Adultery as an offence treats a woman as "chattel" and "dents" her individual dignity as it emphasises that the husband's connivance or consent to her extramarital relationship does not result in a crime, wrote Chief Justice of India Dipak Misra on Thursday.
The judgement on this issue was endorsed by other four members of the Supreme Court's Constitution bench while striking down section 497 of the Indian Penal Code that made adultery an offence.
The CJI, who wrote the judgement for himself and Justice A M Khanwilkar, said the section was "manifestly arbitrary", archaic and violative of the rights to equality and equal opportunity to women and struck it down as unconstitutional.
The Constitution bench, also comprising Justices R F Nariman, D Y Chandrachud and Indu Malhotra, pronounced four sets of concurring verdicts to declare the penal provision on adultery and section 198 of CrPC dealing with prosecution of offences against marriage as unconstitutional.
In a concurring but separate judgement, the CJI and Justice Khanwilkar said that "a husband is not the master" and any system treating a woman with indignity, inequity and inequality or discrimination "invites the wrath of the Constitution".
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"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," it said.
The bench further said it was of the view that there cannot be a "patriarchal monarchy over the daughter" or "husband's monarchy over the wife".
"That apart, there cannot be a community exposition of masculine dominance," it observed while allowing a plea challenging the Constitutional validity of section 497 of IPC, which was punishable by a maximum five years in jail or fine or both.
Section 198 of the Criminal Procedure Code which laid down who would be an aggrieved person in a case of adultery.
The bench said the equality of women and their dignity cannot be curtailed, but section 497 effectively does so by "creating invidious (unfair) distinctions" based on gender stereotypes "which creates a dent in the individual dignity of women".
"Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution," said the two-judge concurring judgement penned by CJI Misra said.
It further said that though "at first blush" the law on adultery may appear as a beneficial legislation which intends to serve the interests of women, on closer examination it would be found that the provision was a "kind of romantic paternalism which stems from the assumption that women, like chattels, are the property of men".
The bench said the provision treats a married woman as subordinate to her husband as it does not bring within its purview any extra-marital relationship a man may have with an unmarried woman or a widow.
It observed that both the offence of adultery and the definition of "aggrieved person" was "absolutely and manifestly arbitrary" and it "confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate".
The bench said it was constrained to think so as the penal provision does not treat a woman as an abettor but protects her and simultaneously, it does not enable the wife to file any criminal prosecution against the husband.
"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," it said and added that "the rationale of the provision suffers from the absence of logicality of approach".
The bench said that while there was no doubt that adultery can be a ground for a civil action, including dissolution of marriage, but treating it as a crime would amount to "the State entering into a real private realm" of matrimonial sphere and therefore, it should be left as a ground of divorce.
"Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime.
"We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce," the bench said.
It said that treating adultery as a crime would offend the two facets of Article 21 of the Constitution -- the dignity of husband and wife and the privacy of their relationship.
The bench said the penal provision expects a couple to remain loyal throughout and this expectation was "a command which gets into the core of privacy".
"That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite," the 58-page verdict by CJI Misra and Justice Khanwilkar said.
Concluding the separate but concurring decision, the CJI said that thinking of adultery from the point of view of criminality "would be a retrograde step".
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