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A five Judge Bench consisting of Chief Justice of India Dipak Misra, Justice AM Khanwilkar, Justice Rohinton Nariman, Justice DY Chandrachud, and Justice Indu Malhotra passed a Judgement in conformity with Right to Equality by striking down Section 497 the Indian Penal Code (IPC),

“Section 497 in The Indian Penal Code

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.”

After path breaking Judgements on Triple Talaq and Section 377  of the IPC, the five Judge Bench of the Supreme Court, on Thursday, 27th September 2018, in the matter of Joseph Shine vs. Union of India unanimously held that the offence of adultery is unconstitutional in the eyes of law.

However, the Court held that adultery will be a ground for divorce or dissolution of marriage.

In CJI Dipak Misra’s Judgement (for himself and on behalf of Justice AM Khanwilkar) referred to KS Puttaswamy and another v. Union of India and others (Judgement on Right to Privacy) and held that “…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 of the body entitles an individual to the integrity of the physical aspects of personhood…when such an act adultery is treated as a crime and how is faces the frown of Article 14 and 21 of the Constitution.” and reiterated concept of dignity of a woman, in the context of autonomy, desire, choice and identity, the part of Judgement. The CJI further held that “adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage” and also while referring to another Judgement- stated, “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.

Justice R F Nariman in a separate Judgment concurred with the Judgments of CJI Misra and Justice Khanwilkar, referred to Shayara Bano v. Union of India and others case holding Section 497 was an archaic provision which had lost its rationale. “Ancient notion of man being the perpetrator and woman being victim of adultery no longer holds good.” and “…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.”

Justice Chandrachud’s views sheds light on protection of privacy of an individual in institution of marriage and he states in his Judgement that “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.”

Therefore, the Supreme Court delivered its Judgement in parity with concept of individual liberty with no discrimination on the basis of gender and held that adultery undoubtedly is a moral wrong in capacity of husband and wife relationship but there is no sufficient element for adultery to come under the ambit of criminal law. Thus, adultery will be taken as a ground for divorce to maintain the dignity of husband and wife.

Taruna Verma

Senior Associate

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