The decision of the Supreme Court on Friday to re-examine the offence of adultery is prima facie an admission that the court has consistently gone wrong in denying that the colonial penal provision is actually “male chauvinism” disguised as a beneficial legislation for women.
In its 1985 judgment, the Supreme Court’s three-judge Bench records the submissions made on behalf of Sowmithri Vishnu, whose husband wanted divorce for desertion and adultery. Senior advocate Nalini Chidambaram, for Ms. Vishnu, had called Section 497 (adultery) of the Indian Penal Code a “flagrant instance of gender discrimination, legislative despotism and male chauvinism.”
Prosecuting a husband
Ms. Chidambaram described Section 497 as a kind of “romantic paternalism,” which stemmed from the assumption that women, like chattels, are the property of men.
She argued that while Section 497 gave husbands the exclusive right as an aggrieved party to prosecute the adulterer in a case involving his wife, a similar right has not been conferred on a wife to prosecute the woman with whom her husband has committed adultery.
Secondly, the provision does not confer any right on the wife to prosecute her husband for adultery. The law also does not take into account cases where the husband has sexual relations with an unmarried woman. Thus, the provision deems that “husbands have a free licence under the law to have extra-marital relationships with unmarried women.”
Yusuf Abdul Aziz case
However, the three-judge Bench led by the then Chief Justice of India Y.V. Chandrachud dismissed these arguments as having only a “strong emotive appeal.” The judgment said a wife could always initiate civil action against her unfaithful husband. The court agreed that “a man seducing the wife of another” was the most seen and felt evil in society.
The Vishnu verdict draws its strength from a five-judge Constitution Bench verdict in the Yusuf Abdul Aziz case of 1954.
Answering the question why a wife cannot be prosecuted as an abettor to adultery, Justice Vivian Bose, speaking for the Bench, said the protection from prosecution given to women under Section 497 is in tune with Article 15 (3) of the Constitution. Article 15 (3) allows the legislature to make “special provisions” which are “beneficial” for women and children.
In 1988, a two-judge Bench, in V. Revathi versus Union of India, denied gender discrimination in the fact that only the adulterer-man is punished and not the wife who consensually entered into the adulterous relationship.
“The community punishes the “outsider” who breaks into the matrimonial home and violates the sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses. The erring man alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither can the husband prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail,” Justice M.P. Thakkar wrote.
Change in SC’s views
A re-visit signals a paradigm shift in the way the apex court views the modern Indian women.
“The time has come for the society to realise that a woman is equal to her husband in every respect,” Chief Justice Dipak Misra observed.
