Section 497 Was Never Intended To Preserve ‘Sanctity Of Marriage’; It Demeans Or Degrades The Status Of A Woman By Likening Her To A Chattel: Justice RF Nariman [Read Judgment]

“What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today‘s day and age, utterly irrational.”Justice Rohinton Fali Nariman, in his concurring judgment in Joseph Shine vs. Union of India, has declared that Section 497 of the Indian Penal Code, 1860 and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of the Constitution of India.Justice Nariman observed that marital stability is not the object for which this provision penalising adultery was enacted. He rejected the Central government’s argument that it is intended to protect and preserve the sanctity of marriage. He has further held that Section 497 is all about proprietary interest of a married man in his wife; and it demeans or degrades the status of a woman by likening her to a chattel.It’s About Proprietary Interest Of Married Man In His WifeJustice Nariman starts his judgment by making a distinction between offences of adultery and bigamy (Section 494.) He takes note that the offence of bigamy is punishable with a longer jail term than adultery.“It will be noticed that the crime of adultery punishes only a third-party male offender as against the crime of bigamy, which punishes the bigamist, be it a man or a woman. What is therefore punished as “adultery” is not “adultery” per se but the proprietary interest of a married man in his wife,” he observed.Most Religions Punished Adultery, It is Not A Crime In Many Nations Taking note of instances from texts of Judaism, Christianity, Islam and Hinduism Justice Nariman observes that almost all ancient religions/civilizations punished the sin of adultery.Justice Nariman also reproduces a passage from a judgment delivered by the Supreme Court of Namibia on the issue whether the criminal offence of adultery would protect marriages and reduce the incidence of adultery. He also observed that only a very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws. “The People’s Republic of China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, Seychelles etc. are some of the jurisdictions in which it has been done away with. In South Korea and Guatemala, provisions similar to Section 497 have been struck down by the constitutional courts of those nations.”He also notes that it continues to be a criminal offence in Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, the United Arab Emirates, some states of the United States of America, Algeria, Democratic Republic of Congo, Egypt, Morocco, and some parts of Nigeria.Yusuf Abdul Aziz v. State of Bombay Judgment—an instance of ‘Homer nodding’In this judgment, the Supreme Court through Justice Vivian Bose had held that the last part of Section 497, which states that the wife shall not be punishable as an abettor of the offence of adultery, does not offend Articles 14 and 15 in view of the saving provision contained in Article 15(3), being a special provision made in favour of women.Justice Nariman terms this logic is an instance of ‘Homer nodding’. He disagrees with the application of Article 15(3), (nothing in this article shall prevent the State from making a special provision for women, to Section 497 IPC, which is an ‘existing law’).“Existing law” as being separate from “the State making any law”He observes: “Section 497 is, in constitutional language, an “existing law” which continues, by virtue of Article 372(1), to apply, and could not, therefore, be said to be a law made by the “State” meaning any of the entities referred to above.”In Yusuf Abdul Aziz, Justice Nariman observes that the difference in language between Article 15(3) and Article 19(2)-(6) was not noticed. “Article 19(2) -(6) clearly refers to “existing law” as being separate from “the State making any law”, indicating that the State making any law would be laws made after the Constitution comes into force as opposed to “existing law” which are pre-constitutional laws enacted before the Constitution came into force, as is clear from the definition of “existing law” contained in Article 366(10)…Article 15(3) refers to the State making laws which therefore, obviously cannot include existing law. Article 15(3) is in this respect similar to Article 16(4).”The judge also observes that the ratio in Yusuf Abdul Aziz does not extend to upholding the entirety of the provision or referring to any of the arguments made before us for striking down the provision as a whole.Chief Justice Chagla’s foresightJustice Nariman also takes note of judgment (impugned judgment in Yusuf Abdul Aziz) rendered by the then Bombay High Court...

Section 497 Was Never Intended To Preserve ‘Sanctity Of Marriage’; It Demeans Or Degrades The Status Of A Woman By Likening Her To A Chattel: Justice RF Nariman [Read Judgment]

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