Adultery law ought to have been amended or deleted from statute books: SC

The Supreme Court Thursday struck down the penal law on adultery and said the legislature could have either amended the "retrograde" provision to make it gender-neutral or deleted it from the statute books entirely, as it was "wholly outdated" and had outlived its purpose.

The view was expressed by a five-judge constitution bench of Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, while striking down section 497 of IPC which made adultery a crime punishable with a maximum jail term of five years, fine or both.

CJI Misra, who along with Justice Khanwilkar penned a separate 58-page verdict, said 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," he said.

Justice Nariman, in his separate concurring judgement, said when the Criminal Procedure Code was fully replaced in 1973, section 198, which lays down who would be an aggrieved person in a case of adultery, continued to be on the statute book along with section 497.

"When these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law -- cessante ratione legis, cessat ipsa lex (which means the reason for a law ceasing, the law itself ceases) -- apply to interdict such law, but when such law falls foul of constitutional guarantees, it is this Court's solemn duty not to wait for legislation, but to strike down such law," Justice Nariman said.

Justice Chandrachud, in his separate concurring verdict, noted that the Legislature did not and has not yet accepted the recommendations of the Law Commission and of the Malimath Committee, suggesting a gender-neutral amendment to the law.

The Law Commission in its 156th Report had suggested removing the exemption from liability for women under Section 497 whereas the Justice Malimath Committee report of 2003 had also recommended Section 497 be made gender-neutral by substituting the words of the provision with "whosoever has sexual intercourse with the spouse of any other person is guilty of adultery", the judge noted.

He said that in enacting Section 497, the legislature made an ostensible effort to protect the institution of marriage.

He said the law gave unequal voices to partners in a relationship and in criminalising adultery, the legislature had imposed its imprimatur on the control by a man over the sexuality of his spouse.

"In doing that, the statutory provision fails to meet the touchstone of Article 21," said Justice Chandrachud.

The lone woman judge of the bench, Justice Malhotra, referred to the Sowmithri Vishnu case of 1985, where a three-judge bench of the Supreme Court had concluded that Section 497 could not be struck down on the ground that it would be desirable to delete it from the statute books.

She said the court recognised that this position "may have undergone some change over the years", but it was for the legislature to consider whether Section 497 should have been amended appropriately so as to "take note of the transformation which the society has undergone".

Justice Chandrachud, overruling the judgment given by his late father Justice Y V Chandrachud in the Sowmithri verdict, said the logic of the court, to the effect that extending the ambit of a statutory definition is a matter which requires legislative change, is "unexceptionable".

He said the error in Sowmithri Vishnu lies in holding that there was "no constitutional infringement".

"The power to fashion an amendment to the law lies with the legislature. But this only leads to the conclusion that the court cannot extend the legislative prescription by making the offence gender neutral," said Justice Chandrachud.