“Any provision of law affecting individual dignity and equality of women invites the wrath of the constitution. It’s time to say that the husband is not the master of the wife. Legal sovereignty of one sex over other sex is wrong”, read out Chief Justice Misra from the judgment written for himself and Justice A M Khanwilkar. The judgment held Section 497 to be “manifestly arbitrary”.
“We declare Sec 497 IPC and Sec 198 of CrPC dealing with the prosecution of offences against marriage as unconstitutional,” said the CJI and Justice Khanwilkar.
Section 497 punished a married man for having sex with the wife of another man. However, the sexual act is exempted from punishment if it is performed with the consent or connivance of the husband of the other woman. Also, the provision exempts the wife from punishment and states that the wife should not be even treated as an abettor.
Adultery is the only provision in the penal code that treats men and women differently, for one, because it treats a married woman as the ‘property’ of their husband.
Justice Nariman termed Section 497 as archaic law and concurred with the CJI, Justice Khanwilkar saying that Section 497 is violative of right to equality and right to equal opportunity to women.
Justice Indu Malhotra also said that criminal sanction is justified where there is a public wrong against society. “Adultery is a moral wrong to the spouse and family. Such a law would be justified if it is against the society. Right to live with dignity includes the right not be censured in public,” she said.