Shikhar Gupta
In September, 2018, a five-judge bench of the Supreme Court of India (“Supreme Court“) struck down another colonial law, Section 497 of the Indian Penal Code (“IPC”) that prescribed a maximum imprisonment of five years to men for adultery.
Unlike India’s other sexual assault laws, which are linked with consent of the woman, the 158-year-old adultery law did not consider the woman’s will. Though women couldn’t be punished under the provision, a husband could prosecute the man who had any kind of sexual relations with his wife, even if the wife was a voluntary participant in the act.
Joseph Shine, a 41-year-old Indian person living in Italy, petitioned the Supreme Court to strike down the law. His argument was that it discriminated against men by only holding them liable for extra-marital relationships, while treating women like objects. All five Supreme Court judges hearing the case said the law was archaic, arbitrary and unconstitutional. The Court however clarified that adultery will be a ground for divorce.
Dipak Misra, the then CJI said that “It’s time to say that husband is not the master of wife. Women should be treated with equality along with men“. Justice Nariman who wrote a separate judgment to concur with the judgments of Justice Misra and Justice Khanwilkar, stated that 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“, observed Justice Nariman. Justice Chandrachud in his separate but concurring opinion said that Section 497 was destructive to woman’s dignity and also emphasized that “Respect for sexual autonomy must be emphasized“. “Section 497 perpetrates subordinate nature of woman in a marriage“, were his concluding remarks. Justice Indu Malhotra noted in her judgement that the Section institutionalized discrimination.
This was the second colonial-era law struck down by the Supreme Court after it struck down the 157-year-old law which criminalized sexual relations between homosexuals under section 377 of the Indian Penal Code. This shows that the approach of the apex court of the country is towards equality and personal liberty for all genders. The judgment however was applauded by the majority of Indians, some criticized it on the ground that it shall severely harm the institution of marriage. The arguments of the opposing side is that by this judgment the Supreme Court is actually promoting people to go and have sexual relationships outside their marriages which shall destroy the institution of marriage which is a crucial pillar of Indian culture. However, Chandrachud J. in his judgment has expressly addressed this concern and said that a balanced approach towards personal liberty and the importance of institution of marriage has been taken. And while it is important to save the institution of marriage, it is equally important to protect the personal liberty of the citizens.
