There Cannot Be Patriarchal Monarchy Over Daughter Or Husband’s Monarchy Over Wife: CJI Misra In Adultery Judgment [Read Judgment]

The Supreme Court on Thursday struck down as unconstitutional, 158-year-old Section 497 of the Indian Penal Code, which criminalizes adultery.The five-Judge Bench comprising Chief Justice of India Dipak Misra and Justices R F Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra also declared as unconstitutional Section 198 of the Criminal Procedure Code, which deals with the procedure for filing a complaint for the offence of adultery.CJI Misra, writing for himself and Justice AM Khanwilkar, ruled, “We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law.”Besides, the court also overruled the decisions in Sowmithri Vishnu v. Union of India and another and V. Revathi v. Union of India and others, and any other judgment following these precedents.Notably, the CJI, while writing for himself and Justice Khanwilkar, spoke about the changing times and the consequent change in the way women’s rights have evolved since. He wrote, “In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than space in an annexe to the main building……A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written.”Examining the provision in the light of these ideals, he then highlighted the contrast that exists in the societal beliefs existing now and those which are being portrayed through the decades-old provision.“On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted,” he explained.Here is a summary of the opinion authored by CJI Misra:S.497 gives licence to husband to deal with wife as he pleasesThe CJI pointed out that the definition of “person aggrieved” under Section 198 CrPC, which treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. The provision does not consider the wife of the adulterer as an aggrieved person.The definition, it then ruled, was “absolutely and manifestly arbitrary”, opining that it confers a licence on the husband to deal with the wife as he likes. It pointed out that while the provision does not treat a woman as an abettor but protects her, it does not enable the wife to file any criminal prosecution against the husband.Ruling that it, therefore, violates Article 14, the court observed, “Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.”Dent in the individual dignity of womenThe court examined various precedents to elaborate on the concept of gender equality. In the same leaf, speaking about the necessity to pave way for equal dignity to women, it asserted, “…there cannot be a patriarchal monarchy over the daughter or, for that matter, husband‘s monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance.”Examining the impugned provision, the court then opined that the provision effectively creates a dent in the individual dignity of women, and hence violates Article 21 of the Constitution of India. This is especially because the provision exempts women from punishment for adultery, making it a patriarchal baggage which treats women as ‘chattel’ having no agency. The provision also exempts sexual acts with the wife of another man, if they are performed with the consent or connivance of that man—an exemption clearly an...

There Cannot Be Patriarchal Monarchy Over Daughter Or Husband’s Monarchy Over Wife: CJI Misra In Adultery Judgment [Read Judgment]

Apoorva Mandhani

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