IN THE SUPREME COURT OF INDIA

SOWMITHRI VISHNU Versus UNION OF INDIA AND ANOTHER

... Petitioner

... Respondents

Writ Petition No. 845 of 1980

JUDGMENT: Law must be stable, yet it cannot stand still. -Roscoe Pound 1. This Writ Petition filed under Article 32 of the Constitution of India challenges the validity of Section 497 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) , which defines the offence of adultery and lays down the punishment for it. FACTS: 2. The facts leading to the filing of this Writ Petition are as follows:

The petitioner filed a petition for divorce against her husband on the ground of desertion. The trial court held that it was, in fact, the petitioner who had deserted her husband and hence, dismissed the petition.

Her husband then filed a petition on the grounds of desertion and adultery. He alleged that the petitioner was living in adultery with a person called Dharma Ebenezer.

In the course of the proceedings, the petitioner contended that a decree for divorce may be passed against her on the ground of desertion as established in the earlier proceeding. However, she argued that it was unnecessary for the Court to adjudicate

Under Article 32 of the Constitution of India

upon the question of adultery. The husband argued that he should be given an opportunity to prove that the petitioner was living in adultery. The court accepted his contention, but in a revision petition filed by the petitioner, the High Court held that as the decree of divorce was to be passed in favour of the husband on the ground of desertion, it was not necessary for the Court to go into the question of adultery.

During the pendency of the husbands petition for divorce, he filed a complaint against Dharma Ebenezer under Section 497 of the IPC charging him with the commission of the offence of adultery with the petitioner.

This writ petition implores this Court to quash the complaint on the ground that Section 497 is unconstitutional.
SECTION 497: 3. Section 497 falls within Chapter XX of the IPC which is titled Of Offences Relating to

Marriage. It reads as follows: Whoever has sexual intercourse with a person who is and whom he knows to be a 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. 4. Section 498 read with Section 198 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), lays down that no person other than the husband of the woman can be considered to be aggrieved by the offence of adultery. The Court cannot take cognizance of the offence except upon a complaint filed by the person aggrieved. 5. The petitioner argues that Section 497 is violative of Article 14 as it makes an unreasonable classification between men and women. This contention is based on three grounds:

(1) Section 497 confers upon the husband the right to prosecute the adulterer. However, the wife does not have a right to prosecute the woman with whom her husband has committed adultery. (2) The Section does not confer a right upon the woman to prosecute the promiscuous husband. (3) The Section does not cover the cases where the husband has sexual relations with an unmarried woman.
LEGISLATIVE INTENT AND PRESENT DAY SITUATION: 6. In order to understand the reasoning behind the framing of this provision, we must consider

the legislative intent behind the same. It is pertinent to note that Lord Macaulay did not want to put adultery in his First Draft of the Penal Code: "It seems to us that no advantage is to be expected from providing a punishment for adultery. The population seems to be divided into two classes - those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honour are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances, we think it best to treat adultery merely as a civil injury."1 However, the Second Report on the Draft Penal Code took a different view. It was decided to include adultery as an offence, but punish only the male offender. The reason for the same was cited as follows: Though we well know that the dearest interests of the human race are closely connected with chastity of women and the sacredness of nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives.
1

Macaulay's Draft Penal Code (1837), Notes, Note Q, pp. 90-93, as cited in (2001) SCC 6 Jour 16

The condition of women in this country is unhappily very different from that of the women of England and France; they are married while still children; they are often neglected for other wives still young. They share the attentions of a husband with several rivals. To make laws for punishing inconstancy of the wife, while the law admits the privilege of the husband to fill his zenana with women is a course we are most reluctant to adopt. We are not so visionary as to think of attacking, by law, an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain, operation of education and of time. But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale, already too much depressed, the additional weight of the penal law.2 7. The above extracts prove that the drafters decided to keep women outside the purview of punishment so as to not burden them with criminal liability over and above the existing problems. It must be kept in mind that the IPC was drafted in the 19th century. The times are changing, and the law must change with it. Though the evils of child marriage and polygamy still persist in many parts of our country, there has been a considerable reduction in the number of such cases. Except Mohammadans, no community can practise polygamy. It is punishable under Section 494 of the IPC. Similarly, the Child Marriage Restraint Act, 1929 and the Prohibition of Child Marriage Act, 2006 declare marriages between minors voidable. 8. Women today, though still the oppressed class, are as much capable of being the perpetrators of the crime of adultery as they are of being the victims of it. Hence, the intention of the drafters in keeping the woman out of the purview of the punishment does not hold good any more.
9. If the legislators considered adultery to be an offence against marriage, it is but obvious

that they intended to protect the sanctity of marriage by making it punishable. However, for that purpose to be served, either spouse who indulges in an act which violates the sanctity of the matrimonial tie must be subject to equal liability. This positive discrimination in favour of the woman does not benefit either spouse.
2

Macaulay's Draft Penal Code (1837), Notes, Note Q, p.175, as cited in K.D. Gaur, A Textbook on the Indian Penal Code, 4th Ed. (2009), Universal Law Publishing Co., New Delhi, p. 800-801

10. The law also gives a free licence to the husband to share a sexual relationship with unmarried women, as that doesnt fall within the purview of the definition of the term adultery. It is an offence only if a married man has an illicit relationship with a married woman, that too, without the consent or connivance of her husband. Thus, where the womans husband permits another man to have sexual intercourse with his wife, it shall not be considered to be adultery. The woman has absolutely no say in it. The woman is considered to be her husbands property, and when another man has sexual relationship with the woman without her husbands consent, it amounts to trespass to his property. This provision is a disgrace to womanhood. It is now time for these notions to change. The woman must get her due respect. 11. It may be noted that Clause 199 of the Indian Penal Code Amendment Bill, 1978 intended to rewrite Section 497 as follows: Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape, commits 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.3 However, even in this case, it is only the man who is punishable. It is necessary that the provision be made gender neutral wherein the errant man and woman shall both be punishable in equal measure. 12. With regard to the petitioners contention that the woman must have a right to be heard, where the outcome of a trial will affect her reputation, the provisions with regard to adultery in the IPC and CrPC require major modifications. It must be amended to make both the man and the woman punishable. It must also confer the right to prosecute the promiscuous spouse upon both, the husband and the wife. 13. Hence, this Court, for reasons discussed hereinbefore, declares Section 497 of the Indian Penal Code unconstitutional as it is violative of Article 14 of the Constitution of India. As a consequence of the same, the complaint against Mr. Dharma Ebenezer is hereby quashed.
3

As quoted in the 156th Law Commission Report, 1997, Volume I, p. 171

-------------------Submission for the Alternative Judgment Writing Competition by: Aparna Appaiah, IV B.S.L., LL.B.