Again, judge overrules his father’s judgment

New Delhi: Justice D.Y. Chandrachud did it again on Thursday by de-criminalising adultery as a punishable offence and declaring the provision as unconstitutional, reversing the 1985 verdict given by his father Justice Yeshwant Vishnu Chandrachud, who upheld IPC Section 497 relating to adultery.

In 1985, a judgment authored by Justice Y.V. Chandrachud, father of Justice Dhananjaya Chandrachud, in Sowm-ithri Vishnu vs Union of India had upheld the constitutional validity of Section 497.

Justice Y.V. Chandra-chud had then held that the arguments have a strong emotive appeal but they have no valid legal basis to rest upon. It was held that a penal provision cannot be held unconstitutional merely because it punishes man alone.

It is commonly accepted that it is the man who is the seducer and not the woman. Further he held that the offence of adultery as defined in Section 497 can only be committed by a man, and not by a woman. The section was concerned with dealing with the evil of "a man seducing the wife of another", and that a provision cannot be declared unconstitutional for under-inclusion. On Friday Justice Chandrachud over-ruled this decision after 33 years. This is the second instance when he reversed his father’s judgment.

In the privacy verdict by nine-judges, he held that the judgments rendered by all the four judges including his father constituting majority in the ADM Jabalpur case (during the Emergency) that personal liberty could be curtailed by the government were serious flawed.

Justice Chandrachud affirmed individual dignity and sexual autonomy, in stark contrast with the moral conservatism echoed by his father in Sowmithri Vishnu.

Autonomy is intrinsic in dignified human existence. He said Section 497 denuded the woman from making choices. Respect for sexual autonomy must be emphasised.

Marriage does not preserve ceiling of autonomy. Section 497 perpetrates subordinate nature of woman in a marriage.  

He further said "the law in adultery is a codified rule of patriarchy. Society attributes impossible attributes to a woman. Raising woman to a pedestal is one part of such attribution.”  

Further it is still a ground for divorce for the aggrieved woman..  The constitutionality of the Section was challenged for the first time in 1954. However, the scope of challenge was limited then, as it was based on the exclusion of women from punishment.

But the Supreme Court upheld it in 1954, holding that it was a beneficial provision for women as per Article 15(3) of the Constitution of India. The Section -which was twice upheld earlier, in 1954 and 1985- has been now invalidated by the Supreme Court, in tune with the expanding horizons of individual liberty and gender parity.