History has witnessed the women have always been treated as the second class citizen. In the middle ages the Doctrine of Coverture was developed in England as part of the common law system. According to the doctrine all the legal rights of women after marriage were absorbed by her husband. Somewhat similar view has been adopted by historians in India. Before marriage a woman is considered to be protected by her father and after marriage by her husband. She has no existence of her own, neither physical nor legal.
What is adultery?
The word adultery has originated from a French word “avoutre”, which further has its root in the latin word “adulterium” which means “to corrupt”.
Over time it has been defined in different ways: According to the New International Webster's Comprehensive Dictionary, the concept of women corrupting her marital relationship by engaging in a relationship outside the marriage was termed as adultery.
The word adultery as per the Black Law’s Dictionary is defined as the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife. In English itself, the word 'adultery' has been defined as the: “Violation of the marital band; sexual relations of a married person with one who is not his or her lawful spouse whether unmarried or married to another.”
Historical background of adultery in India
In India roots of adultery goes back to the time when more emphasis was placed on the physical chastity of women and their unquestioned obedience to husbands. Since ancient times it has been believed that male descendants would carry on the names of their families and in order to maintain the purity of the male bloodline, chastity of women has been considered as her prime virtue, while at the same time men were allowed to have more than one wife. The other objective was to ensure that only the husband can retain control over the sexuality of his wife. Therefore, making men as the whole and sole owner of the soul of women.
How adultery is defined in India?
With the advent of colonialism in India, Victorian morals creeped into the Indian legal system. Women were expected to be loyal to their husband whereas men were allowed to have multiple partners. Men could divorce their adulterous wives whereas women could not divorce their adulterous husbands. Women having relations with other men besides their husbands were seen as “ruined” or “fallen”. Thus, further strengthening the patriarchal structure of India. The reflection of the victorian era laws can be seen in Section 497 IPC which defines adultery as:
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 a case the wife shall not be punishable as an abettor.
Therefore, adultery is committed when a man has sexual intercourse with a married woman without the consent of her husband.
In what ways section 497 was anti-woman?
Section 497 of the Indian Penal Code was violative of Article 14 of the Constitution because this provision discriminated against women on the basis of sex only and it unjustifiably denied to women the right which was given to men. According to this section men were considered as the sole author of the women. Even the reason behind not penalizing women as an adulterer was that she was regarded only as chattel and being the property of men she can only be the victim. This is also for the chauvinistic reason that the third-party male had seduced her. This makes article 497 manifestly arbitrary.
Section 497 provided that the husband had the right to prosecute the adulterer but, there was no right conferred upon the wife to prosecute the woman with whom her husband had committed adultery; and also, the wife had no right to prosecute the husband who had committed adultery with another woman. This only showed that it was a crime committed by a man against a man.
Section 497 talked only about the sexual relations with the married woman and it failed to take into account those cases where the husband had sexual relations with an unmarried woman, with the result that husbands have, as it were, a free license under the law to have extra-marital relationship with unmarried women. The underlying basis of not penalising a sexual act by a married man with a single woman was that she (unlike a married woman) was not the property of a man (as the law would treat her to be if she is married). What about the wife of that man ? This provision did not talk about her. She was not regarded by the law as a person whose agency and dignity was affected.
Section 497 spoke of women as the property of man
It stated that a man can have sexual intercourse with the wife of another man, with the Consent of that man.The legislature attributes no agency to the woman. Whether or not a man with whom she had engaged in sexual intercourse was guilty of an offence depends exclusively on whether or not her husband was a consenting individual. No offence existed if her husband were to consent. Even if her husband were to connive at the act, no offence would be made out.The wife of the man who had engaged in the act has no voice or agency under the statute. The consent of the women committing adultery was material only for showing that the offence was not another offence, namely, rape. It showed that women had no individual autonomy, desire and identity. And that there was a husband's control over his wife or that she was subordinate to him.
In K.S. Puttaswamy and another v. Union of India and others, it was laid down that: “Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21)”. To live is to live with dignity.
In Joseph Shrine vs UOI, it was held that: Section 497 IPC, has curtailed the equality of women and has curbed the essential dignity which a woman is entitled to have. It does this by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. It also laid down that it is in violation of article 21.
In the landmark judgement in Joseph Shrine v Union of India, the supreme court struck down the 158 years old law declaring it unconstitutional and discriminatory against women. CJI Dipak Misra in its judgement said :
‘‘The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution…. And, it is time to say that a husband is not the master’’.
He also quoted john stuart mill: “The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other”.
Gender discrimination, male chauvinism are things of past. Laws like adultery which are retrogressive in nature and which encourages patriarchy has no place in a civilized society. Section 497 was arbitrary and illogical in a way that while protecting a woman as an abettor it did not even take into account the interest of the wife of an adulterer. Thus, on one hand it protected women and on the other it gave the authority of the body of women to men. Even the reason behind not treating the woman as an abettor is male chauvinism. But with the passage of time, the courts have recognized the conceptual equality of women and essential dignity which a woman is entitled to have. There can be no curtailment of the same. The constitution which is the supreme law of the land, confers equal rights on both men and women, through Article 14 and Article 15. Equality has to be regarded as the summum bonum of the constitutional principle in this context.