A Few Days Before Article 370 Repeal, SC Decriminalized Adultery In J&K As Well [Read Judgment]

Just a few days before the special status of Jammu and Kashmir was scrapped by a Presidential order, the Supreme Court held that the entire Section 497 of the Ranbir Penal Code which criminalizes Adultery is also unconstitutional.

In a judgment delivered on 2nd August 2019, the bench comprising Justice Rohinton Fali Nariman and Justice Surya Kant in Col. Rajnish Bhandari vs. Union of India observed thus:

Having perused Section 497 of the Ranbir Penal Code, 1932, applicable to the State of Jammu and Kashmir, we are of the view that, given our judgment in Joseph Shine v. Union of India, the pari materia provision contained in Section 497 of the Ranbir Penal Code be also declared as violative of Part III of the Constitution of India.

Another issue dealt by the bench was whether the sentence "In such case the wife shall be punishable as an abettor", appearing in Ranbir Penal Code will stand unaffected by the Supreme Court judgment in Joseph Shine vs. Union of India. The bench observed:

The sentence "In such case the wife shall be punishable as an abettor", which does not occur in Section 497 of the Indian Penal Code, 1860, cannot stand by itself in view of the fact that the expression used is 'In such case'. The entire Section is, therefore, declared to be unconstitutional. The fact that this statement of law in the Ranbir Penal Code is the exact opposite of the statement of law, so far as the wife is concerned, of that contained in the Indian Penal Code, 1860, is of no consequence." 

The Constitution bench of the Supreme Court had, on 27th September 2018, struck down 158 year old Section 497 of the Indian Penal Code, which criminalizes adultery. Section 497 punished a married man for having sex with 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 wife should not be even treated as an abettor.

Section 497 of the Ranbir Penal Code enacted in the year 1932, contained a pari materia provision criminalizing Adultery. The only difference between the two codes is that the Ranbir Penal Code states that the wife shall be punishable as an abettor.

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