- Nupur Raut*
Recently, in Joseph Shine v. Union of India, a Constitution Bench of the Supreme Court reserved its judgment on a constitutional challenge to Section 497 of the Indian Penal Code, as well as Section 198(2) of the Code of Criminal Procedure. The petitioner in the case challenged the impugned provisions on two main grounds – the lack of gender equality, and the infringement of the right to privacy. A three-judge Bench of the Court issued notice and referred the matter to the Constitution Bench for consideration in light of precedent by another Constitution Bench. The matter raises important questions on the status of women in the impugned provisions.
Thus far, the discussion on the provisions has proceeded in a fashion that I consider exclusive of their gender implications for women. As a result, the law on adultery as laid down by the Supreme Court itself, has resulted in adverse implications for the status of women. First, the provisions remain and deny them agency. Secondly, the gendered comments of the Court perpetuate societal stereotypes that, if taken as precedent, will disadvantage women in future litigation. The gender-neutrality aspect of the issue is, in most legal discussions, centred around the unfairness of the woman being exempt from prosecution, which is but one facet of the inequality at issue. It is the most obvious reason to delete the provision from a men’s rights perspective. I therefore proceed to critique the debate from a feminist perspective with a focus on asking the woman questionof the provisions as well as of Supreme Court decisions upholding them. I limit this piece to an analysis of inequality between men and women (addressed as “gender inequality”, as the law today does not recognize non-heterosexual relationships) in the impugned provisions and judicial decisions.
Prior recommendations for reform and judicial challenges
There have been attempts to do away with the provisions in their current form, which have been on the statute book from 1860. They read as follows,
“497. 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.”
“198. Prosecution for offences against marriage.—(1) * * *
(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
The provisions are considered to further inequality as they do not allow women to prosecute their adulterous husbands, and also exempt women from prosecution for the offence. Moreover, if there is consent or connivance of the husband of a woman committing adultery with a man, the offence is not made out. The Law Commission in 1971 recommended that Section 497 be retained, but with a modification to make the adulterous wife liable for adultery. In 1997, it recommended that Section 497 be made gender neutral and Section 198(2) be suitably amended, but kept the consent requirement as well as the five-year imprisonment period intact. The Justice Malimath Committee in 2003 recommended that Section 497 be made gender-neutral, by substituting the words of the provision with“ whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.”The National Commission for Women in 2006 recommended no changes to Section 497 due to the “relatively socially unempowered position of women,” perhaps because enabling the prosecution of women could oppress them and further weaken their socio-economic status in society. Instead, it advised that Section 198(2) be amended to allow the wife of the adulterer to prosecute. None of these recommendations were accepted.
There are three cases where the provisions impugned herein were challenged before the Supreme Court: Yusuf Abdul Aziz v. State of Bombay, Sowmithri Vishnu v. Union of India,and V. Revathi v. Union of India. The Court affirmed the constitutional validity of these provisions by either upholding the position of women as chattel, or by skirting the gender implications of the provisions entirely.
In Yusuf, where the challenge to Section 497 was presented under Articles 14 and 15, a seven-judge Bench of the Court practised greatly benevolent patriarchy by upholding the Section as a “special provision” for women under Article 15(3). That women are denied agency by the Section was construed to be in their benefit. In my opinion, Article 15(3), which enables the State to take affirmative action for women and children, cannot be stretched so far as to cover the impugned Sections. Exempting women from being prosecuted or being considered as aggrieved persons, while also making the offence conditional upon their husband’s lack of consent, is far from affirmative action. The weak socio-economic status of women does not mean that it is ‘affirmative action’ for them to continue to be treated as spoiled chattel in an adulterous relationship. The provisions are not meant to uplift the status of women, and are certainly not serving that purpose when they continue to treat women as property.
In Sowmithri, Section 497 was challenged (and Section 198(2) was discussed) under Articles 14, 15, and 21. It was argued that women were treated unequally by not being allowed to prosecute their husbands or their husbands’ paramours, not having any recourse if the paramour was an unmarried woman, and suffering damage to their reputation in collusive suits between men. The three-judge Bench of the Court, however, circled back to the provision to prove its conformity with Articles 14 and 15. Its reasoning to retain the provisions was: if women cannot be punished as abettors, why should they be given the right to prosecute? It declined to strike Section 497 down merely because it is “desirable” to do so. Thereafter, it promoted negative gender stereotypes, and denied women agency, by declaring, “…it is the man who is the seducer and not the woman.”It acknowledged that this position may have changed over the years “in the light of the alleged social transformation in the behavioural pattern of women in matters of sex”, but left it to the Legislature to amend Section 497 in accordance with the changing times. It opined that a limited class of adulterous relationships, at least, ought to be prosecuted to preserve the sanctity of marriage. It also dismissed the Article 21 challenge by holding that a woman trapped in a collusive adultery case always has the option of being heard before the Court, even if the provisions do not make her a necessary party. The Court, in trying to retain the provision, washed its hands of the issue and perpetuated the norm that women are the givers of sex.
Revathi, in a completely new line of reasoning, refused to accept that the provision promotes any kind of inequality. In an Article 14 challenge to the provisions, a two-judge Bench of the Court sought to root the rationale of the provisions in the ‘sanctity’ of the family. According to the Court, the provisions ensure that the spouses cannot prosecute each other. The “social good” would be promoted if they are left alone to make up and break up (one wonders why this cannot be a rationale for deleting the provision entirely and leaving the couples to take adultery as a ground in proceedings before a civil court), and only the outsider can be prosecuted. The Court acknowledged that the outsider cannot be prosecuted if she is a woman, but left it at “reverse discrimination” in favour of the woman. It also observed that the scheme of the provisions is also in the best interests of the children caught in the crossfire, so that their parents are not sent to jail at each other’s instance. It refused to acknowledge the obvious gender bias in the provisions, or act upon the treatment of women as victims/chattel.
It is apparent, then, that neither attempts at reforming the law nor judicial decisions on adultery have done much to further the cause of gender equality. In fact, they have resulted in further oppression. First, the provisions remain, and women are still considered incapable of committing adultery or being aggrieved by it. Secondly, there is an inherent danger of women being further disadvantaged in future litigations because of the gender insensitive comments of the Court which perpetuate societal stereotypes. The reserved judgment has a lot of potential to change how women are viewed by the law.
The present challenge: the PIL and the proceedings
As noted earlier, the PIL filed before the Court made a case for reading down the provisions by citing (ostensibly) the lack of gender equality, as well as the infringement of the right to privacy. Despite using gender inequality in the provisions as a ground to strike them down, the PIL does nothing for gender equality. It sullenly demands that the impugned provisions be declared unconstitutional for “directly” discriminating against men. This ‘direct’ discrimination is the manner in which an adulterous wife is immune from prosecution, while an adulterous husband is liable to be prosecuted for the same act. According to the petitioner, men and women “are on an equal footing” and should be treated accordingly in context of being liable for adultery. However, it is hardly the case that men and women are treated as equals in society. The petition’s take on gender equality is almost entirely devoid of a woman’s perspective, except when some of the grounds claim (as an afterthought) that the impugned provisions “indirectly” discriminate against women for treating them like chattel. In the PIL, the inability of a woman to prosecute for adultery comes second to the petitioner’s claim that the husband is disadvantaged by not being able to prosecute for adultery. This is not true gender equality; it is nothing but using the inferior status accorded to women in the law as a tool to make the law less stringent for men.
In court, it was argued by those on the side of the petitioner that the provisions were biased against women. The most obvious feminist critique of these provisions was pushed forward: that by treating women like victims and chattel, they are subject to a challenge under Articles 14 and 15 for manifest arbitrariness. These arguments on women’s agency can go a long way in promoting the enforcement of Part III rights qua women not just in this case, but in future constitutional challenges. If accepted, they can set precedent for challenges to other outdated, sexist, and regressive laws. Additionally, the right to privacy under Article 21 was put forth as an important argument for rendering the impugned provisions anachronistic. Various foreign judgments were cited to highlight the importance of privacy and bodily autonomy. It was contended that marriage is a contract between two parties, and sexual autonomy is an integral part of the right to privacy. There is no longer any justification for the State to expend its resources on the private lives of people. Given the recent judgment in K.S.Puttaswamy v. Union of India, and the debate on privacy in the country, this argument is likely to be considered at length.
The Union premised its arguments on the distinct nature of Indian society. It exhorted the Bench to decide independently of foreign decisions, as the Indian context is different. An adulterous relationship, according to the Union, destroys the sanctity of a marriage and affects families and society. Keeping the amorphous concept of ‘marriage sanctity’ aside, this argument does not and should not justify the denial of agency to women as independent actors before the law. It is also evident that the provisions were not intended to preserve the ‘sanctity’ of marriage in the first place: the impugned provisions, even if they were gender-neutral, do not cover cases where a spouse has sex with an unmarried person. They do nothing to preserve the ‘sanctity’ of a marriage and were never meant to. There is effectively no reason left to keep them on the statute book.
The expected verdict: furthering the feminist cause, or not at all?
I am in agreement with the feminist critique made in court, as it asks the woman question of the provisions. The fact that the offence is made out only when there is no consent or connivance of the husband of the adulterous wife very clearly subjugates her to his authority. A woman cannot be prosecuted for the offence, evidently because she is considered incapable of it by virtue of her status as chattel. Not only does Section 497 fall in the teeth of Articles 14 and 15 by arbitrarily placing men and women on an unequal (and discriminatory) footing, it also infringes upon Article 21 by denying women sexual autonomy. Section 198(2) metes out similar treatment to women in not giving them the status of aggrieved persons before the law. Moreover, making the provisions gender-neutral will not preserve any ‘marriage sanctity’, or obviate the issue of privacy infringement of private relationships under Article 21. A very strong case has been made by the petitioner’s side. Concluding the woman question analysis, I believe that the problem created by the provisions and the judgments upholding them can only be resolved by deleting the provisions for being unconstitutional.
The remarks of the Court on the issue have consistently been in support of women’s equality; there is a good chance of a positive verdict based on gender equality. The Court may also accept the Article 21 challenge, given the strong emphasis on the right to privacy in Puttaswamy. It is concerning, however, that the law may be read down for the wrong reasons. If the Court accepts the gender equality argument, it can do so on the following counts: the alleged unfairness to men in being the only persons liable, the unfairness in denying women agency, or both. If the unfairness to men is prioritized, or even acknowledged as an independent and equally important reason for reading the provision down, the judgment will pay short shrift to the feminist cause. The unfairness to men in being the sole parties liable is but the other side of the real issue: in making men liable for the offence of adultery, the law does not consider women as independent enough to be capable of committing the offence or objecting to it. If the judgment puts men’s issues at par with the unequal treatment of women, its gender implications will be to the detriment of women. Treating men as parties equally (or more) aggrieved by a provision that treats women as property in a marriage is a step forward for patriarchy: once the interests of women are made to look like, include, and thereby subordinate themselves to those of men yet another time, is it really equality?
It may also be that the Court does strike the provisions down, but not because they go against Articles 14 and 15. The Article 21 challenge stands independent of the gender equality issue, and could constitute a sufficient ground by itself to strike the impugned provisions down. If a positive verdict is given only because of the infringement of Article 21, the provisions will be struck down, and the ends of the feminist cause will seemingly be achieved. However, this result will only be an illusory victory. The true end of the feminist cause lies in obtaining an acknowledgement from the Court that the oppression of women is the main cause of the unconstitutionality of the provisions. A judgment by a Constitution Bench denouncing the treatment of women in the law will shape judicial commentary on the rights of women for years to come. If the Court does not find the women’s equality argument persuasive, it will deprive feminist jurisprudence of a much-needed (and long-awaited) comment on women’s rights in marriage.
Alternatively, the Court may find the ‘marriage sanctity’ argument of the Union more compelling than both gender equality and privacy, and dismiss all the constitutional challenges to the provisions. While this does not seem likely,I hope that the Court will not pass up its chance to denounce the unequal status accorded to women for hundreds of years. Adultery should most certainly not remain a crime, but the primary rationale for deleting it from the statute-book should be its perpetuation of inequality by denying women agency.
The debate on the law of adultery in India has proceeded in two fixed, unmoving directions: while the Court justifies the provisions by implying that women are not fit to be given agency, men’s rights activists (vengefully) demand that the provision be reassessed to remove the woman’s immunity from prosecution. Both are excessively patriarchal ways of looking at the situation. The reserved judgment has the option of departing from these lines of argumentation and focusing on the main issue: the disempowerment of women in criminal law.
It must be kept in mind that the deletion of these provisions does not mean that there are no legal consequences for engaging in adultery. These consequences need not be criminal, and a remedy may be found in civil law, where adultery already has a place. It is a ground for divorce in personal laws. Such an approach is also in conformity with the right to privacy and does not require the State to expend its resources. Cruelty as under Section 498A, along with the definition of domestic violence under the Domestic Violence Act, 2005can cover the mental trauma caused to a woman by a husband’s adulterous relationship.
There is a good chance that the provisions may be read down. One can only hope that they are declared unconstitutional for the right reasons, namely their denial of agency to women and their infringement of the right to privacy. This decision has the potential to be a forerunner in feminist (nay, “gender” equality) jurisprudence, but only if it remembers to ask the woman question at every stage.
*Nupur Raut is an LL.M. Candidate at Cambridge University.
Writ Petition (Crl.) No. 194 of 2017.
The woman question involves asking how the law affects women, or how it fails to take their experiences into account, and suggesting a solution to the problem; see Katharine T. Bartlett, Feminist Legal Methods, 103(4) Harvard Law Review (1990).
Law Commission of India, Indian Penal Code (42nd Report, 1971).
Law Commission of India, Indian Penal Code, Vol. I (156th Report, 1997).
Committee on Reforms of Criminal Justice System, Report, Vol I, 190 (2003).
NCW rejects proposal to punish women for adultery, The Hindu (Dec. 26, 2006), https://www.thehindu.com/todays-paper/tp-national/NCW-rejects-proposal-to-punish-women-for-adultery/article15735459.ece.
 AIR 1954 SC 321.
 1985 SCC (Cri) 325.
 (1988) 2 SCC 72.
Joseph Shine v. Union of India, Writ Petition (Crl.) No. 194 of 2017.
 The judges seemed to concur: “Sustinence [sic] of a relationship is based on the parties, their willingness to adjust; State should not come into it, remarks CJI Dipak Misra.” Bar and Bench (barandbench), https://twitter.com/barandbench/status/1027123272666763264.
 (2017) 10 SCC 1.
 When referring the matter to a larger Bench, the Court remarked, “As indicated in our earlier order, we had noted that the provision seems quite archaic and especially, when there is a [sic] societal progress…”; see Joseph Shine v. Union of India, (2018) 2 SCC 189;See also Bar and Bench (barandbench),“#Adultery: The provision extracts fidelity from woman which it does not extract from man, DY Chandrachud J. remarks.”https://twitter.com/barandbench/status/1027091840175099904; See also Bar and Bench (barandbench),“#Adultery: On arbitrariness test, the fact that husband's connivance will not make it a crime is manifestly arbitrary, Rohinton Nariman J.” https://twitter.com/barandbench/status/1024908296342458369.
It is highly unlikely that gender inequality will not be a ground, given that the judges themselves remarked that the provisions are manifestly arbitrary for perpetuating gender inequality. The Court has also declined to pass the buck to the Legislature by remarking that it will not look into making the law gender neutral to punish both men and women. The Legislature had opportunities to do so, but did not; see Dhananjay Mahapatra, SC rejects govt’s plea to make adultery law gender neutral, The Times of India (August 09, 2018), https://timesofindia.indiatimes.com/india/sc-rejects-govts-plea-to-make-adultery-law-gender-neutral/articleshow/65330164.cms.
The criminalization of adultery is not only harshly criticized in India, but has also been done away with in many other countries; see Statement by the United Nations Working Group on discrimination against women in law and in practice, https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E.
 Section 3, Domestic Violence Act, 2005.