whether the civil remedy will serve the purpose. Where a

62    

civil remedy for a wrongful act is sufficient, it may not  

warrant criminal sanction by the State.  

18. In view of the aforesaid discussion, and the anomalies  

in Section 497, as enumerated in para 11 above, it is  

declared that :  

(i) Section 497 is struck down as unconstitutional  

being violative of Articles 14, 15 and 21 of the  

Constitution.   

(ii) Section 198(2) of the Cr.P.C. 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.  

(iii) The decisions in Sowmithri Vishnu (supra), V.  

Rewathi (supra) and W. Kalyani (supra) hereby  

stand overruled.  

……………………..J.  (INDU MALHOTRA)  

New Delhi  September 27, 2018