| Headnote |
Penal Code, 1860: s.497 – s. 198 of Cr.P.C – Offence ofAdultery – Whether unconstitutional, being violative of Articles 14,15 and 21 – Held: (Per Court): s. 497 IPC and s. 198 Cr.P.C. beingviolat ive of Articles 14, 15 and 21 of the Consti tution, areunconstitutional – (Per Dipak Misra, CJI): s. 497 treats women,subordinate to men – The rationale of the provision suffers fromabsence of logicality of approach and therefore suffers from viceof Art. 14 being manifestly arbitrary – Section 497 also createsinvidious distinctions based on gender stereotypes which creates adent in the individual dignity of women and hence offends Art. 21 –Offence of adultery u/s. 497 IPC does not fit into the concept ofcrime – If it is treated as a crime, there would be immense intrusioninto the extreme privacy of the matrimonial sphere – Section 198Cr.P.C. deals with procedure for filing complaint in relation tooffence u/s. 497 IPC, and hence it is also unconstitutional – (PerR.F. Nariman, J.): What is punished as ‘adultery’ is not ‘adultery’per se, but the proprietary interest of a married man in his wife –The archaic law u/s. 497 has long outlived its purpose and does notsquare with today’s constitutional morality – It has become utterlyirrational, manifestly arbitrary and discriminatory and henceviolative of Art. 14 and 15(1) – Dignity of individual is a facet ofArt. 21 – A statutory provision which degrades the status of women,falls foul of modern constitutional doctrine and must be struck downbeing violative of Art. 21 – Section 198 Cr.P.C. also beingdiscriminatory provision, is held constitutionally infirm – (PerChandrachud, J:): Right to sexual autonomy and privacy has beengranted the stature of a constitutional right – Section 497, in its effort to protect the sanctity of marriage, has adopted a notion ofmarriage which does not regard the man and the woman as equalpartners – Section 497 thus subordinates the woman to a positionof inferiority – Constitutional morality requires the court to enforceconstitutional guarantees of equality before law, non-discriminationon account of sex and dignity, all of which are affected by operationof s. 497 – Therefore, s. 497 IPC violates Art. 14 – It is based ongender stereotypes about the role of women and violates the nondiscriminationprinciple embodied in Art. 15 – It is also a denial ofthe constitutional guarantees of dignity, liberty, privacy and sexualautonomy which are intrinsic to Art. 21 – Thus, Section 497 IPC isunconstitutional – (Per Indu Malhotra, J.): Section 497 IPC failsto consider both men and women as equally autonomous individualsin society – The anomalies and inconsistencies in s. 497 IPC wouldrender the provision liable to be struck down on the ground of beingarbitrary and discriminatory – Any legislation which treats similarlysituated persons unequally or discriminates between persons onthe basis of sex alone is liable to be struck down as being violativeof Articles 14 and 15 – Right to privacy u/Art. 21 would include theright of two adults to enter into a sexual relationship outsidemarriage – An invasion of privacy u/Art. 21, by the State must meeta three-fold requirement i.e. (i) legality, (ii) need and (i ii)proportionality – Section 497 IPC as it stands today fails to meetthe three fold requirement and therefore violative of Art. 21 – Section198(2) of Cr.P.C. which contains the procedure for prosecutionunder Chapter XX of IPC shall be unconstitutional only to the extentthat it is applicable to the offence of adultery u/s. 497 IPC –Constitution of India – Arts. 14, 15 and 21.Constitution of India:Art. 15(3) – Protective discrimination – Applicability of – Tos.497 IPC – Held ( Per: R.F. Nariman, J.): Art. 15(3) is applicableonly to the law made by the State after coming into force of theConstitution and not to “existing law” – s. 497 is, in constitutionallanguage, an “existing law” which continues, by virtue of Art.372(1), to apply, and could not be said to be law made by the“State” – (Per D.Y. Chandrachud, J.): - Art. 15 (3) does not protecta statutory provision that entrenches patriarchal notions in garb ofprotecting women – ‘Protection’ afforded to women u/s. 497 highlights the lack of sexual agency that the Section imputes to awoman – (Per: Indu Malhotra, J.): – The purpose of Art. 15(3) isto further socio-economic equality of women – Section 497 cannotbe considered to be beneficial legislation covered by Art. 15(3) –Penal Code, 1860 – s. 497.Art. 21 – Right to privacy and personal liberty – Held: (PerIndu Malhotra, J.): An invasion of privacy u/Art. 21, by the Statemust be justified on the basis of a law that is reasonable and valid –Such invasion must meet three-fold requirement i.e. (i) legality, (ii)need and (iii) proportionality – Section 497 of IPC fails to meet thethree-fold requirement – Therefore, right to privacy u/Art.21 wouldinclude the right of two adults to enter into a sexual relationshipoutside marriage – Penal Code, 1860 – s. 497.Art. 21 – Right to live with dignity – Scope of – Held: (Per:Indu Malhotra, J.): – Right to live with dignity includes the rightnot to be subjected to public censure and punishment by the Stateexcept where absolutely necessary – Penal Code, 1860 – s. 497.Criminal Law:Criminal sanction – When justified – Held:(Per: Indu Malhotra, J.) – Criminal sanction may be justified where there is apublic element in the wrong – State must follow the minimalistapproach in the criminalization of offences, keeping in view therespect for the autonomy of the individual to make his/her personalchoices – Adultery is only a moral wrong qua the spouse and thefamily – In order to determine what conduct requires Stateinterference through criminal sanction, the State must considerwhether civil remedy will serve the purpose – Where civil remedyfor a wrongful act is sufficient, it may not warrant criminal sanctionby the State – Penal Code, 1860 – s. 497 – Remedy.Presumption:Presumption of constitutionality – Held: (Per Indu Malhotra, J.) – There would be no presumption of constitutionality in a pre-constitutional law – Constitutionalism.Legislation:Purpose of legislation – Held (Per Dipak Misra, CJI) – Alegislation should serve and promote good life – It should be fit and equitable so that it can have a right to command obedience.Law:Constitutionality of procedural law – When substantiveprovision is held unconstitutional – Held (Per Dipak Misra, CJI)When the substantive provision goes, the procedural provision hasto to pave the same path.Doctrine/Principle:Principle of Conventure – Explained.Maxim:‘Cessante ratione legis, cessat ipsa lex’ – Applicability of.Words & Phrases:‘Adultery’ – Meaning of.‘Crime’ – Meaning of.Allowing the writ petition, the Court. |
