Adultery may not be cause of unhappy marriage, but can be the result: SC

New Delhi: The Supreme Court of India on Thursday while striking down the law on adultery – Indian Penal Code (IPC) Section 497 – said that treating it as an offence would tantamount to punishing people who are unhappy in marital relationships.

The judges said that a punishment is unlikely to establish commitment in a relationship.

“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,” the judges wrote in their order.

“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 crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not,” the judgement said.

The five-judge bench comprising Chief Justice of India (CJI) Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra observed that the law on adultery is archaic, has long outlived its purpose, does not square with today’s Constitutional morality. Having lost its rationale long ago it in today’s age is `utterly irrational’.

The judges gave examples of several countries where adultery is not considered a crime. They said that while 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, a number of countries have done away with adultery as a crime. These include 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. In South Korea and Guatemala provisions similar to Section 497 have been struck down by the Constitutional courts of those nations.

“Adultery as a crime is no more prevalent in China, Japan, Australia, Brazil and many western European countries. The diversity of culture in those countries can be judicially taken note of,” the judges said.

“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,” Justice Nariman said.

While saying Section 497 is unconstitutional, Justice Chandrachud said that 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.

“Section 497 lacks an adequately determining principle to criminalise consensual sexual activity and is manifestly arbitrary… 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; 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,” he said in his order.