REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO 194 OF 2017

JOSEPH SHINE ...Petitioner

VERSUS

UNION OF INDIA ...Respondent

JUDGMENT

Index

A Gender: the discursive struggle

B Judicial discourse on adultery

C Relics of the past

D Across frontiers

E Confronting patriarchy

F ‘The Good Wife’

F.1 The entrapping cage

G Denuding identity - women as sexual property

G.1 Exacting fidelity: the intimacies of marriage

H Towards transformative justice

1
 PART A

Dr Dhananjaya Y Chandrachud, J

A Gender: the discursive struggle

1 Our Constitution is a repository of rights, a celebration of myriad freedoms

and liberties. It envisages the creation of a society where the ideals of equality,

dignity and freedom triumph over entrenched prejudices and injustices. The

creation of a just, egalitarian society is a process. It often involves the

questioning and obliteration of parochial social mores which are antithetical to

constitutional morality. The case at hand enjoins this constitutional court to make

an enquiry into the insidious permeation of patriarchal values into the legal order

and its role in perpetuating gender injustices.

2 Law and society are intrinsically connected and oppressive social values

often find expression in legal structures. The law influences society as well but

societal values are slow to adapt to leads shown by the law. The law on adultery

cannot be construed in isolation. To fully comprehend its nature and impact,

every legislative provision must be understood as a ‘discourse’ about social

structuring.1 However, the discourse of law is not homogenous.2 In the context

particularly of Section 497, it regards individuals as ‘gendered citizens’.3 In doing

so, the law creates and ascribes gender roles based on existing societal

1
Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications
(1996) at page 40
2 Ibid at page 41
3 Ibid

2
 PART A

stereotypes. An understanding of law as a ‘discourse’ would lead to the

recognition of the role of law in creating ‘gendered identities’.4

3 Over the years, legal reform has had a significant role in altering the

position of women in societal orderings. This is seen in matters concerning

inheritance and in the protection against domestic violence. However, in some

cases, the law operates to perpetuate an unequal world for women. Thus,

depending on the manner in which it is used, law can act as an agent of social

change as well as social stagnation. Scholar Patricia Williams, who has done

considerable work on the critical race theory, is sanguine about the possibility of

law engendering progressive social transformation:

“It is my deep belief that theoretical legal understanding and

social transformation need not be oxymoronic”5

The Constitution, both in text and interpretation, has played a significant role in

the evolution of law from being an instrument of oppression to becoming one of

liberation. Used in a liberal perspective, the law can enhance democratic values.

As an instrument which preserves the status quo on the other hand, the law

preserves stereotypes and legitimises unequal relationships based on pre-

existing societal discrimination. Constantly evolving, law operates as an

important “site for discursive struggle”, where ideals compete and new visions

are shaped.6. In regarding law as a “site of discursive struggle”, it becomes

4
Ibid
5 Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard University Press (1991)
6 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications

(1996) at page 41

3
 PART A

imperative to examine the institutions and structures within which legal discourse

operates:7

“The idea of neutral dialogue is an idea which denies history,

denies structure, denies the positioning of subjects.”8

In adjudicating on the rights of women, the Court must not lose sight of the

institutions and values which have forced women to a shackled existence so far.

To fully recognise the role of law and society in shaping the lives and identities of

women, is also to ensure that patriarchal social values and legal norms are not

permitted to further obstruct the exercise of constitutional rights by the women of

our country.

4 In the preceding years, the Court has evolved a jurisprudence of rights-

granting primacy to the right to autonomy, dignity and individual choice. The right

to sexual autonomy and privacy has been granted the stature of a Constitutional

right. In confronting the sources of gendered injustice which threaten the rights

and freedoms promised in our Constitution, we set out to examine the validity of

Section 497 of the Indian Penal Code. In doing so, we also test the

constitutionality of moral and societal regulation of women and their intimate lives

through the law.

7 Ibid
8 Gayatri Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogies, Routledge (1990)

4
 PART B

B Judicial discourse on adultery

5 This Court, on earlier occasions, has tested the constitutionality of Section

497 of the Indian Penal Code as well as Section 198(2) of the Code of Criminal

Procedure.

Section 497 reads thus:

“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 198(2) of the Code of Criminal Procedure reads thus:

“(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 com- mitted may,
with the leave of the Court, make a complaint on his behalf.”

6 The decision of the Constitution Bench in Yusuf Abdul Aziz v State of

Bombay9, arose from a case where the appellant was being prosecuted for

adultery under Section 497. On a complaint being filed, he moved the High Court

to determine the constitutional question about the validity of the provision, under

9 1954 SCR 930

5
 PART B

Article 228. The High Court decided against the appellant10, but Chief Justice

Chagla made an observation about the assumption underlying Section 497:

“Mr Peerbhoy is right when he says that the underlying idea

of Section 497 is that wives are properties of their husbands.
The very fact that the offence is only cognizable with the
consent of the husband emphasises that point of view. It may
be argued that Section 497 should not find a place in any
modern Code of law. Days are past, when women were
looked upon as property by their husbands.”

A narrow challenge was addressed before this Court. The judgment of Justice

Vivian Bose records the nature of the challenge:

“3. Under Section 497 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.
The last sentence in Section 497 prohibits this. It runs—
“In such case the wife shall not be punishable as an abettor”.
It is said that this offends Articles 14 and 15.”

Hence, the challenge was only to the prohibition on treating the wife as an

abettor. It was this challenge which was dealt with and repelled on the ground

that Article 14 must be read with the other provisions of Part III which prescribe

the ambit of the fundamental rights. The prohibition on treating the wife as an

abettor was upheld as a special provision which is saved by Article 15(3). The

conclusion was that:

“5. Article 14 is general and must be read with the other

provisions which set out the ambit of fundamental rights. Sex
is a sound classification and although there can be no
discrimination in general on that ground, the Constitution itself
provides for special provisions in the case of women and
children. The two articles read together validate the impugned
clause in Section 497 of the Indian Penal Code.”

10 AIR 1951 Bom 470

6
 PART B

7 The challenge was to a limited part of Section 497: that which prohibited a

woman from being prosecuted as an abettor. Broader issues such as whether (i)

the punishment for adultery violates Article 21; (ii) the statutory provision suffers

from manifest arbitrariness; (iii) the legislature has, while ostensibly protecting

the sanctity of marriage, invaded the dignity of women; and (iv) Section 497

violates Article 15(1) by enforcing gender stereotypes were neither addressed

before this Court nor were they dealt with.

This Court construed the exemption granted to women from criminal sanctions as

a ‘special provision’ for the benefit of women and thus, protected under Article

15(3) of the Constitution. In Union of India v Elphinstone Spinning and

Weaving Co. Ltd,11 a Constitution Bench of this Court held:

“17…When the question arises as to the meaning of a certain

provision in a statute it is not only legitimate but proper to
read that provision in its context. The context means the
statute as a whole, the previous state of law, other statutes in
pari materia, the general scope of the statute and the mischief
that it was intended to remedy…”12

It is of particular relevance to examine the mischief that the provision intends to

remedy. The history of Section 497 reveals that the law on adultery was for the

benefit of the husband, for him to secure ownership over the sexuality of his wife.

It was aimed at preventing the woman from exercising her sexual agency. Thus,

Section 497 was never conceived to benefit women. In fact, the provision is

steeped in stereotypes about women and their subordinate role in marriage. The

11 (2001) 4 SCC 139

12 Ibid. at page 164

7
 PART B

patriarchal underpinnings of the law on adultery become evident when the

provision is considered as a whole.

8 In the subsequent decision of the three judge Bench in Sowmithri Vishnu

v Union of India13, the court proceeded on the basis that the earlier decision in

Yusuf Abdul Aziz had upheld Section 497 against a challenge based on Articles

14 and 15 of the Constitution. This is not a correct reading or interpretation of the

judgment.

9 Sowmithri Vishnu did as a matter of fact consider the wider constitutional

challenge on the ground that after the passage of thirty years, “particularly in the

light of the alleged social transformation in the behavioural pattern of women in

matters of sex”, it had become necessary that the matter be revisited. Sowmithri

Vishnu arose in a situation where a petition for divorce by the appellant against

her husband on the ground of desertion was dismissed with the finding that it

was the appellant who had deserted her husband. The appellant’s husband then

sued for divorce on the ground of desertion and adultery. Faced with this petition,

the appellant urged that a decree for divorce on the ground of desertion may be

passed on the basis of the findings in the earlier petition. She, however, opposed

the effort of the husband to urge the ground of adultery. While the trial court

accepted the plea of the husband to assert the ground of adultery, the High Court

held in revision that a decree of divorce was liable to be passed on the ground of

desertion, making it unnecessary to inquire into adultery. While the petition for
13 1985 Supp SCC 137

8
 PART B

divorce was pending against the appellant, her husband filed a complaint under

Section 497 against the person with whom the appellant was alleged to be in an

adulterous relationship. The appellant then challenged the constitutional validity

of Section 497.

The judgment of the three judge Bench indicates that three grounds of challenge

were addressed before this Court : first, while Section 497 confers a right on the

husband to prosecute the adulterer, it does not confer upon the wife to prosecute

the woman with whom her husband has committed adultery; second, Section

497 does not confer a right on the wife to prosecute her husband who has

committed adultery with another woman; and third, Section 497 does not cover

cases where a man has sexual relations with an unmarried woman. The

submission before this Court was that the classification under Section 497 was

irrational and ‘arbitrary’. Moreover, it was also urged that while facially, the

provision appears to be beneficial to a woman, it is in reality based on a notion of

paternalism “which stems from the assumption that women, like chattels, are the

property of men.”

10 The decision in Sowmithri Vishnu dealt with the constitutional challenge

by approaching the discourse on the denial of equality in formal, and rather

narrow terms. Chandrachud, CJ speaking for the three judge Bench observed

that by definition, the offence of adultery can be committed by a man and not by

a woman. The court construed the plea of the petitioner as amounting to a

9
 PART B

suggestion that the definition should be recast in a manner that would make the

offence gender neutral. The court responded by observing that this was a matter

of legislative policy and that the court could invalidate the provision only if a

constitutional violation is established. The logic of the court, to the effect that

extending the ambit of a statutory definition is a matter which requires legislative

change is unexceptionable. The power to fashion an amendment to the law lies

with the legislature. But this only leads to the conclusion that the court cannot

extend the legislative prescription by making the offence gender neutral. It does

not answer the fundamental issue as to whether punishment for adultery is valid

in constitutional terms. The error in Sowmithri Vishnu lies in holding that there

was no constitutional infringement. The judgment postulates that:

“7…It is commonly accepted that it is the man who is the

seducer and not the woman. This position may have
undergone some change over the years but it is for the
Legislature to consider whether Section 497 should be
amended appropriately so as to take note of the
“transformation” which the society has undergone. The Law
Commission of India in its Forty-second Report, 1971,
recommended the retention of Section 497 in its present form
with the modification that, even the wife, who has sexual
relations with a person other than her husband, should be
made punishable for adultery. The suggested modification
was not accepted by the Legislature. Mrs Anna Chandi, who
was in the minority, voted for the deletion of Section 497 on
the ground that “it is the right time to consider the question
whether the offence of adultery as envisaged in Section 497
is in tune with our present-day notions of woman's status in
marriage”. The report of the Law Commission shows that
there can be two opinions on the desirability of retaining a
provision like the one contained in Section 497 on the statute
book. But, we cannot strike down that section on the ground
that it is desirable to delete it.”14

14 Ibid. at page 141

10
 PART B

These observations indicate that the constitutional challenge was addressed

purely from the perspective of the argument that Section 497 is not gender

neutral, in allowing only the man but not to the woman in a sexual relationship to

be prosecuted. The court proceeded on the assumption, which it regards as

“commonly accepted that it is the man who is the seducer and not the woman.”

Observing that this position may have undergone some change, over the years,

the decision holds that these are matters for the legislature to consider and that

the desirability of deleting Section 497 is not a ground for invalidation.

11 The decision in Sowmithri Vishnu has left unanswered the fundamental

challenge which was urged before the Court. Under Article 14, the challenge was

that the statutory provision treats a woman purely as the property of her

husband. That a woman is regarded no more than as a possession of her

husband is evidenced in Section 497, in more than one context. The provision

stipulates that a man who has sexual intercourse with the wife of another will not

be guilty of offence if the husband of the woman were to consent or, (worse still,

to connive. In this, it is evident that the legislature attributes no agency to the

woman. Whether or not a man with whom she has engaged in sexual intercourse

is guilty of an offence depends exclusively on whether or not her husband is a

consenting individual. No offence exists if her husband were to consent. Even if

her husband were to connive at the act, no offence would be made out. The

mirror image of this constitutional infirmity is that the wife of the man who has

engaged in the act has no voice or agency under the statute. Again, the law does

11
 PART B

not make it an offence for a married man to engage in an act of sexual

intercourse with a single woman. His wife is not regarded by the law as a person

whose agency and dignity is affected. The underlying basis of not penalising a

sexual act by a married man with a single woman is that she (unlike a married

woman) is not the property of a man (as the law would treat her to be if she is

married). Arbitrariness is writ large on the provision. The problem with Section

497 is not just a matter of under inclusion. The court in Sowmithri Vishnu

recognised that an under-inclusive definition is not necessarily discriminatory and

that the legislature is entitled to deal with the evil where it is felt and seen the

most. The narrow and formal sense in which the provisions of Article 14 have

been construed is evident again from the following observations:

“8…The contemplation of the law, evidently, is that the wife,

who is involved in an illicit relationship with another man, is a
victim and not the author of the crime. The offence of
adultery, as defined in Section 497, is considered by the
Legislature as an offence against the sanctity of the
matrimonial home, an act which is committed by a man, as it
generally is. Therefore, those men who defile that sanctity are
brought within the net of the law. In a sense, we revert to the
same point: Who can prosecute whom for which offence
depends, firstly, on the definition of the offence and, secondly,
upon the restrictions placed by the law of procedure on the
right to prosecute.”15

The decision of the three judge Bench does not address the central challenge to

the validity of Section 497. Section 497, in its effort to protect the sanctity of

marriage, has adopted a notion of marriage which does not regard the man and

the woman as equal partners. It proceeds on the subjection of the woman to the

will of her husband. In doing so, Section 497 subordinates the woman to a

15 Ibid. at page 142

12
 PART B

position of inferiority thereby offending her dignity, which is the core of Article 21.

Significantly, even the challenge under Article 21 was addressed on behalf of the

petitioner in that case in a rather narrow frame. The argument before this Court

was that at the trial involving an offence alleged to have been committed under

Section 497, the woman with whom the accused is alleged to have had sexual

intercourse would have no right of being heard. It was this aspect alone which

was addressed in Sowmithri Vishnu when the court held that such a right of

being heard can be read in an appropriate case. Ultimately, the court held that:

“12…It is better, from the point of view of the interests of the

society, that at least a limited class of adulterous relationships
is punishable by law. Stability of marriages is not an ideal to
be scorned.”16

Sowmithri Vishnu has thus proceeded on the logic that in specifying an offence,

it is for the legislature to define what constitutes the offence. Moreover, who can

prosecute and who can be prosecuted, are matters which fall within the domain

of the law. The inarticulate major premise of the judgment is that prosecution for

adultery is an effort to protect the stability of marriages and if the legislature has

sought to prosecute only a limited class of ‘adulterous relationships’, its choice

could not be questioned. ‘Sowmithri Vishnu’ fails to deal with the substantive

aspects of constitutional jurisprudence which have a bearing on the validity of

Section 497: the guarantee of equality as a real protection against arbitrariness,

the guarantee of life and personal liberty as an essential recognition of dignity,

autonomy and privacy and above all gender equality as a cornerstone of a truly

equal society. For these reasons, the decision in Sowmithri Vishnu cannot be

16 Ibid. at page 144

13
 PART B

regarded as a correct exposition of the constitutional position. Sowmithri Vishnu

is overruled.

12 The decision of a two judge Bench in V Revathi v Union of India17

involved a challenge to Section 497 (read with Section 198(2) of the Code of

Criminal Procedure) which disables a wife from prosecuting her husband for

being involved in an adulterous relationship. The court noted that Section 497

permits neither the husband of the offending wife to prosecute her nor does it

permit the wife to prosecute her offending husband for being disloyal. This

formal sense of equality found acceptance by the court. The challenge was

repelled by relying on the decision in Sowmithri Vishnu. Observing that Section

497 and Section 198(2) constitute a “legislative packet”, the court observed that

the provision does not allow either the wife to prosecute an erring husband or a

husband to prosecute the erring wife. In the view of the court, this indicated that

there is no discrimination on the ground of sex. In the view of the court :

“5…The law does not envisage the punishment of any of the

spouses at the instance of each other. Thus there is no
discrimination against the woman insofar as she is not
permitted to prosecute her husband. A husband is not
permitted because the wife is not treated as an offender in the
eye of law. The wife is not permitted as Section 198(1) read
with Section 198(2) does not permit her to do so. In the
ultimate analysis the law has meted out even-handed justice
to both of them in the matter of prosecuting each other or
securing the incarceration of each other. Thus no
discrimination has been practised in circumscribing the scope
of Section 198(2) and fashioning it so that the right to
prosecute the adulterer is restricted to the husband of the
adulteress but has not been extended to the wife of the
adulterer.”18

17 (1988) 2 SCC 72
18 Ibid. at page 76

14
 PART C

13 The decision in Revathi is a reiteration of Sowmithri Vishnu. It applies

the doctrine of equality and the prohibition against discrimination on the ground

of sex in a formalistic sense. The logic of the judgment is that since neither of the

spouses (man or woman) can prosecute the erring spouse, the provision does

not discriminate on the ground of sex. Apart from reading equality in a narrow

confine, the judgment does not deal with crucial aspects bearing on the

constitutionality of the provision. Revathi, like Sowmithri Vishnu does not lay

down the correct legal principle.

C Relics of the past

“Our Massachusetts magistracy…have not been bold to put in

force the extremity of our righteous law against her. The
penalty thereof is death. But in their great mercy and
tenderness of heart they have doomed Mistress Prynne to
stand only a space of three hours on the platform of the
pillory, and then and thereafter, for the remainder of her
natural life to wear a mark of shame upon her bosom.”19

14 Section 497 of the Indian Penal Code, 1860 makes adultery a punishable

offence against “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.” It goes on to state that, “in such case the

wife shall not be punishable as an abettor.” The offence applies only to the man

committing adultery. A woman committing adultery is not considered to be an

19 Nathaniel Hawthorne, The Scarlet Letter, Bantam Books (1850), at page 59

15
 PART C

“abettor” to the offence. The power to prosecute for adultery rests only with the

husband of the woman.

Understanding the gendered nature of Section 497 needs an inquiry into the

origins of the provision itself as well as the offence of adultery more broadly. The

history of adultery throws light upon disparate attitudes toward male and female

infidelity, and reveals the double standard in law and morality that has been

applied to men and women.20

15 Throughout history, adultery has been regarded as an offence; it has been

treated as a religious transgression, as a crime deserving harsh punishment, as

a private wrong, or as a combination of these.21 The earliest recorded injunctions

against adultery are found in the ancient code of the Babylonian king

Hammurabi, dating from circa 1750 B.C. The code prescribed that a married

woman caught in adultery be bound to her lover and thrown into water so that

they drown together.22 By contrast, Assyrian law considered adultery to be a

private wrong for which the husband or father of the woman committing adultery

could seek compensation from her partner.23 English historian Faramerz

Dabhoiwala notes that the primary purpose of these laws was to protect the

property rights of men:

20
See David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008)
21 Ibid
22 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 10
23 Ibid, at page 11

16
 PART C

“Indeed, since the dawn of history every civilisation had

prescribed severe laws against at least some kind of sexual
immorality. The oldest surviving legal codes (c.2100-1700
BCE), drawn up by the kings of Babylon made adultery
punishable by death and most other near Eastern and
classical culture also treated it as a serious offence…The
main concern of such laws was usually to uphold the honour
and property rights of fathers, husbands and higher status
groups…”24

16 In Ancient Greco-Roman societies, there existed a sexual double standard

according to which adultery constituted a violation of a husband’s exclusive

sexual access to his wife, for which the law allowed for acts of revenge. 25 In 17

B.C., Emperor Augustus passed the Lex Julia de adulteriis coercendis, which

stipulated that a father was allowed to kill his daughter and her partner when

caught committing adultery in his or her husband’s house.26 While in the Judaic

belief adultery merited death by stoning for both the adulteress and her partner, 27

Christianity viewed adultery more as a moral and spiritual failure than as a public

crime.28 The penalties of the Lex Julia were made more severe by Christian

emperors. Emperor Constantine, for instance, introduced the death penalty for

adultery, which allowed the husband the right to kill his wife if she committed

adultery.29 Under the Lex Julia, adultery was primarily a female offence, and the

law reflected the sentiments of upper-class Roman males.30

24 Faramerz Dabhoiwala, The Origins of Sex: A History of the First Sexual Revolution (2012), at page 5
25 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
26 Vern Bullough, Medieval Concepts of Adultery, at page 7
27 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 27
28
Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, Vol. 30, Journal of Family Law (1991), at
page 46
29 Vern Bullough, Medieval Concepts of Adultery, at page 7
30 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 27

17
 PART C

17 Once monogamy came to be accepted as the norm in Britain between the

fourth and fifth centuries, adultery came to be recognized as a serious wrong that

interfered with a husband’s “rights” over his wife.31 The imposition of criminal

sanctions on adultery was also largely based on ideas and beliefs about sexual

morality which acquired the force of law in Christian Europe during the Middle

Ages.32 The development of canon law in the twelfth century enshrined the

perception of adultery as a spiritual misdemeanour. In the sixteenth century,

following the Reformation, adultery became a crucial issue because Protestants

placed new emphasis on marriage as a linchpin of the social and moral order. 33

Several prominent sixteenth century reformers, including Martin Luther and John

Calvin, argued that a marriage was irreparably damaged by infidelity, and they

advocated divorce in such cases.34

Concerned with the “moral corruption” prevalent in England since the

Reformation, Puritans in the Massachusetts Bay Colony introduced the death

penalty for committing adultery.35 The strict morality of the early English colonists

is reflected in the famous 1850 novel ‘The Scarlet Letter’ by Nathaniel

Hawthorne, in which an unmarried woman who committed adultery and bore a

child out of wedlock was made to wear the letter A (for adulterer) when she went

out in public; her lover was not so tagged, suggesting that women were punished

31 Jeremy D. Weinstein, Adultery, Law, and the State: A History, Vol. 38, Hastings Law Journal (1986), at page 202;
R. Huebner, A History of Germanic Private Law (F. Philbrick trans. 1918)
32
James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6
33 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
34 Ibid.
35 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 30

18
 PART C

more severely than men for adultery, especially when they had a child as

evidence.36

18 In 1650, England enacted the infamous Act for Suppressing the Detestable

Sins of Incest, Adultery and Fornication, which introduced the death penalty for

sex with a married woman.37 The purpose of the Act was as follows:

“For the suppressing of the abominable and crying sins

of…adultery… wherewith this Land is much defiled, and
Almighty God highly displeased; be it enacted...That in case
any married woman shall…be carnally known by any man
(other than her husband)…as well the man as the
woman…shall suffer death.”

The Act was a culmination of long-standing moral concerns about sexual

transgressions, sustained endeavours to regulate conjugal matters on a secular

plain, and a contemporaneous political agenda of socio-moral reform.38 It was

repealed in 1660 during the Restoration. The common law, however, was still

concerned with the effect of adultery by a married woman on inheritance and

property rights. It recognized the “obvious danger of foisting spurious offspring

upon her unsuspecting husband and bringing an illegitimate heir into his

family.”39 Accordingly, secular courts treated adultery as a private injury and a tort

36 James R. Mellow, Hawthorne's Divided Genius, The Wilson Quarterly (1982)

37
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996).
38 Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Puritans and Revolutionaries: Essays

in Seventeenth-Century History Presented to Christopher Hill (Donald Pennington, Keith Thomas, eds.), at page 281
39 Charles E. Torcia, Wharton's Criminal Law, Section 218, (1994) at page 528

19
 PART C

for criminal conversation was introduced in the late 17th century, which allowed

the husband to sue his wife’s lover for financial compensation.40

19 In 19th century Britain, married women were considered to be chattel of

their husbands in law, and female adultery was subjected to ostracism far worse

than male adultery because of the problem it could cause for property inheritance

through illegitimate children.41 Consequently, many societies viewed chastity,

together with related virtues such as modesty, as more central components of a

woman’s honor and reputation than of a man’s.42 The object of adultery laws was

not to protect the bodily integrity of a woman, but to allow her husband to

exercise control over her sexuality, in order to ensure the purity of his own

bloodline. The killing of a man engaged in an adulterous act with one’s wife was

considered to be manslaughter, and not murder.43 In R v Mawgridge,44 Judge

Holt wrote that:

“…[A] man is taken in adultery with another man’s wife, if the

husband shall stab the adulterer, or knock out his brains, this
is bare manslaughter: for Jealousy is the Rage of a Man and
Adultery is the highest invasion of property.”
(Emphasis supplied)

20 In his Commentaries on the Laws of England, William Blackstone wrote

that under the common law, “the very being or legal existence of the woman

40 J. E. Loftis, Congreve’s Way of the World and Popular Criminal Literature, Studies in English Literature, 1500 –
1900 36(3) (1996), at page 293
41
Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (2009), at page 143
42 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 28
43 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at page 191-192
44 (1707) Kel. 119

20
 PART C

[was] suspended during the marriage, or at least [was] incorporated and

consolidated into that of the husband: under whose wing, protection and cover,

she performe[d] everything.”45 In return for support and protection, the wife owed

her husband “consortium” of legal obligations, which included sexual

intercourse.46 Since adultery interfered with the husband's exclusive entitlements,

it was considered to be the “highest possible invasion of property,” similar to

theft.47 In fact, civil actions for adultery evolved from actions for enticing away a

servant from a master and thus depriving the master of the quasi-proprietary

interest in his services.48

Faramerz Dabhoiwala notes that a man’s wife was considered to be his property,

and that another man’s “unlawful copulation” with her warranted punishment:

“…[T]he earliest English law codes, which date from this time,
evoke a society where women were bought and sold and
lived constantly under the guardianship of men. Even in
cases of consensual sex, its system of justice was mainly
concerned with the compensation one man should pay to
another for unlawful copulation with his female chattel.”

21 When the IPC was being drafted, adultery was not a criminal offence in

common law. It was considered to be an ecclesiastical wrong “left to the feeble

coercion of the Spiritual Court, according to the rules of Canon Law.” 49 Lord

Thomas Babington Macaulay, Chairman of the First Law Commission of India

45 William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages 442 445
46 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris
Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
47
R v. Mawgridge, (1707) Kel. 119
48 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris

Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
49 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at pages 64-65

21
 PART C

and principal architect of the IPC, considered the possibility of criminalizing

adultery in India, and ultimately concluded that it would serve little purpose. 50

According to Lord Macaulay, the possible benefits from an adultery offence could

be better achieved through pecuniary compensation.51 Section 497 did not find a

place in the first Draft Penal Code prepared by Lord Macaulay. On an appraisal

of the facts and opinions collected from all three Presidencies about the

feasibility criminalizing adultery, he concluded in his Notes to the IPC that:

“…All the existing laws for the punishment of adultery are

altogether inefficacious for the purpose of preventing injured
husbands of the higher classes from taking the law into their
own hands; secondly; that scarcely any native of higher
classes ever has recourse to the courts of law in a case of
adultery for redress against either his wife, or her gallant;
thirdly, that the husbands who have recourse in case of
adultery to the Courts of law are generally poor men whose
wives have run away, that these husbands seldom have any
delicate feelings about the intrigue, but think themselves
injured by the elopement, that they consider wives as useful
members of their small households, that they generally
complain not of the wound given to their affections, not of the
stain on their honor , but of the loss of a menial whom they
cannot easily replace, and that generally their principal object
is that the women may be sent back.” These things being
established, it seems to us that no advantage is to be
expected from providing a punishment for adultery. We
think it best to treat adultery merely as a civil injury.”52
(Emphasis supplied)

22 The Law Commissioners, in their Second Report on the Draft Penal Code,

disagreed with Lord Macaulay’s view. Placing heavy reliance upon the status of

women in India, they concluded that:

50
Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review
(2016), at page 52
51 Ibid.
52 Macaulay's Draft Penal Code (1837), Note Q

22
 PART C

“While we think that the offence of adultery ought not to be

omitted from the code, we would limit its cognizance to
adultery committed with a married woman, and considering
that there is much weight in the last remark in note Q,
regarding the condition of the women, in this country, in
deference to it, we would render the male offender alone
liable to punishment. We would, however, put the parties
accused of adultery on trial “together”, and empower the
Court in the event of their conviction to pronounce a decree of
divorce against the guilty woman, if the husband sues for it, at
the same time that her paramour is sentenced to punishment
by imprisonment or fine.”53

The Law Commissioners’ decision to insert Section 497 into the IPC was rooted

in their concern about the possibility of the “natives” resorting to illegal measures

to avenge the injury in cases of adultery:

“The backwardness of the natives to have recourse to the

courts of redress in cases of adultery, [Colonel Sleeman]
asserts, “arises from the utter hopelessness on their part of
ever getting a conviction in our courts upon any evidence that
such cases admit of;” that is to say, in courts in which the
Mahommedan law is observed. “The rich man…not only feels
the assurance that he could not get a conviction, but dreads
the disgrace of appearing publicly in one court after another,
to prove…his own shame and his wife’s dishonor. He has
recourse to poison secretly, or with his wife’s consent; and
she will generally rather take it than be turned out into the
streets a degraded outcast. The seducer escapes with
impunity, he suffers nothing, while his poor victim suffers all
that human nature is capable of enduring…The silence of the
Penal Code will give still greater impunity to the seducers,
while their victims will, in three cases out of four, be
murdered, or driven to commit suicide. Where husbands are
in the habit of poisoning their guilty wives from the want of
legal means of redress, they will sometimes poison those who
are suspected upon insufficient grounds, and the innocent will
suffer.”54

53
Second Report on the Indian Penal Code (1847), at pages 134-35, cited from, Law Commission of India, Forty-
second Report: Indian Penal Code, at page 365
54 A Penal Code prepared by The Indian Law Commissioners (1838), The Second Report on the Indian Penal Code,

at page 74

23
 PART C

Section 497 and Section 198 are seen to treat men and women unequally, as

women are not subject to prosecution for adultery, and women cannot prosecute

their husbands for adultery. Additionally, if there is “consent or connivance” of the

husband of a woman who has committed adultery, no offence can be

established. In its 42nd Report, the Law Commission of India considered the

legislative history of Section 497 and the purported benefit of criminal sanctions

for adultery. The Committee concluded that, “though some of us were personally

inclined to recommend repeal of the section, we think on the whole that the time

has not yet come for making such a radical change in the existing position.” 55 It

recommended that Section 497 be retained, but with a modification to make

women who commit adultery liable as well.

23 In its 156th Report, the Law Commission made a proposal which it believed

reflected the “‘transformation’ which the society has undergone,” by suggesting

removing the exemption from liability for women under Section 497. 56 In 2003,

the Justice Malimath Committee 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.” 57

The Committee supported earlier proposals to not repeal the offence, but to

equate liability for the sexes:

“The object of the Section is to preserve the sanctity of

marriage. Society abhors marital infidelity. Therefore, there is
no reason for not meting out similar treatment to the wife who

55 Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326
56 Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172
57 Report of the Committee on Reforms of Criminal Justice System (2003), at page 190

24
 PART C

has sexual intercourse with a man (other than her

husband).”58

Neither the recommendations of the Law Commission nor those of the Malimath

Committee have been accepted by the Legislature. Though women are

exempted from prosecution under Section 497, the underlying notion upon which

the provision rests, which conceives of women as property, is extremely harmful.

The power to prosecute lies only with the husband (and not to the wife in cases

where her husband commits adultery), and whether the crime itself has been

committed depends on whether the husband provides “consent for the allegedly

adulterous act.”

24 Women, therefore, occupy a liminal space in the law: they cannot be

prosecuted for committing adultery, nor can they be aggrieved by it, by virtue of

their status as their husband’s property. Section 497 is also premised upon

sexual stereotypes that view women as being passive and devoid of sexual

agency. The notion that women are ‘victims’ of adultery and therefore require the

beneficial exemption under Section 497 has been deeply criticized by feminist

scholars, who argue that such an understanding of the position of women is

demeaning and fails to recognize them as equally autonomous individuals in

society.59 Effectively, Indian jurisprudence has interpreted the constitutional

guarantee of sex equality as a justification for differential treatment: to treat men

58 Ibid.
59 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review
(2016), at page 63

25
 PART C

and women differently is, ultimately, to act in women’s interests. 60 The status of

Section 497 as a “special provision”61 operating for the benefit of women,

therefore, constitutes a paradigmatic example of benevolent patriarchy.

25 Throughout history, the law has failed to ask the woman question. 62 It has

failed to interrogate the generalizations or stereotypes about the nature,

character and abilities of the sexes on which laws rest, and how these notions

affect women and their interaction with the law. A woman's ‘purity’ and a man’s

marital ‘entitlement’ to her exclusive sexual possession may be reflective of the

antiquated social and sexual mores of the nineteenth century, but they cannot be

recognized as being so today. It is not the “common morality” of the State at any

time in history, but rather constitutional morality, which must guide the law. In any

democracy, constitutional morality requires the assurance of certain rights that

are indispensable for the free, equal, and dignified existence of all members of

society. A commitment to constitutional morality requires us to enforce the

constitutional guarantees of equality before law, non-discrimination on account of

sex, and dignity, all of which are affected by the operation of Section 497.

60 Brenda Cossman and Ratna Kapur, Subversive Sites: Feminist Engagements with Law in India (1996)
61
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930
62 The ‘Woman Question’ was one of the great issues that occupied the middle of the nineteenth century, namely the

social purpose of women. It is used as a tool to enquire into the status of women in the law and how they interact
with and are affected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard Law Review (1990)

26
 PART D

D Across frontiers

26 The last few decades have been characterized by numerous countries

around the world taking measures to decriminalize the offence of adultery due to

the gender discriminatory nature of adultery laws as well as on the ground that

they violate the right to privacy. However, progressive action has primarily been

taken on the ground that provisions penalising adultery are discriminatory against

women either patently on the face of the law or in their implementation. Reform

towards achieving a more egalitarian society in practice has also been driven by

active measures taken by the United Nations and other international human

rights organizations, where it has been emphasized that even seemingly gender-

neutral provisions criminalising adultery cast an unequal burden on women:63

“Given continued discrimination and inequalities faced by

women, including inferior roles attributed to them by
patriarchal and traditional attitudes, and power imbalances in
their relations with men, the mere fact of maintaining adultery
as a criminal offence, even when it applies to both women
and men, means in practice that women mainly will continue
to face extreme vulnerabilities, and violation of their human
rights to dignity, privacy and equality.”

The abolishing of adultery has been brought about in equal measure by

legislatures and courts. When decisions have been handed down by the judiciary

across the world, it has led to the creation of a rich body of transnational

jurisprudence. This section will focus on a few select comparative decisions

emanating from the courts of those countries where the provision criminalizing

adultery has been struck down through judicial action. The decisions of these
63 U N Working Group on Women’s Human Rights: Report (18 October, 2012), available at:
http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E

27
 PART D

courts reflect how the treatment of the law towards adultery has evolved with the

passage of time and in light of changing societal values.

27 In 2015, the South Korean Constitutional Court,64 by a majority of 7-2

struck down Article 241 of the Criminal Law; a provision which criminalized

adultery with a term of imprisonment of two years as unconstitutional. In doing

so, South Korea joined a growing list of countries in Asia and indeed around the

world that have taken the measure of effacing the offence of adultery from the

statute books, considering evolving public values and societal trends. The

Constitutional Court had deliberated upon the legality of the provision four times

previously65, but chose to strike it down when it came before it in 2015, with the

Court’s judgement acknowledging the shifting public perception of individual

rights in their private lives.

The majority opinion of the Court was concurred with by five of the seven

judges66 who struck down the provision. The majority acknowledged that the

criminal provision had a legitimate legislative purpose in intending “to promote

the marriage system based on good sexual culture and practice and monogamy

and to preserve marital fidelity between spouses.” However, the Court sought to

strike a balance between the legitimate interest of the legislature in promoting the

64Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at
http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do
65
Firstpost, South Korean court abolishes law that made adultery illegal, (February 26, 2015), available at
https://www.firstpost.com/world/south-korean-court-abolishes-law-saying-adultery-is-illegal-2122935.html
66 Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong, Justice Seo Ki-Seog and Justice

Cho Yong-Ho (Adultery is Unconstitutional)

28
 PART D

institution of marriage and marital fidelity vis-à-vis the fundamental right of an

individual to self-determination, which included sexual-self-determination, and

was guaranteed under Article 10 of their Constitution.67 The Court held:

“The right to self-determination connotes the right to sexual

self-determination that is the freedom to choose sexual
activities and partners, implying that the provision at issue
restricts the right to sexual self-determination of individuals. In
addition, the provision at Issue also restricts the right to
privacy protected under Article 17 of the Constitution in that it
restricts activities arising out of sexual life belonging to the
intimate private domain.”

The Court used the test of least restrictiveness, and began by acknowledging

that there no longer existed public consensus on the criminalization of adultery,

with the societal structure having changed from holding traditional family values

and a typeset role of family members to sexual views driven by liberal thought

and individualism. While recognizing that marital infidelity is immoral and

unethical, the Court stated that love and sexual life were intimate concerns, and

they should not be made subject to criminal law. Commenting on the balance

between an individual’s sexual autonomy vis-à-vis societal morality, the Court

remarked:

“…the society is changing into one where the private interest

of sexual autonomy is put before the social interest of sexual
morality and families from the perspective of dignity and
happiness of individuals.”68

67 Article 10 of the South Korean Constitution “All citizens are assured of human worth and dignity and have the right
to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human
rights of individuals.”
68 Supra, note 64, Part V- A (3)(1) (‘Change in Public’s Legal Awareness’ under the head of ‘Appropriateness of

Means and Least Restrictiveness’)

29
 PART D

Next, the Court analysed the appropriateness and effectiveness of criminal

punishment in curbing the offence of adultery. Addressing the question of

whether adultery should be regulated, the Court stated that modern criminal law

dictated that the State should not seek to interfere in an act that is not socially

harmful or deleterious to legal interests, simply because it is repugnant to

morality. Moreover, it held that the State had no business in seeking to control

an individual’s actions which were within the sphere of his or her constitutionally

protected rights of privacy and self-determination.

Moving on to the effectiveness of the provision at hand, the Court remarked that

criminalizing adultery did not help save a failing marriage. The Court remarked

that it was obvious that once a spouse was accused of adultery, the

consequence was generally intensified spousal conflict as opposed to the

possibility of family harmony:

“Existing families face breakdown with the invoking of the

right to file an accusation. Even after cancellation of the
accusation, it is difficult to hope for emotional recovery
between spouses. Therefore, the adultery crime can no
longer contribute to protecting the marital system or family
order. Furthermore, there is little possibility that a person who
was punished for adultery would remarry the spouse who had
made an accusation against himself/herself. It is neither
possible to protect harmonious family order because of the
intensified conflict between spouses in the process of criminal
punishment of adultery.”69

69 Supra, note 64, Part V- A (3)(3) (‘Effectiveness of Criminal Punishment’, under the head of ‘Appropriateness of
Means and Least Restrictiveness’)

30
 PART D

Addressing the concern that an abolition of a penal consequence would result in

“chaos in sexual morality” or an increase of divorce due to adultery, the Court

concluded that there was no data at all to support these claims in countries

where adultery is repealed, stating:

“Rather, the degree of social condemnation for adultery has

been reduced due to the social trend to value the right to
sexual self-determination and the changed recognition on
sex, despite of the punishment of adultery. Accordingly, it is
hard to anticipate a general and special deterrence effect for
adultery from the perspective of criminal policy as it loses the
function of regulating behaviour.”70

The Court also analysed the argument that adultery provisions protected women:

“It is true that the existence of adultery crimes in the past

Korean society served to protect women. Women were
socially and economically underprivileged, and acts of
adultery were mainly committed by men. Therefore, the
existence of an adultery crime acted as psychological
deterrence for men, and, furthermore, enabled female
spouses to receive payment of compensation for grief or
divided assets from the male spouse on the condition of
cancelling the adultery accusation.

However, the changes of our society diluted the justification of

criminal punishment of adultery. Above all, as women’s
earning power and economic capabilities have improved with
more active social and economic activities, the premise that
women are the economically disadvantaged does not apply to
all married couples.”

Finally, the Court concluded its analysis by holding that the interests of enforcing

monogamy, protecting marriage and promoting marital fidelity, balanced against

70 Ibid.

31
 PART D

the interference of the State in the rights to privacy and sexual autonomy were

clearly excessive and therefore failed the test of least restrictiveness.71

28 In 2007, the Ugandan Constitutional Court in Law Advocacy for Women

in Uganda v Attorney General of Uganda72, was called upon to rule on the

constitutionality of Section 154 of the Penal Code, on, the grounds that it violated

various protections granted by the Ugandan Constitution and meted out

discriminatory treatment between women and men. The law as it stood allowed a

married man to have a sexual relationship with an unmarried woman. Moreover,

only a man could be guilty of the offence of adultery when he had sexual

intercourse with a married woman. The same provision, however, penalized a

married woman who engaged in a sexual relationship with an unmarried or

married man outside of the marriage. The penalties for the offence also

prescribed a much stricter punishment for women as compared to their male

counterparts.73 The challenge was brought primarily under Article 21 of the

Ugandan Constitution, which guaranteed equality under the law, Article 24 which

mandates respect for human dignity and protection from inhuman treatment and
74
Article 33(1), which protected the rights of women under the Constitution.

71 Supra, note 64, Part V- A (5) (‘Balance of Interests & Conclusion’)

72 Constitutional Petitions Nos. 13 /05 /& 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of
Uganda, (2007) UGCC 1 (5 April, 2007), available at
https://ulii.org/ug/judgment/constitutional-court/2007/1
73 Reuters: ‘Uganda scraps "sexist" adultery law’, (April 5, 2007), available at

https://www.reuters.com/article/us-uganda-adultery/uganda-scraps-sexist-adultery-law-idUSL0510814320070405
74 Constitutional Petitions Nos. 13 /05 /& 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of

Uganda, [2007] UGCC 1 (5 April, 2007), available at

https://ulii.org/ug/judgment/constitutional-court/2007/1

32
 PART D

The Respondent prayed that the Court consider making the provision of adultery

equal in its treatment of men and women, instead of striking it down completely.

However, in its holding, the Court denied this request, holding it could not

prescribe a punishment under penal law to change the statute. The Court held

that Section 154 of the Penal Code was wholly unconstitutional as being violative

of the provisions of the Constitution, and remarked:

“...the respondent did not point out to us areas that his Court
can or should modify and adapt to bring them in conformity
with the provisions of the Constitution. The section is a penal
one and this Court in our considered opinion cannot create a
sentence that the courts can impose on adulterous spouses.

Consequently, it is our finding that the provision of section

154 of the Penal Code Act is inconsistent with the stated
provisions of the Constitution and it is void.”75

29 In 2015, in DE v RH,76 the Constitutional Court of South Africa held that an

aggrieved spouse could no longer seek damages against a third party in cases of

adultery. Madlanga J poignantly remarked on the preservation of marriage:

“…although marriage is ‘a human institution which is

regulated by law and protected by the Constitution and which,
in turn, creates genuine legal duties . . . Its essence . . .
consists in the readiness, founded in morals, of the parties to
the marriage to create and to maintain it’. If the parties to the
marriage have lost that moral commitment, the marriage will
fail and punishment meted out to a third party is unlikely to
change that.”77

75 Ibid.
76 DE v RH, [2015] ZACC 18
77 Ibid, at para 34

33
 PART D

The decisions of the US Supreme Court bearing on the issue of privacy have

been analysed in an incisive article, titled “For Better or for Worse: Adultery,

Crime and The Constitution”78, by Martin Siegel. He presents three ways in which

adultery implicates the right to privacy. The first is that adultery must be viewed

as a constitutionally protected marital choice. Second, that certain adulterous

relationships are protected by the freedom of association and finally, that adultery

constitutes an action which is protected by sexual privacy.79 A brief study is also

undertaken on whether action penalizing adultery constitutes a legitimate interest

of the State.

The first privacy interest in adultery is the right to marital choice. The U.S.

Supreme Court has upheld the values of ‘fundamental liberty’, ‘freedom of

choice’ and ‘the ‘right to privacy’ in marriage. With this jurisprudence, the author

argues, it would be strange if a decision to commit adultery is not a treated as a

matter of marriage and family life as expressed in Cleveland Board80, ‘an act

occurring in marriage’, as held in Griswold81 or a ‘matter of marriage and family

life’ as elucidated in Carey.82

78 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
45
79
Ibid, at page 46
80 Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973)
81 Griswold, 381 U.S. 1 (1967)
82 Carey, v. Population Serv. Int’l, 431 U.S. 678

34
 PART D

Siegel posits that a decision to commit adultery is a decision ‘relating to marriage

and family relationships’ and therefore, falls within the domain of protected

private choices. He observes that the essence of the offence is in fact the

married status of one of the actors, and the mere fact that the commission of the

act consisted of a mere sexual act or a series of them is legally irrelevant. If the

argument that adultery, though unconventional, is an act related to marriage and

therefore fundamentally private is accepted, then it deserves equal protection.

Siegel cites Laurence Tribe, on accepting the ‘unconventional variants’ that also

form a part of privacy:

“Ought the “right to marriage,” as elucidated by Griswold,

Loving v. Virginia, Zablocki, Boddie v. Connecticut and
Moore, also include marriage's "unconventional variants"-in
this case the adulterous union?”83

The mere fact that adultery is considered unconventional in society does not

justify depriving it of privacy protection. The freedom of making choices also

encompasses the freedom of making an ‘unpopular’ choice. This was articulated

by Justice Blackmun in his dissent in Hardwick84:

“A necessary corollary of giving individuals freedom to choose

how to conduct their lives is acceptance of the fact that
different individuals will make different choices.”85

Siegel concludes that the privacy protections afforded to marriage must extend to

all choices made within the marriage:

83
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
70
84 Hardwick, 478 U.S.205
85 Ibid, at page 206

35
 PART D

“The complexity and diversity among marriages make it all

the more important that the privacy associated with that
institution be construed to include all kinds of marriages,
sexually exclusive as well as open, ‘good’, as well as ‘bad’.”86

Siegel then proceeds to examine the next privacy interest in adultery, that of the

right to association. The right to freedom of association he states is ‘a close

constitutional relative of privacy’87, and they often interact in an intertwined

manner. Siegel proceeds to explain that adultery must not simply be looked at as

an act of consensual adult sexual activity, as sexual activity may simply be one

element in a continuum of interactions between people:

“Sexual activity may be preliminary or incidental to a

developing association, or it may be its final culmination and
solidification. In either case, it is simply one more element of
the relationship. Two people may have sex upon first
meeting. In this case, associational interests seem less
important, although "loveless encounters are sometimes
prerequisites for genuine love relationships; to forbid the
former is, therefore, to inhibit the latter."' 88

Next, Siegel examines the plausible protection of adultery through the lens of the

freedom of expression. Since the act of engaging in sexual activity can be

interpreted as being expressive, Siegel claims adultery might also implicate First

Amendment rights. In support he cites a body of case law89,where courts have

held that First Amendment rights are not limited to merely verbal expression but

also encompass the right to ‘expressive association’.

86 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
74
87 Ibid, at page 77
88 Ibid, at, page 78
89 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)

36
 PART D

In concluding his section on the right to associate, Siegel warns against the

dangers of classifying adultery solely as a sexual activity, as doing so would be

akin to protecting a part of the relationship and criminalizing the other. This would

be manifestly unjust:

“It is difficult, both theoretically and practically, to single out

the sexual contacts two people may have from the rest of
their relationship- to criminalize the one and constitutionally
protect as fundamental the other”. 90

Lastly, Siegel discusses the connection between adultery and the right to sexual

privacy. It is accepted that a right to privacy safeguards an individual’s deeply

personal choices which includes a recognition accorded to the inherently private

nature of all consensual adult sexual activity.91 This understanding of sexual

privacy found favour with the U.S. Supreme Court, which in Thornburgh v

American College of Obstetricians and Gynaecologists92 quoted Charles

Fried with approval:

“The concept of privacy embodies the moral fact that a

person belongs to himself and not to others nor to society as
a whole.”93

Siegel reiterates the underlying intangible value of adult consensual sexual

activity:

90 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
78
91
Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
82
92 Thornburgh v. American College of Obstetricians and Gynaecologists, 476 U.S. 747 (1986)
93 Ibid, at Page 777

37
 PART D

“The real importance of sexuality to humans, more so in

today's world of effective birth control than ever, lies in the
possibilities for self-realization and definition inherent in
sexual choices. Sexual experience offers “self-
transcendence, expression of private fantasy, release of inner
tensions, and meaningful and acceptable expression of
regressive desires to be again the free child - unafraid to lose
control, playful, vulnerable, spontaneous, sensually loved.”94

Reflecting on the relationship between marital privacy and associational freedom,

Spiegel remarks the “heterogeneity of experience”, resulting in a variety of

choices, necessarily include the adulterous union which must be protected since

it is unrealistic to expect all individuals to conform to society’s idea of sexuality:

“Because sex is so much a part of our personhood, we should

not expect that people different in so many other ways will be
identical sexually. For some, adultery is a cruel betrayal, while
for others it is just comeuppance for years of spousal neglect.
In some marriages, sex is the epitome of commitment, while
in others spouses jointly and joyfully dispense with sexual
monogamy.”95

In concluding the author states that the foregoing three-layered analysis left no

room for doubt that adultery was a matter of marriage. It therefore deserved to be

protected like all other affairs occurring in marriage and implicated routine

privacy-based freedoms, and it was imperative to treat is as such. Spiegel

concludes by quoting the U.S. Supreme Court in Eisenstadt v Braid, on the

importance of protecting the power to make a ‘bad’ choice in a marriage:

“A marriage's privacy and autonomy are the best routes to

safeguarding liberty and pluralism. This is no less true when

94 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
at page 85
95 Ibid, at Page 86

38
 PART D

the power to choose, as it inevitably will, results in bad

choices. It is a confidence in nothing less than the theory
underscoring our entire political order: Our system of
government requires that we have faith in the ability of the
individual to decide wisely, if only he is fully appraised of the
merits of the controversy.”96

While acknowledging the interest that the State has in preserving the institution

of marriage, Siegel precisely points out the inefficacy of attaching criminal

sanctions to adultery in the following words:

“Even if we accept that a state is trying to foster the interests

of specific deceived spouses by its laws criminalizing
adultery, it is impossible to believe that a criminal penalty
imposed on one of the spouses would somehow benefit a
marriage instead of representing the final nail in its coffin. And
if deterrence of adultery is the goal, then the state's failure to
arrest and prosecute offenders has long since removed any
fear of legal sanction.”97

Deborah L Rhode in her book titled “Adultery” argues that “intermittent

idiosyncratic invocations of adultery prohibitions do little to enforce marital vows

or reinforce confidence in the rule of law. There are better ways to signal respect

for the institution of marriage and better uses of law enforcement than policing

private, consensual sexual activity.”98

96
Eisenstadt v. Baird , 405 U.S. 438, 457 (1972)
97 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991)
89
98 Deborah Rhode, Adultery: Infidelity and the Law, (Harvard University Press, 2016)

39
 PART E

E Confronting patriarchy

“Norms and ideals arise from the yearning that it is an

expression of freedom: it does not have to be this way, it
could be otherwise.”99

30 The petitioner urged that (i) The full realisation of the ideal of equality

enshrined in Article 14 of the Constitution ought to be the endeavour of this

Court; (ii) the operation of Section 497 is a denial of equality to women in

marriage; and (iii) the provision is manifestly arbitrary and amounts to a violation

of the constitutional guarantee of substantive equality.

The act which constitutes the offence under Section 497 of the Penal Code is a

man engaging in sexual intercourse with a woman who is the “wife of another

man”. For the offence to arise, the man who engages in sexual intercourse must

either know or have reason to believe that the woman is married. Though a man

has engaged in sexual intercourse with a woman who is married, the offence of

adultery does not come into being where he did so with the consent or

connivance of her husband.

These ingredients of Section 497 lay bare several features which bear on the

challenge to its validity under Article 14. The fact that the sexual relationship

between a man and a woman is consensual is of no significance to the offence, if

the ingredients of the offence are established. What the legislature has

99 Iris Marion Young, Justice and the Politics of Difference, Princeton University Press, 1990

40
 PART E

constituted as a criminal offence is the act of sexual intercourse between a man

and a woman who is “the wife of another man”. No offence exists where a man

who has a subsisting marital relationship engages in sexual intercourse with a

single woman. Though adultery is considered to be an offence relating to

marriage, the legislature did not penalise sexual intercourse between a married

man and a single woman. Even though the man in such a case has a spouse,

this is considered to be of no legal relevance to defining the scope of the offence.

That is because the provision proceeds on the notion that the woman is but a

chattel; the property of her husband. The fact that he is engaging in a sexual

relationship outside marriage is of no consequence to the law. The woman with

whom he is in marriage has no voice of her own, no agency to complain. If the

woman who is involved in the sexual act is not married, the law treats it with

unconcern. The premise of the law is that if a woman is not the property of a

married man, her act would not be deemed to be ‘adulterous’, by definition.

31 The essence of the offence is that a man has engaged in an act of sexual

intercourse with the wife of another man. But if the man to whom she is married

were to consent or even to connive at the sexual relationship, the offence of

adultery would not be established. For, in the eyes of law, in such a case it is for

the man in the marital relationship to decide whether to agree to his spouse

engaging in a sexual act with another. Indeed, even if the two men (the spouse

of the woman and the man with whom she engages in a sexual act) were to

connive, the offence of adultery would not be made out.

41
 PART E

32 Section 497 is destructive of and deprives a woman of her agency,

autonomy and dignity. If the ostensible object of the law is to protect the

‘institution of marriage’, it provides no justification for not recognising the agency

of a woman whose spouse is engaged in a sexual relationship outside of

marriage. She can neither complain nor is the fact that she is in a marital

relationship with a man of any significance to the ingredients of the offence. The

law also deprives the married woman who has engaged in a sexual act with

another man, of her agency. She is treated as the property of her husband. That

is why no offence of adultery would be made out if her husband were to consent

to her sexual relationship outside marriage. Worse still, if the spouse of the

woman were to connive with the person with whom she has engaged in sexual

intercourse, the law would blink. Section 497 is thus founded on the notion that a

woman by entering upon marriage loses, so to speak, her voice, autonomy and

agency. Manifest arbitrariness is writ large on the provision.

33 The test of manifest arbitrariness is rooted in Indian jurisprudence. In E P

Royappa v State of Tamil Nadu100, Justice Bhagwati characterised equality as a

“dynamic construct” which is contrary to arbitrariness:

“85…Now, what is the content and reach of this great

equalising principle? It is a founding faith, to use the words of
Bose. J., “a way of life”, and it must not be subjected to a
narrow pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its all-embracing scope
and meaning, for to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many
aspects and dimensions and it cannot be “cribbed,

100 (1974) 4 SCC 3

42
 PART E

cabined and confined” within traditional and doctrinaire

limits. From a positivistic point of view, equality is
antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule
of law in a republic while the other, to the whim and
caprice of an absolute monarch. Where an act is
arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is
therefore violative of Article 14…”101
(Emphasis supplied)

The Constitution Bench in Shayara Bano v Union of India102 held the practice of

Triple Talaq to be unconstitutional. Justice Rohinton Nariman, in his concurring

opinion, applied the test of manifest arbitrariness to hold that the practice does

not pass constitutional muster:

“87. The thread of reasonableness runs through the

entire fundamental rights chapter. What is manifestly
arbitrary is obviously unreasonable and being contrary to
the rule of law, would violate Article 14. Further, there is an
apparent contradiction in the three-Judge Bench decision
in McDowell [State of A.P. v. McDowell and Co., (1996) 3
SCC 709] when it is said that a constitutional challenge can
succeed on the ground that a law is “disproportionate,
excessive or unreasonable”, yet such challenge would fail on
the very ground of the law being “unreasonable, unnecessary
or unwarranted”. The arbitrariness doctrine when applied to
legislation obviously would not involve the latter challenge but
would only involve a law being disproportionate, excessive or
otherwise being manifestly unreasonable. All the aforesaid
grounds, therefore, do not seek to differentiate between State
action in its various forms, all of which are interdicted if they
fall foul of the fundamental rights guaranteed to persons and
citizens in Part III of the Constitution.”103
(Emphasis supplied)

101 Ibid. at page 38

102 (2017) 9 SCC 1
103 Ibid. at pages 91-92

43
 PART E

On the application of the test of manifest arbitrariness to invalidate legislation, the

learned Judge held thus:

“ 101…there is no rational distinction between the two types

of legislation when it comes to this ground of challenge under
Article 14. The test of manifest arbitrariness, therefore, as laid
down in the aforesaid judgments would apply to invalidate
legislation as well as subordinate legislation under Article 14.
Manifest arbitrariness, therefore, must be something done by
the legislature capriciously, irrationally and/or without
adequate determining principle. Also, when something is
done which is excessive and disproportionate, such
legislation would be manifestly arbitrary. We are, therefore, of
the view that arbitrariness in the sense of manifest
arbitrariness as pointed out by us above would apply to
negate legislation as well under Article 14.”104

34 The decision in Shayara Bano, holds that legislation or state action which

is manifestly arbitrary would have elements of caprice and irrationality and would

be characterized by the lack of an adequately determining principle. An

“adequately determining principle” is a principle which is in consonance with

constitutional values. With respect to criminal legislation, the principle which

determines the “act” that is criminalized as well as the persons who may be held

criminally culpable, must be tested on the anvil of constitutionality. The principle

must not be determined by majoritarian notions of morality which are at odds with

constitutional morality.

104 Ibid. at page 99

44
 PART E

In Navtej Singh Johar v Union of India, (“Navtej”)105 Justice Indu Malhotra

emphasized the need for a “sound” or “rational principle” underlying a criminal

provision:

“ …Section 377 insofar as it criminalises consensual sexual

acts between adults in private, is not based on any sound or
rational principle…

Further, the phrase “carnal intercourse against the order of

nature” in Section 377 as a determining principle in a penal
provision, is too open-ended, giving way to the scope for
misuse against members of the LGBT community.”

35 The hypothesis which forms the basis of the law on adultery is the

subsistence of a patriarchal order. Section 497 is based on a notion of morality

which fails to accord with the values on which the Constitution is founded. The

freedoms which the Constitution guarantees inhere in men and women alike. In

enacting Section 497, the legislature made an ostensible effort to protect the

institution of marriage. ‘Ostensible’ it is, because the provision postulates a

notion of marriage which subverts the equality of spouses. Marriage in a

constitutional regime is founded on the equality of and between spouses. Each

of them is entitled to the same liberty which Part III guarantees. Each of them is

entitled to take decisions in accordance with his and her conscience and each

must have the ability to pursue the human desire for fulfilment. Section 497 is

based on the understanding that marriage submerges the identity of the woman.

It is based on a notion of marital subordination. In recognising, accepting and

enforcing these notions, Section 497 is inconsistent with the ethos of the

Constitution. Section 497 treats a woman as but a possession of her spouse. The

105 Writ Petition (Criminal) No. 76 OF 2016

45
 PART E

essential values on which the Constitution is founded – liberty, dignity and

equality – cannot allow such a view of marriage. Section 497 suffers from

manifest arbitrariness.

36 While engrafting the provision into Chapter XX of the Penal Code – “of

offences relating to marriage” – the legislature has based the offence on an

implicit assumption about marriage. The notion which the law propounds and to

which it imposes the sanctions of penal law is that the marital tie subordinates

the role and position of the woman. In that view of marriage, the woman is bereft

of the ability to decide, to make choices and give free expression to her

personality. Human sexuality is an essential aspect of identity. Choices in

matters of sexuality are reflective of the human desire for expression. Sexuality

cannot be construed purely as a physiological attribute. In its associational

attributes, it links up with the human desire to be intimate with a person of one’s

choice. Sharing of physical intimacies is a reflection of choice. In allowing

individuals to make those choices in a consensual sphere, the Constitution

acknowledges that even in the most private of zones, the individual must have

the ability to make essential decisions. Sexuality cannot be dis-associated from

the human personality. For, to be human involves the ability to fulfil sexual

desires in the pursuit of happiness. Autonomy in matters of sexuality is thus

intrinsic to a dignified human existence. Human dignity both recognises and

protects the autonomy of the individual in making sexual choices. The sexual

choices of an individual cannot obviously be imposed on others in society and

46
 PART E

are premised on a voluntary acceptance by consenting parties. Section 497

denudes the woman of the ability to make these fundamental choices, in

postulating that it is only the man in a marital relationship who can consent to his

spouse having sexual intercourse with another. Section 497 disregards the

sexual autonomy which every woman possesses as a necessary condition of her

existence. Far from being an equal partner in an equal relationship, she is

subjugated entirely to the will of her spouse. The provision is proffered by the

legislature as an effort to protect the institution of marriage. But it proceeds on a

notion of marriage which is one sided and which denies agency to the woman in

a marital tie. The ability to make choices within marriage and on every aspect

concerning it is a facet of human liberty and dignity which the Constitution

protects. In depriving the woman of that ability and recognising it in the man

alone, Section 497 fails to meet the essence of substantive equality in its

application to marriage. Equality of rights and entitlements between parties to a

marriage is crucial to preserve the values of the Constitution. Section 497

offends that substantive sense of equality and is violative of Article 14.

37 The procedural law which has been enacted in Section 198 of the Code of

Criminal Procedure 1973 re-enforces the stereotypes implicit in Section 497.

Cognizance of an offence under Chapter XX of the Penal Code can be taken by

a Court only upon a complaint of a person aggrieved. In the case of an offence

punishable under Section 497, only the husband of the woman is deemed to be

aggrieved by the offence. In any event, once the provisions of Section 497 are

47
 PART E

held to offend the fundamental rights, the procedure engrafted in Section 198 will

cease to have any practical relevance.

38 Section 497 amounts to a denial of substantive equality. The decisions in

Sowmithri and Revathi espoused a formal notion of equality, which is contrary

to the constitutional vision of a just social order. Justness postulates equality. In

consonance with constitutional morality, substantive equality is “directed at

eliminating individual, institutional and systemic discrimination against

disadvantaged groups which effectively undermines their full and equal social,

economic, political and cultural participation in society.”106 To move away from a

formalistic notion of equality which disregards social realities, the Court must take

into account the impact of the rule or provision in the lives of citizens.

The primary enquiry to be undertaken by the Court towards the realisation of

substantive equality is to determine whether the provision contributes to the

subordination of a disadvantaged group of individuals.107 The disadvantage must

be addressed not by treating a woman as ‘weak’ but by construing her

entitlement to an equal citizenship. The former legitimizes patronising attitudes

towards women. The latter links true equality to the realisation of dignity. The

focus of such an approach is not simply on equal treatment under the law, but

106
Kathy Lahey, Feminist Theories of (In)equality, in Equality and Judicial Nuetrality (S.Martin and K.Mahoney (eds.)
(1987)
107 Ratna Kapur On Woman, Equality and the Constitution: Through the Looking Glass of Feminism in Gender and

Politics in India (Nivedita Menon ed.) (1993)

48
 PART E

rather on the real impact of the legislation.108 Thus, Section 497 has to be

examined in the light of existing social structures which enforce the position of a

woman as an unequal participant in a marriage.

Catherine Mackinnon implores us to look more critically at the reality of this

family sphere, termed ‘‘personal,’’ and view the family as a “crucible of women’s

unequal status and subordinate treatment sexually, physically, economically, and

civilly.”109 In a social order which has enforced patriarchal notions of sexuality

upon women and which treats them as subordinate to their spouses in

heterosexual marriages, Section 497 perpetuates an already existing inequality.

39 Facially, the law may be construed to operate as an exemption from

criminal sanctions. However, when viewed in the context of a social structure

which considers the husband as the owner of the wife’s sexuality, the law

perpetuates a deeply entrenched patriarchal order. The true realisation of the

substantive content of equality must entail an overhaul of these social structures.

When all visible and invisible forms of inequality- social, cultural, economic,

political or sexual- are recognised and obliterated; a truly egalitarian existence

can be imagined.

108 Maureen Maloney, An Analysis of Direct Taxes in India: A Feminist Perspective, Journal of the Indian Law Institute
(1988)
109 Catherine A Mackinnon, Sex equality under the Constitution of India: Problems, prospects, and ‘personal laws’,

Oxford University Press and New York University School of Law (2006)

49
 PART F

F ‘The Good Wife’

Article 15 of the Constitution reads thus:

“15. (1) The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any
of them.”
(Emphasis supplied)

40 Article 15 prohibits the State from discriminating on grounds only of sex.

The Petitioners contend that (i) Section 497, in so far as it places a husband and

wife on a different footing in a marriage perpetuates sex discrimination; (ii)

Section 497 is based on the patriarchal conception of the woman as property,

entrenches gender stereotypes, and is consequently hit by Article 15.

From a joint reading of Section 497 of the Indian Penal Code and Section 198(2)

of the Code of Criminal Procedure, the following propositions emerge:

i. Sexual relations by a married woman with another man outside her

marriage without the consent of her husband is criminalized;

ii. In an ‘adulterous relationship’, the man is punished for adultery, while the

woman is not (even as an abettor);

iii. Sexual relations by a married man with an unmarried woman are not

criminalized;

iv. Section 497 accords primacy to the consent of the husband to determine

whether criminality is attached to the man who has consensual sexual

50
 PART F

relations with the spouse of the former. Consent or willingness of the

woman is irrelevant to the offence;

v. A man who has sexual relations with the spouse of another man is relieved

of the offence only if her spouse has consented or, even connived; and

vi. Section 497, IPC, read with Section 198, Cr.PC, gives the man the sole

right to lodge a complaint and precludes a woman from initiating criminal

proceedings.

41 The operation of Section 497, by definition, is confined to the sexual

relations of a woman outside her marriage. A man who has sexual intercourse

with a married woman without the consent or connivance of her husband, is

liable to be prosecuted under the Section. However, a married man may engage

in sexual relations outside marriage with a single woman without any

repercussion in criminal law. Though granted immunity from prosecution, a

woman is forced to consider the prospect of the penal action that will attach upon

the individual with whom she engages in a sexual act. To ensure the fidelity of

his spouse, the man is given the power to invoke the criminal sanction of the

State. In effect, her spouse is empowered to curtail her sexual agency. The

consent of the husband serves as the key to the exercise of the sexual agency of

his spouse. That the married woman is in a consensual relationship, is of no

consequence to the possible prosecution.

51
 PART F

A married man may engage in sexual relations with an unmarried woman who is

not his wife without the fear of opening his partner to prosecution and without the

consent of his spouse. No recourse is provided to a woman against her husband

who engages in sexual relations outside marriage. The effect of Section 497 is to

allow the sexual agency of a married woman to be wholly dependent on the

consent or connivance of her husband. Though Section 497 does not punish a

woman engaging in adultery as an abettor, a married man and a married woman

are placed on different pedestals in respect to their actions. The effect of Section

497, despite granting immunity from prosecution to the married woman, is to

attach a notion of wrongdoing to the exercise of her sexual agency. Despite

exempting her from prosecution, the exercise of her sexual agency is contingent

on the consent or connivance of the husband. A husband is considered an

aggrieved party by the law if his wife engages in sexual intercourse with another

man, but the wife is not, if her husband does the same. Viewed from this angle,

Section 497 discriminates between a married man and a married woman to her

detriment on the ground of sex. This kind of discrimination is prohibited by the

non-discrimination guarantee in Article 15 of the Constitution. Section 497 also

places a woman within marriage and the man with whom she shares a sexual

relationship outside marriage on a different footing.

42 Section 497 criminalizes the conduct of the man who has sexual

intercourse with the wife of another without his consent. It exempts women from

criminal liability. Underlying this exemption is the notion that women, being

52
 PART F

denuded of sexual agency, should be afforded the ‘protection’ of the law. In

criminalizing the accused who engages in the sexual relationship, the law

perpetuates a gender stereotype that men, possessing sexual agency are the

seducers, and that women, as passive beings devoid of sexual agency, are the

seduced. The notion that a woman is ‘submissive’, or worse still ‘naïve’ has no

legitimacy in the discourse of a liberal constitution. It is deeply offensive to

equality and destructive of the dignity of the woman. On this stereotype, Section

497 criminalizes only the accused man.

43 Pertinent to the present enquiry, is that the provision allows only the

husband to initiate a prosecution for adultery. The consent or connivance of the

husband precludes prosecution. If a husband consents, his spouse is effectively

granted permission to exercise her sexual agency with another individual. This

guarantees a degree of control to the husband over the sexual agency of his

spouse. As a relic of Victorian morality, this control over the sexual agency of the

spouse, views the wife as the property of the husband. Fidelity of the woman,

and the husband’s control over it, is seen as maintaining the ‘property’ interest of

a husband in his wife.110 In this view, a woman is confounded with things that can

be possessed. In construing the spouse as a passive or inanimate object, the law

on adultery seeks to punish a person who attempts theft on the property of the

husband. Coontz and Henderson write that the stabilization of property rights and

110Phyllis Coleman, Who’s Been Sleeping in My Bed? You and Me, and the State Makes Three, Vol. 24, Indian Law
Review (1991)

53
 PART F

the desire to pass on one’s property to legitimate heirs, were what motivated men

to restrict the sexual behavior of their wives.111

44 Underlying Section 497 is a gender stereotype that the infidelity of men is

normal, but that of a woman is impermissible. In condemning the sexual agency

of the woman, only the husband, as the ‘aggrieved’ party is given the right to

initiate prosecution. The proceedings once initiated, would be geared against the

person who committed an act of ‘theft’ or ‘trespass’ upon his spouse. Sexual

relations by a man with another man’s wife is therefore considered as theft of the

husband’s property. Ensuring a man’s control over the sexuality of his wife was

the true purpose of Section 497.

Implicit in seeking to privilege the fidelity of women in a marriage, is the

assumption that a woman contracts away her sexual agency when entering a

marriage. That a woman, by marriage, consents in advance to sexual relations

with her husband or to refrain from sexual relations outside marriage without the

permission of her husband is offensive to liberty and dignity. Such a notion has

no place in the constitutional order. Sexual autonomy constitutes an inviolable

core of the dignity of every individual. At the heart of the constitutional rights

guaranteed to every individual is a primacy of choice and the freedom to

determine one’s actions. Curtailing the sexual autonomy of a woman or

111 Women’s Work, Men’s Property: The Origins of Gender and Class (S Coontz and P Henderson eds.) (1986)

54
 PART F

presuming the lack of consent once she enters a marriage is antithetical to

constitutional values.

45 A provision of law must not be viewed as operating in isolation from the

social, political, historical and cultural contexts in which it operates. In its

operation, law “permeates and is inseparable from everyday living and knowing,

and it plays an important role in shaping (legal) consciousness.”112 A contextual

reading of the law shows that it influences social practices, and makes

“asymmetries of power seem, if not invisible, natural and benign”. 113 Section 497

has a significant social impact on the sexual agency of women. It builds on

existing gender stereotypes and bias and further perpetuates them. Cultural

stereotypes are more forgiving of a man engaging in sexual relations than a

woman. Women then are expected to be chaste before and faithful during

marriage. In restricting the sexual agency of women, Section 497 gives legal

recognition to socially discriminatory and gender-based norms. Sexual relations

for a woman were legally and socially permissible when it was within her

marriage. Women who committed adultery or non-marital sex were labeled

immoral, shameful, and were criminally condemned.

112
Rosemary Coombe, Is There a Cultural Studies of Law?, in A Companion to Cultural Studies, Toby Miller (ed.),
Oxford, (2001)
113 Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of

Legal Scholarship, Yale Journal of Law & the Humanities, (2001), at page 19

55
 PART F

In Anuj Garg v Hotel Association of India,114 this Court struck down Section 30

of the Punjab Excise Act, 1914 which prohibited the employment of women in

premises where liquor or other intoxicating drugs were consumed by the public.

Holding that the law suffered from “incurable fixations of stereotype morality and

conception of sexual role”, the Court took into account “traditional cultural norms

as also the state of general ambience in the society” and held that “no law in its

ultimate effect should end up perpetuating the oppression of women.”

In Navtej, one of us (Chandrachud J.) held thus:

“A discriminatory act will be tested against constitutional

values. A discrimination will not survive constitutional scrutiny
when it is grounded in and perpetuates stereotypes about a
class constituted by the grounds prohibited in Article 15(1). If
any ground of discrimination, whether direct or indirect is
founded on a stereotypical understanding of the role of the
sex, it would not be distinguishable from the discrimination
which is prohibited by Article 15 on the grounds only of sex. If
certain characteristics grounded in stereotypes, are to be
associated with entire classes of people constituted as groups
by any of the grounds prohibited in Article 15(1), that cannot
establish a permissible reason to discriminate. Such a
discrimination will be in violation of the constitutional
guarantee against discrimination in Article 15(1).”

46 Section 497 rests on and perpetuates stereotypes about women and

sexual fidelity. In curtailing the sexual agency of women, it exacts sexual fidelity

from women as the norm. It perpetuates the notion that a woman is passive and

incapable of exercising sexual freedom. In doing so, it offers her ‘protection’ from

prosecution. Section 497 denudes a woman of her sexual autonomy in making its

114 (2008) 3 SCC 1

56
 PART F

free exercise conditional on the consent of her spouse. In doing so, it

perpetuates the notion that a woman consents to a limited autonomy on entering

marriage. The provision is grounded in and has a deep social effect on how

society perceives the sexual agency of women. In reinforcing the patriarchal

structure which demands her controlled sexuality, Section 497 purports to serve

as a provision envisaged for the protection of the sanctity of marriage. In the

context of a constitutional vision characterized by the struggle to break through

the shackles of gender stereotypes and guarantee an equal citizenship, Section

497 entrenches stereotypes and existing structures of discrimination and has no

place in a constitutional order.

F.1 The entrapping cage

47 Section 497 exempts a woman from being punished as an abettor.

Underlying this exemption is the notion that a woman is the victim of being

seduced into a sexual relationship with a person who is not her husband. In

assuming that the woman has no sexual agency, the exemption seeks to be

justified on the ground of being a provision that is beneficial to women and

protected under Article 15(3) of the Constitution. This is contrary to the remedy

which Article 15(3) sought to embody. In Government of A P v P B

Vijayakumar,115 a two judge Bench of this Court dealt with a challenge to sub-

rule (2) of Rule 22-A of the Andhra Pradesh State and Subordinate Service

115 (1995) 4 SCC 520

57
 PART F

Rules, which gave women a preference in the matter of direct recruitment.

Speaking for the Court, Justice Sujata V Manohar held thus:

“7. The insertion of Clause (3) of Article 15 in relation to

women is a recognition of the fact that for centuries, women
of this country have been socially and economically
handicapped. As a result, they are unable to participate in the
socio-economic activities of the nation on a footing of
equality. It is in order to eliminate this socio-economic
backwardness of women and to empower them in a manner
that would bring about effective equality between men and
women that Article 15(3) is placed in Article 15. Its object is to
strengthen and improve the status of women…”116

In Independent Thought v Union of India,117 Justice Madan B Lokur, speaking

for a two judge Bench of this Court, adverted to the drafting history of Article

15(3) and held thus:

“55. The response given by Dr. Ambedkar suggests that he

certainly favoured special provisions for women and children
with a view to integrate them into society and to take them out
of patriarchal control…118
56. What clearly emerges from this discussion is that Article
9(2) of the draft Constitution [now Article 15(3)] was intended
to discriminate in favour of women and children – a form of
affirmative action to their advantage.”119

48 Article 15(3) encapsulates the notion of ‘protective discrimination’. The

constitutional guarantee in Article 15(3) cannot be employed in a manner that

entrenches paternalistic notions of ‘protection’. This latter view of protection only

serves to place women in a cage. Article 15(3) does not exist in isolation. Articles

116
Ibid. at page 525
117 (2017) 10 SCC 800
118 Ibid. at page 837
119 Ibid. at page 837

58
 PART G

14 to 18, being constituents of a single code on equality, supplement each other

and incorporate a non-discrimination principle. Neither Article 15(1), nor Article

15(3) allow discrimination against women. Discrimination which is grounded in

paternalistic and patriarchal notions cannot claim the protection of Article 15(3).

In exempting women from criminal prosecution, Section 497 implies that a

woman has no sexual agency and that she was ‘seduced’ into a sexual

relationship. Given the presumed lack of sexual agency, criminal exemption is

then granted to the woman in order to ‘protect’ her. The ‘protection’ afforded to

women under Section 497 highlights the lack of sexual agency that the section

imputes to a woman. Article 15(3) when read with the other Articles in Part III,

serves as a powerful remedy to remedy the discrimination and prejudice faced by

women for centuries. Article 15(3) as an enabling provision is intended to bring

out substantive equality in the fullest sense. Dignity and autonomy are crucial to

substantive equality. Hence, Article 15(3) does not protect a statutory provision

that entrenches patriarchal notions in the garb of protecting women.

G Denuding identity – women as sexual property

49 Charles Jean Marie wrote in 1911120 about the central forms of adultery as

an offence. The criminalisation of adultery came at a social cost: of disregarding

the agency of a woman as a sentient being.

120 Charles Jean Marie Letorneau, The Evolution of Marriage (2011)

59
 PART G

“In all legislations the married woman is more or less openly

considered as the property of the husband and is very often
confounded, absolutely confounded, with things possessed.
To use her, therefore, without the authority of her owner is
theft…But adultery is not a common theft. An object, an inert
possession, are passive things; their owner may well punish
the thief who has taken them, but him only. In adultery, the
object of larceny, the wife, is a sentient and thinking
being- that is to say, an accomplice in the attempt on her
husband’s property in her own person; moreover he
generally has her in his keeping…”

The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated

the lives of women for centuries. Ostensibly, society has two sets of standards of

morality for judging sexual behaviour.121 One set for its female members and

another for males.122 Society ascribes impossible virtues to a woman and

confines her to a narrow sphere of behaviour by an expectation of conformity.123

Raising a woman to a pedestal is one part of the endeavour. The second part is

all about confining her to a space. The boundaries of that space are defined by

what a woman should or should not be. A society which perceives women as

pure and an embodiment of virtue has no qualms of subjecting them to virulent

attack: to rape, honour killings, sex-determination and infanticide. As an

embodiment of virtue, society expects the women to be a mute spectator to and

even accepting of egregious discrimination within the home. This is part of the

process of raising women to a pedestal conditioned by male notions of what is

right and what is wrong for a woman. The notion that women, who are equally

entitled to the protections of the Constitution as their male counterparts, may be

121
Nandita Haksar, Dominance, Suppression and the Law in Women and the Law: Contemporary Problems (Lotika
Sarkar and B. Sivaramayya eds.), Vikas Publishing House (1994)
122 Ibid
123 Ibid

60
 PART G

treated as objects capable of being possessed, is an exercise of subjugation and

inflicting indignity. Anachronistic conceptions of ‘chastity’ and ‘honour’ have

dictated the social and cultural lives of women, depriving them of the guarantees

of dignity and privacy, contained in the Constitution.

50 The right to privacy depends on the exercise of autonomy and agency by

individuals. In situations where citizens are disabled from exercising these

essential attributes, Courts must step in to ensure that dignity is realised in the

fullest sense. Familial structures cannot be regarded as private spaces where

constitutional rights are violated. To grant immunity in situations when rights of

individuals are in siege, is to obstruct the unfolding vision of the Constitution.

The opinion delivered on behalf of four judges in K S Puttaswamy v Union of

India124 has recognised the dangers of the “use of privacy as a veneer for

patriarchal domination and abuse of women.” On the delicate balance between

the competing interests of protecting privacy as well dignity of women in the

domestic sphere, the Court held:

“The challenge in this area is to enable the state to take the

violation of the dignity of women in the domestic sphere
seriously while at the same time protecting the privacy
entitlements of women grounded in the identity of gender and
liberty.”

124 (2017) 10 SCC 1

61
 PART G

51 In “Seeing like a Feminist”, Nivedita Menon has recognized the patriarchal

family as the “basis for the secondary status of women in society.”125 Menon

notes that ‘the personal is political’.126 Her scholarly work implores us to

recognise spaces which may be considered personal such as the bedroom and

kitchen. These spaces are immersed in power relations, but with ramifications for

the public sphere.127

Control over women’s sexuality is the key patriarchal assumption that underlies

family and marriage.128 When it shifts to the ‘public’ as opposed to the ‘private’,

the misogyny becomes even more pronounced.129 Section 497 embodies this. By

the operation of the provision, women’s sexuality is sought to be controlled in a

number of ways. First, the husband and he alone is enabled to prosecute the

man with whom his wife has sexual relations. Even in cases where the

relationship is based on the consent of the woman, the law treats it as an

offence, denying a woman who has voluntarily entered into a consensual

relationship of her sexual agency. Second, such a relationship would be beyond

the reach of penal law if her husband consents to it. The second condition is a

telling reflection of the patriarchal assumption underlying the criminal provision:

that the husband is the owner of the wife’s sexual agency.

125 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35
126
Ibid.
127 Ibid.
128 Ibid.
129 Ibid.

62
 PART G

52 In remedying injustices, the Court cannot shy away from delving into the

‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to

intervene when structures of injustice and persecution deeply entrenched in

patriarchy are destructive of constitutional freedom. But, in adjudicating on the

rights of women, the Court is not taking on a paternalistic role and “granting”

rights. The Court is merely interpreting the text of the Constitution to re-state

what is already set in ink- women are equal citizens of this nation, entitled to the

protections of the Constitution. Any legislation which results in the denial of these

Constitutional guarantees to women, cannot pass the test of constitutionality.

Patriarchy and paternalism are the underpinnings of Section 497. It needs no

iteration that misogyny and patriarchal notions of sexual control find no place in a

constitutional order which has recognised dignity as intrinsic to a person,

autonomy being an essential component of this right. The operation of Section

497 denotes that ‘adulterous women’ virtually exercise no agency; or at least not

enough agency to make them criminally liable.130 They are constructed as

victims. As victims, they are to be protected by being exempt from sanctions of a

criminal nature.131 Not only is there a denial of sexual agency, women are also

not seen to be harmed by the offence.132 Thus, the provision is not simply about

protecting the sanctity of the marital relationship. It is all about protecting a

husband’s interest in his “exclusive access to his wife’s sexuality”.133

130 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications
(1996) at page 119
131 Ibid.
132 Ibid.
133 Ibid. at page 120

63
 PART G

53 Section 497 chains the woman to antediluvian notions of sexuality. Chief

Justice Dipak Misra in Navtej emphasised the importance of sexual autonomy as

a facet of individual liberty, thus protected under Article 21 of the Constitution:

“The sexual autonomy of an individual to choose his/her

sexual partner is an important pillar and an insegregable facet
of individual liberty. When the liberty of even a single person
of the society is smothered under some vague and archival
stipulation that it is against the order of nature or under the
perception that the majority population is peeved when such
an individual exercises his/her liberty despite the fact that the
exercise of such liberty is within the confines of his/her private
space, then the signature of life melts and living becomes a
bare subsistence and resultantly, the fundamental right of
liberty of such an individual is abridged.”

In Navtej, one of us (Chandrachud J.) held that the recognition of the autonomy

of an individual is an acknowledgement of the State’s respect for the capacity of

the individual to make individual choices:

“The right to privacy enables an individual to exercise his or

her autonomy, away from the glare of societal expectations.
The realisation of the human personality is dependent on the
autonomy of an individual. In a liberal democracy, recognition
of the individual as an autonomous person is an
acknowledgment of the State’s respect for the capacity of the
individual to make independent choices. The right to privacy
may be construed to signify that not only are certain acts no
longer immoral, but that there also exists an affirmative moral
right to do them.”

To characterise a woman as a passive object, denuded of agency, is a denial of

autonomy. The same judgment in Navtej has recognized sexual choices as an

essential attribute of autonomy, intimately connected to the self-respect of the

individual:

64
 PART G

“In order to understand how sexual choices are an essential

attribute of autonomy, it is useful to refer to John Rawls’
theory on social contract. Rawls’ conception of the ‘Original
Position’ serves as a constructive model to illustrate the
notion of choice behind a “partial veil of ignorance.” Persons
behind the veil are assumed to be rational and mutually
disinterested individuals, unaware of their positions in society.
The strategy employed by Rawls is to focus on a category of
goods which an individual would desire irrespective of what
individuals’ conception of ‘good’ might be. These neutrally
desirable goods are described by Rawls as ‘primary social
goods’ and may be listed as rights, liberties, powers,
opportunities, income, wealth, and the constituents of self-
respect. Rawls's conception of self-respect, as a primary
human good, is intimately connected to the idea of
autonomy. Self-respect is founded on an individual's
ability to exercise her native capacities in a competent
manner.”
(Emphasis supplied)

G.1 Exacting fidelity: the intimacies of marriage

54 Marriage as a social institution has undergone changes. Propelled by

access to education and by economic and social progress, women have found

greater freedom to assert their choices and preferences. The law must also

reflect their status as equals in a marriage, entitled to the constitutional

guarantees of privacy and dignity. The opinion delivered on behalf of four judges

in Puttaswamy held thus:

“130…As society evolves, so must constitutional doctrine.

The institutions which the Constitution has created must
adapt flexibly to meet the challenges in a rapidly growing
knowledge economy. Above all, constitutional interpretation is
but a process in achieving justice, liberty and dignity to every
citizen.”134

134 Ibid. at page 414

65
 PART G

In Navtej, Justice Rohinton Nariman countered the assertion that the Court must

“not indulge in taking upon itself the guardianship of changing societal mores” by

holding thus:

“…The very purpose of the fundamental rights chapter in the

Constitution of India is to withdraw the subject of liberty and
dignity of the individual and place such subject beyond the
reach of majoritarian governments so that constitutional
morality can be applied by this Court to give effect to the
rights, among others, of ‘discrete and insular’ minorities.One
such minority has knocked on the doors of this Court as this
Court is the custodian of the fundamental rights of citizens.
These fundamental rights do not depend upon the
outcome of elections. And, it is not left to majoritarian
governments to prescribe what shall be orthodox in
matters concerning social morality. The fundamental
rights chapter is like the north star in the universe of
constitutionalism in India. Constitutional morality always
trumps any imposition of a particular view of social
morality by shifting and different majoritarian regimes.”
(Emphasis supplied)

55 Section 497 seeks the preservation of a construct of marriage in which

female fidelity is enforced by the letter of the law and by the coercive authority of

the state. Such a conception goes against the spirit of the rights-based

jurisprudence of this Court, which seeks to protect the dignity of an individual and

her “intimate personal choices”. It cannot be held that these rights cease to exist

once the woman enters into a marriage.

56 The identity of the woman must be as an ‘individual in her own right’. In

that sense, her identity does not get submerged as a result of her marriage.

Section 497 lays down the norm that the identity of a married woman is but as

the wife of her spouse. Underlying the norm is a notion of control over and

subjugation of the woman. Such notions cannot withstand scrutiny under a liberal
66
 PART G

constitution. Chief Justice Dipak Misra in Navtej has drawn on the

interrelationship between ‘identity’ and ‘autonomy’:

“…Autonomy is individualistic. Under the autonomy principle,

the individual has sovereignty over his/her body. He/she can
surrender his/her autonomy wilfully to another individual and
their intimacy in privacy is a matter of their choice. Such
concept of identity is not only sacred but is also in recognition
of the quintessential facet of humanity in a person‘s nature.
The autonomy establishes identity and the said identity, in the
ultimate eventuate, becomes a part of dignity in an individual.
This dignity is special to the man/woman who has a right to
enjoy his/her life as per the constitutional norms and should
not be allowed to wither and perish like a mushroom. It is a
directional shift from conceptual macrocosm to cognizable
microcosm. When such culture grows, there is an affirmative
move towards a more inclusive and egalitarian society.”

This Court in Puttaswamy has elucidated that privacy is the entitlement of every

individual, with no distinction to be made on the basis of the individual’s position

in society.

“271.Every individual in society irrespective of social class or

economic status is entitled to the intimacy and autonomy
which privacy protects. It is privacy as an intrinsic and core
feature of life and personal liberty which enables an individual
to stand up against a programme of forced sterilization. Then
again, it is privacy which is a powerful guarantee if the State
were to introduce compulsory drug trials of non-consenting
men or women. The sanctity of marriage, the liberty of
procreation, the choice of a family life and the dignity of being
are matters which concern every individual irrespective of
social strata or economic well being. The pursuit of happiness
is founded upon autonomy and dignity. Both are essential
attributes of privacy which makes no distinction between the
birth marks of individuals.”135

57 It would be useful to refer to decisions of this Court which have

emphasised on the freedoms of individuals with respect to choices in

relationships. In Navtej, Chief Justice Misra highlighted the indignity suffered by

135 Ibid. at page 484

67
 PART G

an individual when “acts within their personal sphere” are criminalised on the

basis of regressive social attitudes:

“An individual's choice to engage in certain acts within their

private sphere has been restricted by criminalising the same
on account of the age old social perception. To harness such
an essential decision, which defines the individualism of a
person, by tainting it with criminality would violate the
individual's right to dignity by reducing it to mere letters
without any spirit.”

The Chief Justice observed that the “organisation of intimate relations” between

“consenting adults” is a matter of complete personal choice and characterised

the “private protective sphere and realm of individual choice and autonomy” as a

personal right:

“It is true that the principle of choice can never be absolute

under a liberal Constitution and the law restricts one
individual‘s choice to prevent harm or injury to others.
However, the organisation of intimate relations is a
matter of complete personal choice especially between
consenting adults. It is a vital personal right falling within
the private protective sphere and realm of individual
choice and autonomy. Such progressive proclivity is
rooted in the constitutional structure and is an
inextricable part of human nature.”
(Emphasis supplied)

In Shakti Vahini, this Court has recognised the right to choose a partner as a

fundamental right under Articles 19 and 21 of the Constitution. In Shafin Jahan,

“intimate personal choices” were held to be a protected sphere, with one of us

(Chandrachud J) stating:

“88.The choice of a partner whether within or outside

marriage lies within the exclusive domain of each individual.

68
 PART G

Intimacies of marriage lie within a core zone of privacy, which

is inviolable.”

58 In Navtej, one of us (Chandrachud J) held that the right to sexual privacy

is a natural right, fundamental to liberty and a soulmate of dignity. The application

of Section 497 is a blatant violation of these enunciated rights. Will a trial to prove

adultery lead the wife to tender proof of her fidelity? In Navtej, the principle was

elucidated thus:

“In protecting consensual intimacies, the Constitution adopts

a simple principle: the state has no business to intrude into
these personal matters.”

In so far as two individuals engage in acts based on consent, the law cannot

intervene. Any intrusion in this private sphere would amount to deprivation of

autonomy and sexual agency, which every individual is imbued with.

In Puttaswamy, it was recognised that a life of dignity entails that the “inner

recesses of the human personality” be secured from “unwanted intrusion”:

“127.The right to privacy is an element of human dignity. The

sanctity of privacy lies in its functional relationship with
dignity. Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human
personality from unwanted intrusion. Privacy recognises the
autonomy of the individual and the right of every person to
make essential choices which affect the course of life. In
doing so privacy recognises that living a life of dignity is
essential for a human being to fulfil the liberties and freedoms
which are the cornerstone of the Constitution.”136

136 Ibid. at page 413

69
 PART G

59 In criminalizing adultery, the legislature has imposed its imprimatur on the

control by a man over the sexuality of his spouse. In doing that, the statutory

provision fails to meet the touchstone of Article 21. Section 497 deprives a

woman of her autonomy, dignity and privacy. It compounds the encroachment on

her right to life and personal liberty by adopting a notion of marriage which

subverts true equality. Equality is subverted by lending the sanctions of the penal

law to a gender biased approach to the relationship of a man and a woman. The

statute confounds paternalism as an instrument for protecting marital stability. It

defines the sanctity of marriage in terms of a hierarchical ordering which is

skewed against the woman. The law gives unequal voices to partners in a

relationship.

This judgment has dwelt on the importance of sexual autonomy as a value which

is integral to life and personal liberty under Article 21. Individuals in a

relationship, whether within or outside marriage, have a legitimate expectation

that each will provide to the other the same element of companionship and

respect for choices. Respect for sexual autonomy, it must be emphasized is

founded on the equality between spouses and partners and the recognition by

each of them of the dignity of the other. Control over sexuality attaches to the

human element in each individual. Marriage – whether it be a sacrament or

contract – does not result in ceding of the autonomy of one spouse to another.

70
 PART G

60 Recognition of sexual autonomy as inhering in each individual and of the

elements of privacy and dignity have a bearing on the role of the state in

regulating the conditions and consequences of marital relationships. There is a

fundamental reason which militates against criminalization of adultery. Its

genesis lies in the fact that criminalizing an act is not a valid constitutional

response to a sexual relationship outside the fold of marriage. Adultery in the

course of a subsisting marital relationship may, and very often does question the

commitment of the spouse to the relationship. In many cases, a sexual

relationship of one of the spouses outside of the marriage may lead to the end of

the marital relationship. But in other cases, such a relationship may not be the

cause but the consequence of a pre-existing disruption of the marital tie. All too

often, spouses who have drifted apart irrevocably may be compelled for reasons

personal to them to continue with the veneer of a marriage which has ended for

all intents and purposes. The interminably long delay of the law in the resolution

of matrimonial conflicts is an aspect which cannot be ignored. The realities of

human existence are too complex to place them in closed categories of right and

wrong and to subject all that is considered wrong with the sanctions of penal law.

Just as all conduct which is not criminal may not necessarily be ethically just, all

conduct which is inappropriate does not justify being elevated to a criminal

wrongdoing.

61 The state undoubtedly has a legitimate interest in regulating many aspects

of marriage. That is the foundation on which the state does regulate rights,

71
 PART G

entitlements and duties, primarily bearing on its civil nature. Breach by one of the

spouses of a legal norm may constitute a ground for dissolution or annulment.

When the state enacts and enforces such legislation, it does so on the postulate

that marriage as a social institution has a significant bearing on the social fabric.

But in doing so, the state is equally governed by the norms of a liberal

Constitution which emphasise dignity, equality and liberty as its cardinal values.

The legitimate aims of the state may, it must be recognized, extend to imposing

penal sanctions for certain acts within the framework of marriage. Physical and

emotional abuse and domestic violence are illustrations of the need for legislative

intervention. The Indian state has legitimately intervened in other situations such

as by enacting anti dowry legislation or by creating offences dealing with the

harassment of women for dowry within a marital relationship. The reason why

this constitutes a legitimate recourse to the sovereign authority of the state to

criminalize conduct is because the acts which the state proscribes are

deleterious to human dignity. In criminalizing certain types of wrongdoing against

women, the state intervenes to protect the fundamental rights of every woman to

live with dignity. Consequently, it is important to underscore that this judgment

does not question the authority and even the duty of the state to protect the

fundamental rights of women from being trampled upon in unequal societal

structures. Adultery as an offence does not fit that paradigm. In criminalizing

certain acts, Section 497 has proceeded on a hypothesis which is deeply

offensive to the dignity of women. It is grounded in paternalism, solicitous of

patriarchal values and subjugates the woman to a position where the law

72
 PART H

disregards her sexuality. The sexuality of a woman is part of her inviolable core.

Neither the state nor the institution of marriage can disparage it. By reducing the

woman to the status of a victim and ignoring her needs, the provision penalizing

adultery disregards something which is basic to human identity. Sexuality is a

definitive expression of identity. Autonomy over one’s sexuality has been central

to human urges down through the ages. It has a constitutional foundation as

intrinsic to autonomy. It is in this view of the matter that we have concluded that

Section 497 is violative of the fundamental rights to equality and liberty as

indeed, the right to pursue a meaningful life within the fold of Articles 14 and 21.

62 The hallmark of a truly transformative Constitution is that it promotes and

engenders societal change. To consider a free citizen as the property of another

is an anathema to the ideal of dignity. Section 497 denies the individual identity

of a married woman, based on age-old societal stereotypes which characterised

women as the property of their spouse. It is the duty of this Court to break these

stereotypes and promote a society which regards women as equal citizens in all

spheres of life- irrespective of whether these spheres may be regarded as ‘public’

or ‘private’.

H Towards transformative justice

63 Constitutional values infuse the letter of the law with meaning. True to its

transformative vision, the text of the Constitution has, time and again, been

interpreted to challenge hegemonic structures of power and secure the values of

73
 PART H

dignity and equality for its citizens. One of the most significant of the battles for

equal citizenship in the country has been fought by women. Feminists have

overcome seemingly insurmountable barriers to ensure a more egalitarian

existence for future generations. However, the quest for equality continues.

While there has been a considerable degree of reform in the formal legal system,

there is an aspect of women’s lives where their subordination has historically

been considered beyond reproach or remedy. That aspect is the family. Marriage

is a significant social institution where this subordination is pronounced, with

entrenched structures of patriarchy and romantic paternalism shackling women

into a less than equal existence.

64 The law on adultery, conceived in Victorian morality, considers a married

woman the possession of her husband: a passive entity, bereft of agency to

determine her course of life. The provision seeks to only redress perceived harm

caused to the husband. This notion is grounded in stereotypes about permissible

actions in a marriage and the passivity of women. Fidelity is only expected of the

female spouse. This anachronistic conception of both, a woman who has entered

into marriage as well as the institution of marriage itself, is antithetical to

constitutional values of equality, dignity and autonomy.

In enforcing the fundamental right to equality, this Court has evolved a test of

manifest arbitrariness to be employed as a check against state action or

legislation which has elements of caprice, irrationality or lacks an adequate

74
 PART H

determining principle. The principle on which Section 497 rests is the

preservation of the sexual exclusivity of a married woman – for the benefit of her

husband, the owner of her sexuality. Significantly, the criminal provision exempts

from sanction if the sexual act was with the consent and connivance of the

husband. The patriarchal underpinnings of Section 497 render the provision

manifestly arbitrary.

65 The constitutional guarantee of equality rings hollow when eviscerated of

its substantive content. To construe Section 497 in a vacuum (as did Sowmithri

Vishnu) or in formalistic terms (as did Revathi) is a refusal to recognise and

address the subjugation that women have suffered as a consequence of the

patriarchal order. Section 497 is a denial of substantive equality in that it re-

inforces the notion that women are unequal participants in a marriage; incapable

of freely consenting to a sexual act in a legal order which regards them as the

sexual property of their spouse.

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

75
 PART H

progeny and property, women were chained within the fetters

of fidelity.”137

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;

137Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting Archana Verma, Stree
Vimarsh Ke Mahotsav (2010)

76
 PART H

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.

The decisions in Sowmithri Vishnu and Revathi are overruled.

…..…..….............................................J
[Dr Dhananjaya Y Chandrachud]

New Delhi;
September 27, 2018.

77