ADULTERY

The early nineteenth century essayist Sydney Smith said: ‘When I hear any man talk about
unalterable law, I am convinced that he is an unalterable fool’, indicating that laws ought to
be changed according to ever-changing societal needs. The case of Joseph Shine v. Union of
India is one such case where the archaic law of penalising Adultery was decriminalised
guaranteeing the essential status of dignity, autonomy and privacy as a cornerstone for a
equal society to the women. The judgment in decriminalising Section 397, took into
consideration whether the punishment for adultery violates Article 21; whether there is a
manifest arbitrariness in the Section; whether the legislation in protecting the sanctity of
marriage encroached upon the dignity of women and whether the law violates Article 15(1)
by enforcing gender stereotypes. The law of Adultery in the country stated that a man having
sexual relation with a married woman without her husband’s consent would be penalised for
imprisonment upto 7 years. This law had given the power to the husband to imprison the
‘adulterer’ in the name of protecting the institution of marriage. However, scanned being
Argus eyed, the husband claims nothing but proprietary rights over his wife whose consent
for the sexual relations didn’t even hold an essential value. The history of this 158 year old
law reveals that it was made for the benefit of the husband demanding his wife’s controlled
sexuality. Thus, women were treated merely as chattel and adultery was treated as an offence
to the husband in terms of ‘theft’ of his living property.

Since time immemorial, marriage has been burdened under the doctrine of covertures which
follows a biblical morality that man and woman are one flesh and blood after marriage.
However, this has been interpreted distinctively different as husband being the dominant
character in the marriage institution and the wife resonating his demands. A ‘feme sole’
transforming into ‘feme covert’ after marriage is nothing to be surprised of. Even the section
of adultery did not punish a man who had sexual relations with a woman of whose husband
had given connivance of. It has been long forgotten that marriage is regarded as a partnership
of equals and wife have to no longer be treated as a subservient of equals. 1 Deepak Mishra, J.
in his recent judgement concurred that women have to be treated as equal partners in the life
of men and have to be borne in mind that they have equal role in the society, that is, thinking,
participation and leadership, 2 and the crime of Adultery as stated in our penal code certainly
violates various rights of women which are the facets of the Preamble of the Constitution.

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R and R lord keith
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Commanding loyalty in a marriage is a socio-moral thing and a husband and only he, having
the right to penalise a man for consensual relations with his wife deeply hinders her sexual
autonomy which is the facet of individual liberty and right to privacy under Article 21. Not
that no legal course could be taken against this breach of trust. Adultery could be a ground for
divorce but putting the man behind the bars and not his wife for the same action is woman
being likened to mere chattel and infringing her right to dignity.

In the Puttuswamy case3, conditions on which the State can invade a person’s privacy were
postulated being; it should portray the State’s interest and should showcase the
proportionality between the object and means adopted by the law. In the Joseph Shine case,
Indu Malhotra, J; clearly pointed out that object for enforcing the law in the first place was to
have control over wife’s sexuality and not be suffered in the hands of the men who had
enmity with her husband. However, as years have passed it has now been retained as special
provision for the women as the notion that women are the ‘victims’ of adultery and therefore
need a beneficial exemption in accordance with Article 15(3) of the Constitution from
Section 497.4However, what kind of protective discrimination of Article 15(3) would
possibly save one woman from injustice while letting the other suffer from it. The Section
empowers the husband to penalise only the adulterer even though his wife might be the
abettor. Moreover, since the crime gets exempted by the connivance of the husband
irrespective of the fact that the adulterer’s wife had even the knowledge of the affair, leave
alone bestowing the power to penalise the wife for the same; it cites as an revolting example
for nothing but a benevolent patriarchy. Thus, it is demonstrable that women are treated
nothing but subordinate to the men which is excessive and disproportionate.

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The CJI, writing the main judgment for himself and Justice Kanwilkar, said: “Any provision
of law affecting individual dignity and equality of women invites the wrath of the
Constitution. It is manifestly arbitrary and it is time to say that a husband is not the master of
his wife. Legal sovereignty of one sex over the other sex is wrong.” Section 497, he
concluded, is “manifestly arbitrary”. This leads to manifest arbitrariness and is liable to be
struck down.5