The case which relates to the constitutionality of Section 497 was filed as Writ Petition (criminal) no. 194 of 2017 before Supreme Court by Joseph Shine & Ors. Earlier this Section came under challenge on several occasions.

In Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930., Section 497 was challenged 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 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 and Articles 14 read with Article 15 validated Section 497.

In Sowmithri Vishnu v. Union of India & Anr, (1985) Supp SCC 137., a three-judge bench of Hon’ble Supreme 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 in this case 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 in this case submitted that Section 497 was a flagrant violation of gender discrimination against women.

The Court had taken the view that the challenge had no legal basis to rest upon and that the definition of adultery must be redefined to punish both the male and female offender for the offence of adultery.

After referring to the recommendations 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 basis of desirability to delete it from the statute books.

The Court opposed the plea on the ground that it is commonly accepted and widely understood 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.

In V. Revathi v. Union of India, (1988) 2 SCC 72., a two-judge bench of Hon’ble Supreme 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.

The Apex Court in this case 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 relationship with another woman; nor can they be prosecuted as the pari delicto.

In the present case, Section 497 is challenged by the Petitioners on the specific grounds that it is violative of Articles 14, 15 and 21. It was submitted by the Petitioners that Section 497 criminalizes adultery based on a classification made on sex alone. Such a classification bears no rational nexus with the object sought to be achieved and is hence discriminatory. It was further submitted by the Petitioners that Section 497 offends the Article 14 requirement of equal treatment before the law and discriminates on the basis of sex. It precludes a woman from initiating criminal proceedings against Adulterous husband and his Adulteress/Paramour.

The Petitioners submitted that the archaic 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.

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 every 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, 2018 SCC Online SC 343., where the 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 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 India, (2017) 10 SCC 1., wherein a nine-judge bench held that the right to make decisions on vital matters concerning one’s life is inviolable aspects of human personality. Hon’ble Supreme Court in this case held that:

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.

Therefore Petitioners 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.

The above contentions were supported by the panel of Hon’ble judges inasmuch as there is no more need for the petitioners to say anything more in support of their cause. Though the operative parts of the judgments can be found in few paragraphs most of these judgments are flooded with legal literature in support of remote issues which does not require any countenance like, dignity of women. The Hon’ble judges made frantic efforts to bring aspects like Sexual Autonomy of women within the scheme of Constitutional Morality.

It appears from the text of Judgments that the Hon’ble Judges have not taken a holistic view of Marriage, rather focused on the issue relating to sexual autonomy as being dominant aspect in a marital relationship, which is not factually and conceptually correct in Indian context. If the views expressed in Puttaswamy judgment are to be taken at face value then a woman’s liberty to make choices with regard to sex partner extend even to her marital life after having children. What impact the infidelity of spouse in marital relationship will have on children and whether children being deprived of parental care due to break-up or emotional turmoil in marital relationship is violation of Article 21 of the Constitution in so far as children is concerned is not considered by the Hon’ble Judges.

Whether Section 497 treats women like chattels or property of men?
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 the assumption that women, like chattels, are the property of men. - - Dipak Mishra CJI.

This view presented as Petitioner’s contention found its support from various observations made by Hon’ble Judges. This view is taken to be correct because in cases where there is “consent” and “connivance” of husband to the sexual intercourse between his wife and her paramour there is a possibility that married man may collude with paramour or for that matter with any stranger expecting any returns from such third party or otherwise for any other reason. It was perceived by the court that a married woman may be subjugated to such a position where in she had to helplessly accept any collusive coercion by males of which one is her own husband.

Few aspects need a mention here. One of the ingredients of Section 497 is that the sexual intercourse must not amount to Rape. In 21st Century it cannot be said that if a woman is involved coercively in sexual intercourse she cannot raise her voice against the offender and file a complaint of rape against offender. The question of married husband treating his wife as property or chattel arises only if a woman cannot raise her voice against the third party offender to whom the married husband had given consent or with whom he connived to force an unwilling wife for a sexual intercourse.

On the other hand, if wife is equally active participant or initiator of the sexual intercourse, by not even treating her as abettor, Section 497 is respecting her Sexual Autonomy. In contemporary society, nowhere it appears that this legislation treats women like chattel. How the legislators conceived women when it was enacted is not a relevant matter for consideration. As on date, women are free, media is playing a key role in taking up the issues of women actively; feminist jurisprudence and feminism are actively supporting the issues of women.

For the above reasons, the only question is whether a woman, in this contemporary society can defend herself from any attempt on the part of her husband to accord his consent to any third party or connive with some third party to involve her in a sexual intercourse against her will and consent. If the answer is in negative, the corollary that follows is that Section 497 does not treat women as chattel.

It is the legislators who allegedly treated the women as chattel when this law was made, but in changed circumstances the law as it stands today has unexpectedly nothing to suggest that it treats women as chattel. It must be viewed from contemporary position of women in 21st century not through the prism of the lawmakers’ perceptions in mid 19th Century.

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. - - R.F. Nariman J.

There is nothing in Section 497 to suggest that a husband can handover his wife like chattel to some third party because, the Section also protects the choice of woman by the expression “not amounting to rape”. If the act of sexual intercourse had come to the notice of husband after its occurrence, and he accorded consent to the paramour, it cannot be argued that prior consent is necessary. The reason is that if husband has consented there is no one else competent to file a complaint as per Section 198 of Cr.PC. Hence the question of prior consent or later consent is irrelevant. What is relevant is consent. If it is there, there is no complaint and the State cannot take note of the offence. Similarly the question of whether anyone treats a wife as a chattel does not arise (in courts) if there is consent, prior or later.

If there is truly any such situation between three parties, it is beyond the contemplation of law, state, judiciary and law enforcing machinery.

Law only affords a reasonable opportunity to the accused person to show that he acted upon the consent accorded by husband or tacit approval of husband and hence it cannot be said that complainant husband is offended by his act of Adultery. The legislative intention does not appear to be to plant ideas in the minds of wrong doers. It only appears to afford an opportunity to husbands to save a marriage by forgiving an erring wife. Or, in the context of society of mid 19th century where children below the age of 18 years were married by old men, it is possible some old men may connive or consent to these adulterous relationships on humanitarian grounds.

Whatever be the case relating to past, the difference between right and wrong faded to the fullest possible extent today, when it is openly accepted that the choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.

In Navtej, one of us (Chandrachud J) held that the right to sexual privacy is a natural right, fundamental to liberty and a soul mate 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.”- - D.Y. Chandrachud J.

The corollary of this view is that adultery is no more any offence, what is there within these consensual intimacies is principle of Constitutional morality based on which the State shall not be allowed to intrude into the personal matters of choice of partners whether within or outside marriage. The learned Judge had not said anything about whether this Constitutional principle also holds good for treating Adultery as a Private Wrong and whether Civil Courts (or Family Courts) can inquire into the question of Adultery for the purpose of granting a Decree of Divorce, because in a Civil Court also a wife may be forced to tender proof of her fidelity.

But what is fundamentally overlooked is, Section 497 does not put the wife to trial. She does not stand as accused person either to rebut the case of her paramour or to prove her own innocence. Her fidelity comes in as a question more in a Civil Court in a divorce case on the ground of Adultery than in a criminal case against her paramour in Section 497.

Whether Sexual fidelity an essential ingredient of an Indian Marriage?
The expression “Indian marriage” is consciously used by the author because, the status of law of adultery in various other countries, more particularly the Western countries was widely discussed in the judgments.

Woman has a special status in Indian law. In rape cases, convictions can be based on testimony of prosecutrix alone. Defence that girl was of easy virtue is not allowed anymore. Section 155(4) of the Evidence Act removed which afforded opportunity to the accused persons to prove that the victim was generally of immoral character. Even when it comes to Section 497 the law only conceived that only a male is capable of disturbing the sanctity of a marriage, not the female. For that reason, it did not contemplate punishing a female for enticing a married man. There is presumption as to absence of consent in certain rape cases (Section 114A of Evidence Act, 1872).

Woman is accorded with this special status by Indian law by virtue of her character. Where dating is accepted as culture character becomes irrelevant consideration and such countries would obviously not consider Adultery as an offence. But Indian Marriage is founded on the cornerstone of sexual fidelity. Among the customs and rituals, the important ones are Jaimala, Sindoor daan, wearing of Mangalsutra and the Seven vows taken by the bride and groom while taking Saat Pheras around the sacred fire. Both partners to Hindu marriage, take 7 vows before the Agni (Fire God) or Homam.

Among them in the second vow the Groom vows to bride that he will remain loyal and faithful to his wife and will stand by her throughout the thick and thins of life. He will be with her providing mental, physical and financial stability and security to her and family.

In the third vow the Bride vows to the groom that she will act responsibly in maintaining the resources and devote her love exceptionally to her husband and all other men would be secondary in her life. She will be loyal throughout life, maintaining chastity.

These vows made to each other during marriage are in the nature of a Contract and there is no reason why they should not be enforced in favor of a victimized spouse.

When terms of contract are violated there will definitely be a grievance. This grievance arises out of an offence because it is not loss to property but to the person and his/her feelings. If loss caused to property by cheating can be a criminal offence, the hurt and agony caused due to sexual infidelity which is a form of cheating can also be a criminal offence. Certain conduct and sexual morality on the part of spouse is implied in the very foundation of Indian marriage which find their expression through these rituals. It is from this conduct that a man or woman’s dignity is assessed in Indian society. That is why sexual fidelity is an essential ingredient of an Indian Marriage. Similarly there is nothing to suggest that sexual fidelity is not essential element in a Muslim, Christian or a Parsi Marriage.

Woman is accorded with the special status by Indian law because of this dignity and faith that society has in her conduct and character. If there is any situation where sexual infidelity can be equated with sexual autonomy in the name of progressive feminism then there is no reason why the law shall give this special status to woman.

It is nobody’s case in India, at least not the case of majority of population, to say that sexual infidelity ought to be protected in the garb of sexual autonomy and that it has nothing to do with a person’s dignity and that it shall be conceived as freedom of choice of partners rather than tagging such acts with offensive phraseology such as “infidelity”. No marriage in India is performed with the understanding tacit or express, that sexual autonomy outside marriage is part and parcel of marriage and the couple is constitutionally obliged to respect such autonomy. At least the author has not come across any such society so far having this kind of mores. For these reasons, this law cannot be made subject matter of International Jurisprudence.

Who is benefited by repeal of law of Adultery?
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 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 penalizing 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.- - D.Y. Chandrachud J.

With regard to the underlined sentences in the first paragraph, it is not correct to say that consent of husband or his connivance alone matters to help the cause of acquittal of the accused person (paramour). The wife in the first place should have consented for the sexual intercourse. If she does not consent it amounts to rape and she can file a complaint of rape against the paramour and if he is encouraged by husband by way of consent or connivance, the husband too can be proceeded against as an abettor. When an express provision is made by law by inserting expression “…such sexual intercourse not amounting to the offence of rape”…there is no reason why judgment should proceed on assumption that a woman cannot register her protest and she is compelled to remain helpless by law.

It is said in the second paragraph that, “The underlying basis of not penalizing 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.”

What research enabled the Hon’ble judge to arrive at this finding is not known. But in that sense the law is much more arbitrary in that it neither penalizes a married woman for her sexual act with a married man nor with a single man. A married man is at least penalized for his sexual acts with a married woman. Even a single man is punished for his sexual acts with a married woman. When it comes to women, neither a married woman is punished nor is a single woman punished for their sexual acts with married man or a single man.

And somehow law not penalizing them for sexual acts is not construed to be sexual autonomy accorded by impugned law of adultery to women. May be not penalizing them is not sufficient, to conform to Constitutional morality, it is imperative that law goes to the extent of protecting her paramour as well (from incarceration) to say that now she is enjoying sexual autonomy to the full extent.

The deviation with regard to test of reasonable classification cannot be set right by laying down that a wife too can proceed against paramour of her husband on like terms as husband can proceed against wife’s paramour. If it is done, then it violates the sexual autonomy, right to privacy as envisaged in Puttaswamy’s case.

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.- - .Indu Malhotra J.

The view taken by the Hon’ble judge above that 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 indicates that the Hon’ble Judge is in favor of enabling woman to prosecute her husband and his paramour. Otherwise Hon’ble judge would have said, “the husband’s ability to prosecute his wife’s paramour should be equated with wife’s inability to prosecute her husband and his paramour. The Hon’ble judge probably is of two minds on this matter. However, the Hon’ble Judge finally concluded in favour of the repeal of the Section, not amendment as suggested in Para 8.4 of her Judgment.

The verdict is not that by not at all punishing or prosecuting any woman (married or single) the law of adultery had countenanced their own concept of sexual autonomy. The verdict is that even the paramour must be free so that the choices made by women post-marriage can be fully respected and honored. It affects her dignity if paramour is proceeded against because it indirectly impinges on her character if paramour is proved guilty. So her sexual relationships outside marriage now have the similar status of privileged communications under Evidence Act and are protected in the garb of Right to Privacy.

And also, protecting paramour is construed as protecting the dignity of woman and respecting her freedom of choice. It is not the case that men are now given a license to interfere with marital relationships with impunity at par with women. It is not the case that gender equality is achieved by putting men on the same footing as women stood so far. It is not the case that the law of adultery accorded sexual autonomy to women (wife or single woman/married woman engaged in sexual relationship with a man in different marital relationship) by not prosecuting them (her) for any sexual acts with married man or single man and for that reason it is not able to stand the test of reasonable classification under Article 14 of Constitution because it is loaded more in favor of women. No one can prosecute a single woman’s lover if he is a married man. This fact is not accounted for in support of sexual autonomy of women. It is accounted for treating women as a chattel.

Where a single woman’s lover is not prosecuted and she herself is not prosecuted it is considered a deviation relating to test of reasonable classification rather than a justification for sexual autonomy, right to privacy guaranteed by Article 21 of the Constitution. One view was that it is not correct to let off a single woman enticing a married man into sexual relationship as echoed in Para 8.4 of Judgment of Indu Malhotra J.

Another view echoed was that husband in adultery must be prosecuted for that when it is alleged that women are treated like chattel and single woman is nobody’s chattel or property that is why a married man is not prosecuted. It is very heartening to note, that in mid 19th century, in a patriarchal society such as ours, a single woman is not a chattel of her father. This must go to the credit of law of adultery that a patriarch cannot proceed against married husband for having sexual intercourse with his daughter. It would almost be a death wish now to claim that a patriarch can be an aggrieved party.

Nevertheless a single woman can be accepted to be sexually autonomous woman in the eyes of law of adultery, because she is no male’s property. And her freedom of choice and sexual autonomy is associated with a married man’s offence to his wife. Question is – why should law penalize a married man if it is associated with the sexual autonomy of a woman which is protected by her Right to Privacy under Article 21 of Constitution. It is nobody’s case that only married woman can enjoy sexual autonomy not single woman. Where single woman is not penalized, it goes without saying, the person with whom she had sexual intercourse would also not be penalized because both are partners in sexual act.

Hence instead of saying that law of adultery treats women as chattel that is why adulterous husband is not penalized for having sexual relationship with single woman, it would be correct to say that law treats single woman as nobody’s chattel, and in view of her sexual autonomy (by virtue of not being anybody’s chattel)., her freedom of choice, her Right to privacy guaranteed under Article 21, the law of adultery protects the adulterous husband.

For reasons beyond comprehension, a married woman’s right to sexual autonomy under the garb of right to privacy guaranteed under Article 21 of Constitution do not stand in the way of civil litigation set in motion by her husband in a Divorce petition based on ground of Adultery.

That apart, now issues must be made simple.
The law of adultery as it stood on the day it was repealed was that neither the husband nor the wife can be prosecuted under Section 497. Hence the test of reasonable classification must be between wife and husband. As husband cannot proceed against wife, wife cannot proceed against husband. In so far as husband and wife are concerned there is perfect gender equality for woman. If any woman argues that husband must be prosecuted for adultery she should in principle agree that wife too should be prosecuted for adultery. As wife in adultery is not prosecuted, the husband in adultery is also not prosecuted by law of adultery. So, gender equality is perfect here.

Then where is gender discrimination alleged?
If a husband can proceed against wife’s paramour, a wife too should be in a position to proceed against her husband’s paramour. But law does not allow that. It does not allow that because it is obliged to protect the dignity, freedom of choice, sexual autonomy and right to privacy of single woman/married woman in adulterous relationship with her husband guaranteed by Article 21 of Constitution. In fact it does not stand the test of reasonable classification if law protects the dignity, freedom of choice, sexual autonomy and right to privacy of (only the) married women and not the dignity, freedom of choice, sexual autonomy and right to privacy of single woman.

It is nobody’s case that if a woman is not prosecuted under law of adultery, then no man must be prosecuted including the paramour of the woman. Because law of adultery is not judged on the anvil of gender discrimination against men in favor of women. Apparently no one is anxious about men. But the end result of the judgment was that by repealing law of adultery only one person is saved. That is – “a male paramour”.

And the message that goes to men who can possibly venture on devious path is – ‘try your luck…if anything goes wrong with them because of you…they will go to civil court for divorce’.