In the case of Joseph Shine v. Union of India, a five-judge bench headed by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra unanimously struck down the 150-year-old penal law on adultery.
Pronouncing its verdict on pleas challenging the constitutional validity of the Section 497 of Indian Penal Code, the Supreme Court quashed the law as violative of Articles 14 and 15 of the Constitution. The Court held that the act adultery can be a ground for divorce, but not a criminal offence. The apex court also declared part of Section 198 of the Cr PC which deals with adultery as unconstitutional.
Chief Justice of India Dipak Misra stated in his judgement that “Section 497 is manifestly arbitrary, offends dignity of women”. Section 497 of IPC affects the right to life of a woman under Article 21 of the constitution of India, the court added. Also Justice Chandrachud, in a section of the judgement titled ‘good wife‘ said, in “the most private zone, choice is important and sexuality cannot be dissected from desire. Section 497 deprives women, their choice about sexuality and hence unconstitutional“.
The Judgement also stated that Mere adultery can’t be a criminal offence. It is a matter of privacy. Husband is not the master of the wife. Women should be treated with equality along with men. Adultery dents the individuality of women and it is not a crime in countries like China, Japan and Australia. While mentioning the arbitrariness of section 497, the court stated that Section 497 based on women as chattel, seeks to control the sexuality of a woman, and hits the autonomy and dignity of woman. It perpetuates the subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes. A woman has sexual autonomy within marriage. Marriage does not mean ceding autonomy of one to the other. Ability to make sexual choices is essential to human liberty. Even within private zones, an individual should be allowed her choice.
Previously the law provided that only a man and not a married woman can be punished for the crime of adultery. The law categorized the woman only as a victim and not the abettor of the crime of adultery. It was based on the concept that society has two sets of morality in sexual behaviour — one for women and another for men. It imposes impossible virtues on a woman. It raises her to a pedestal, confines her to spaces, says she should be pure, but has no qualms to rape her, assault her, commit female feticide, discriminate against her within a home. Society treats women as the embodiment of virtue leads to things like honour killings.