The Hindu Editorial Analysis- 13th March 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Why in News?

More than four years ago, the Supreme Court of India decriminalised adultery in its landmark judgment, Joseph Shine versus Union of India (September 2018). It held Section 497 of the Indian Penal Code (on adultery) along with Section 198 of the Criminal Procedure Code to be unconstitutional on the premise that these provisions were violative of Articles 14, 15 and 21 of the Constitution of India.

What is the ruling on?

• Under Section 497 of the IPC, a man had the right to initiate criminal proceedings against his wife’s lover.

• Under Section 198(2) of the CrPC, the husband alone could complain against adultery.
• The court has now struck down both these provisions and has decriminalised adultery.
• Nevertheless, adultery will continue as a ground of divorce and, therefore, remain in civil law.

How did Section 497 evolve?

• The First Law Commission of 1837, under Lord Macaulay, had not included adultery as a crime in the original IPC. It was only a civil wrong.
• The Second Law Commission in 1860, headed by Sir John Romilly, made adultery a crime but spared women from punishment.
• This was due to the conditions in which they lived - child marriage, age gap between spouses, and polygamy.
• The drafters of the IPC looked at this as being sympathetic to women, and also viewed men as the real perpetrators.
• In 1954, the Supreme Court too treated Section 497 as a special provision made in favour of women.
• This was made valid in exercise of the state’s powers under Article 15(3) of the Constitution.
• In 1988, the court upheld Section 497 by saying only an “outsider” is liable and not the woman.
• This exemption is basically a “reverse discrimination in favour of women”.

What is the Court's rationale in decriminalising?

• Anomalies in law - An adulterous relationship did not constitute an offence if a married woman had her husband’s consent.
• A wife could not prosecute her husband or his lover for violating the "sanctity of the matrimonial home".
• Only a husband could prosecute the man with whom his wife had a sexual relationship.
• Moreover, if the husband had an affair with an unmarried woman, divorcee or widow, it was not an offence of adultery.
• Rights - The ability to make choices is a fundamental facet of human liberty and dignity.
• Autonomy in matters of sexuality is intrinsic to a dignified human existence.
• But Section 497 restricts women of the ability to make these fundamental choices.
• It is also violative of Article 14 (equality) and Article 15 as it discriminated on grounds of sex and punishes just men.
• Attitude - The “ancient notions” of the man being the seducer and woman being the victim is no longer the case today.
• The court observed that the husband is neither master of his wife, nor does he have legal sovereignty over her.
• The archaic Section 497 of the IPC is thus arbitrary -
  • in punishing only men for adultery
  • in treating a woman as her husband’s property
• Besides these, the court also took note of global decriminalisation of adultery.

What is the significance?

• The Court did not equalise the right to file a criminal complaint, by allowing a woman to act against her husband’s lover.
• It instead preferred putting an end to the Victorian-era morality itself.
• It is thus a significant step towards rights-based social relations, instead of a state-imposed moral order.
• Taking forward the judicial precedents, the law makers should now play a proactive role in amending such regressive laws.