A five-judge Constitution bench was unanimous in holding Section 497 of the Indian Penal Code, dealing with the offence of adultery, as unconstitutional and struck down the penal provision
The CJI and Justice Khanwilkar said: “We declare Section 497 IPC and Section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional”.
Our Correspondent / New Delhi
The Supreme Court today struck down penal provision making adultery a criminal Offence. The court’s five-judge bench headed by Chief Justice Dipak Misra declared the section 497 of the IPC as unconstitutional and arbitrary.
The Apex court said that Adultery can be a civil wrong and a ground for divorce but it cannot be a criminal offence.Section 497 of the Indian Penal Code says that “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.”
Justice Indu Malhotra said Section 497 is clear violation of fundamental rights granted in Constitution.Justice Chandrachud said Section 497 offends sexual freedom of women.He said Autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices.He added that Section 497 destroys and deprives women of dignity.
The court said Section 497 is violation of right to equality and right to equal opportunity to women.The 5 judge bench unanimously held Section 497 unconstitutional saying adultery is manifestly arbitrary .
Justice Nariman termed Section 497 as archaic law and concurred with the CJI and Justice Khanwilkar, saying that the penal provision is violative of the rights to equality and equal opportunity to women.
Justice Chandrachud said Section 497 destroys and deprives women of dignity.
Justice Indu Malhotra, the lone woman judge on the bench, said that Section 497 is clear violation of fundamental rights granted in the Constitution and there is no justification for continuation of the provision.
CJI, who wrote the judgement for himself and Justice Khanwilkar, said adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia.
Adultery might not be cause of unhappy marriage, it could be result of an unhappy marriage, the CJI said.
The CJI said unequal treatment of women invites the wrath of the Constitution.
The apex court’s five-judge bench headed by Chief Justice Dipak Misra said the beauty of the Constitution is that it includes “the I, me and you”.
Reading out the judgement, the CJI said that equality is the governing parameter of the Constitution.
The court said any provision treating women with inequality is not constitutional and it’s time to say that husband is not the master of woman.
The CJI said section 497 of the IPC is manifestly arbitrary the way it deals with women.
The bench held that adultery can be treated as civil wrong for dissolution of marriage.
There can’t be any social licence which destroys a home, the CJI said, but added that adultery should not be a criminal offence.
The court said adultery can be a ground for civil wrong, a ground for divorce but not a criminal offence.
Justice Chandrachud said autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of past.
Legislature has imposed a condition on sexuality of women by making adultery as offence, he said, adding that section 497 is denial of substance of equality.
He said Section 497 is held to be unconstitutional as adultery is manifestly arbitrary.