Early on the heels of having struck down the Victorian era archaic Section 377 (which criminalised homosexuality), the Supreme Court has unanimously quashed yet another Victorian law from the statute, that rendered adultery as a criminal offence only for men (adultery could not be used as a criminal offence against women). Acts of adultery will not qualify as a crime, although they would still be grounds for civil action and divorce.

A five-judge Constitution Bench led by Chief Justice of India Dipak Misra, also comprising Justices R. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, declared IPC’s Section 497, which deals with adultery, as unconstitutional, while delivering its verdict on a petition filed by Kerala-based Joseph Shine to drop the law that makes adultery a criminal offence. “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence,” said the Bench.

The Bench wrote four separate judgments with CJ Misra authoring on behalf of Justice Khanwilkar too. Section 497 of the IPC, a Victorian provision, mandates that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery and shall be punished.”

The judges agreed that women were entitled to equal rights under the Constitution and could not be considered as their husband’s property to be treated as they liked. “Husband is not the master of woman,” C J Misra declared, adding, “any law which affects individual dignity, equity of women in a civilised society invites the wrath of the Constitution.” Terming that adultery as a criminal offence “is absolutely, manifestly arbitrary,” Justice Misra said it affects the subordination of woman and thus affects her right to life.

Justice Nariman observed the ancient notions of man as seducer and woman as victim is long past. “It is difficult to conceive of such situations in absolute terms. This archaic law has long outlived its purpose and does not square with today’s constitutional morality. On this basis alone, the law deserves to be struck down.”

Justice Chandrachud said that the adultery law deprives married women the agency of consent and the Section 497 offends sexual freedom of women. “The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster,” he said.

Justice Indu Malhotra said that Section 497 infringed on the right to sexual self-determination and privacy. “The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereotypes in relationships, and institutionalises discrimination is a clear violation of fundamental rights,” she said.