The Supreme Court of India has ruled that adultery is no longer a crime, declaring the colonial-era law unconstitutional and discriminatory against women. A five-judge Court ruled unanimously that the criminal offence of having a sexual relationship with a woman without her husband’s consent was archaic, based on gender stereotypes and a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy. The judgment comes hard on the heels of the Court’s decriminalisation of same-sex relationships.
Article 15 of the Constitution of India states that “The State shall not discriminate against any citizen on grounds only of … sex.” Sections 497 and 498 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC) criminalise adultery and enticement:
“Section 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.
Section 498: Enticing or taking away or detaining with criminal intent a married woman
Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
Under Section 497 CrPC, the offence of adultery can only be committed by a man but, in the absence of any provision to the contrary, the woman would be punishable as an abettor.
In Joseph Shine v Union of India Writ Petition (Criminal) No. 194 of 2017, the appellant argued that the criminalisation of adultery violated the Constitution. The Supreme Court agreed:
“66. This Court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right. Section 497 denudes a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality:
‘Infidelity was born on the day that natural flows of sexual desire were bound into the legal and formal permanence of marriage; in the process of ensuring male control over progeny and property, women were chained within the fetters of fidelity.’
Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.
67. Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster.
We hold and declare that:
1) Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the Constitution;
2) Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution;
3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution; and
4) Section 497 is unconstitutional” (per Dipak Misra CJI).