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The Vice of Adultery

The Indian Penal Code is a comprehensive code which is intended to cover all substantial matters of criminal law. Until 27th September 2018, this Code was home to the infamous Section 497, which talks about Adultery. The Supreme Court of India on this date, held Section 497 to be unconstitutional as it ‘treats the husband as the sole master.‘ The 158 years old law was struck down in 2018, as it was violative of Article 14, 15 and 21 of the Constitution of India.

So, how did this practice which went on for 158 years come to an end? If Section 497 of IPC was violative of Article 14, 15 and 21 why did it take the Courts 158 years to hold it unconstitutional? Was this the only time that someone filed a petition against this law? Why was such a law even a part of a secular law such as the Indian Penal Code? Every one of us has at some point asked these questions. Today, let’s take the opportunity to understand more about Section 497, how it came into being and why till recently the law had not been repealed!

What is Adultery?

The law regulating Adultery was given an umbrella under Section 497 of the Indian Penal Code. According to this section, ‘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 to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.

This law came into being during the British rule in 1860. At this point in time, the society was of the view that women were a property of the men and the law for Adultery clearly encompassed this view. Adultery in simple words is an act of having a sexual relationship with someone outside of the marriage.

However, the bare reading of the provision shows that only a man could be punished. If a woman files a case under the said section against an unmarried woman whom her husband committed adultery with, she would not be tried. This is because the provision amounts to a free license to have an extramarital relationship with an unmarried woman. The person of importance is a married woman according to the Section. Having a sexual relationship with a married woman amounts to Adultery but having sexual relations with an unmarried woman is an extramarital affair. Though both are acts of Adultery and can be a ground for divorce, only the first instance would attract criminal charges as Section 497 only makes Adultery committed with a married woman an offence under IPC.

Analysis of Section 497

Under this Section, Adultery is made a criminal offence and punishment for the same is prescribed. Adultery is the invasion of the right a husband has over his wife. It is considered to be an offence against the sanctity of the matrimonial relation and an act or wrong which is committed only by a man. The scope of the act extends only to the commission of Adultery with a married woman; the male offender is the only one punished for this act. Punishment for this crime is imprisonment which could extend up to five years, or fine or both imprisonment and fine. It must be noted that the consent of the woman is of no importance in this crime.

It can safely be said that Adultery is a crime done by a man against the husband of the married woman. It is not a crime punishable under Section 497 of IPC if a man has a relationship sexual in nature with an unmarried woman, prostitute, a widow or even a married woman whose husband consents to the same.

It has expressly been mentioned in Section 497 that a woman who is part of this crime will not be held to be an abettor or co-accused as the law sees the women in this situation as a victim and not an offender of the crime. While passing the Indian Penal Code Amendment Act, 1972, the issue to amend this provision was brought about. They were of the view that to keep up with the social changes in the world the privileges bestowed upon women through this section should be done away with.

Under this motion, they believed the Section must either be repealed, or the women must be made a party to the crime as an abettor. The motion, however, did not muster enough support which was required to abolish the said Section. Indian society has changed over time and to live with the concept that a woman is a man’s property is highly inappropriate in this new era. Yet, people felt it necessary to retain such a law in the name of honouring the matrimonial institution.  

Previous Judgements on Adultery

Section 497 of IPC was challenged for the first time before the Supreme Court in 1954 in the case of Yusuf Abdul Aziz v. State of Bombay. Here the court held that Section 497 of IPC is not ultra-vires to Article 14, 15 and 21 of the Constitution of India on the mere basis that a woman is not held liable or punished as an abettor and only the men are punished for this crime. The Constitution of India provides for the State to make laws for women and children under Article15 (3). The judges, in this case, believed sex to be a reasonable classification and hence, held that this law does not violate Article 21 of the Constitution. Hence, Section 497 of IPC was not repealed.

This question was raised for the second time before the Supreme Court in the case of Sowmithri Vishnu v. Union of India. The Court, in this case, held that the consent of women under Section 497 of IPC is of no importance. It is commonly accepted that it is the man that is the seducer and not the woman. They stated that though the society might have gone through a change and the view on the matter might have changed, it is the duty of the legislature to consider whether Section 497 of IPC needs to be amended.

The Court also went ahead and held that though Section 497 of IPC does not provide for the wife to be heard, that does not mean it is violating Article 21 of the Constitution. It is true that Section 497 does not provide for the married woman to be heard but it does not justify the argument that she is not entitled to be heard at the trial. She can make an application to the Court and she would be given an opportunity to be heard. Neither any substantive law nor criminal law prohibits the judges to give the party an opportunity to be heard, which could be affected by the judgement given by the Court, either directly or indirectly.

Supreme Court struck down Adultery

In the year 2018, the Supreme Court in the judgement of Joseph Shine v. Union of India struck down Section 497 of the Indian Penal Code and decriminalized Adultery in India. It is an important judgment as it held that:

  • Husband is not the master

The judges here clearly laid down the fact that women are no longer the property of men. The views of the society have changed and women are very well capable of taking care of themselves and no one else has a right on her or can control her will. Due importance on equality is given and it has been agreed to that today, a man and a woman stand of equal footings.

“Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness, which has been further nurtured by judicial sensitivity when it has developed the concept of the golden triangle of fundamental rights. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than space in an annexe to the main building. That is the manifestation of concerning sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, a few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as to how society desires. Such a thought is abominable, for it slaughters her core identity. In addition, it is time to say that a husband is not a master. Equality is the governing parameter. All historical perceptions should evaporate, and their obituaries be written.”

  • There is a need to adopt a progressive parameter for implementing women’s rights-

Keeping in mind the fact that society has changed over time and the position of women in society has improved over the years, such a law must be changed too. A law which protects the people of the society must necessarily evolve with the people and time. A woman is her own person and can no longer be classified as a property of her husband so to have a law protecting such a right is of no use. Further, it is improbable to get a criminal offence in the middle of a matrimonial relationship and hold the third party culpable. 

  • Section 497 is arbitrary in nature-

Section 497 of the Indian Penal Code is arbitrary in nature. It confers upon the husband the right to deal with the wife on his own terms, which at times could even be disproportionate and excessive. Further, Section 497 does not confer upon the wife a right to file a complaint against her husband for Adultery.

The provision protects one of the women saying she is the victim to the crime as it is committed upon her but doesn’t provide for any safeguard to a woman who has faced the repercussion of such a crime being committed by her husband. It makes the provision illogical and cannot be justified by saying that it is made to protect women, as it does not really offer women any protection. It only classifies women as a man’s property and safeguards the right of a man on his wife. Therefore, the Section does not make a reasonable classification and hence, is in violation of Article 14 of the Constitution.

  • It is violative of Article 21 of the Constitution-

The Court by analysing the concept of Right to Privacy and Equality to women declared Section 497 as unconstitutional as it is violating Article 21 of the Constitution. The Court agreed to the fact that the women’s Right to Equality is a right which cannot and should not be curtailed. Section 497 essentially curtails the rights of women’s equality and dignity, as it is based on stereotypes and is gender-biased. It is a serious threat to women’s rights and dignity.

Conclusion

It took our country 158 years to abolish a law which over time was outdated and irrelevant. Not only is it irrelevant in the current era, but it also has an unfavourable effect on women’s rights to equality and dignity. Over the years our society has evolved; women have fought their way to the top, they are independent and capable of taking decisions and looking after their own wellbeing. From being the Prime Minister of a country to being the only earning members of their families, women shoulder the household responsibility, as much as any man does, if not more. So, to have a law which still considers a woman as a man’s property is not only derogatory for women, but it also impedes their right to equal treatment.

The Supreme Court by holding Section 497 of the Indian Penal Code unconstitutional has given a clear view that upholding women’s rights is of prime importance and it is the duty of each citizen to see that these rights are not violated. The judgement throws light on the fact that there is a need to adopt progressive jurisprudential parameters to determine women’s rights.

A section of the society believes that this judgement will have an impact on the institution of marriage, in both positive and negative ways. While it liberates the women of our nation and gives them justice, it could potentially disturb the institution of marriage as with the decriminalization of Adultery, people will be free from the fear of facing any criminal consequence, which may lead to them having extramarital affairs. It would also mean that civil action would be attracted in such cases and it is a strong possibility that in the coming years the number of divorces would skyrocket. This would adversely affect the future of their children as well as the sacred and honoured institution of marriage in India.

The judgement like any other judgement has its positive and negative aspects, but only time will tell us which aspect takes the front.


Editor’s Note
The Indian Penal Code is one of the oldest and leading legislations under the criminal law system of India. Because of it being the oldest, the need arises to amend certain provisions and Sections of the Code from time to time. One such Section which required major amendment was Section 497 of IPC which dealt with the crime of Adultery. The article tends to explain what constituted the crime of Adultery under the said Section, how the Courts had upheld the constitutional validity of the Section previously through various case laws and how it was finally decriminalized in the year 2018. The author has given the major reasons due to which the Supreme Court had taken such a major step in this direction. Lastly, the author has also given certain cons of the judgement and has concluded by saying that only time would tell whether the pros of the judgements will outweigh its cons or vice versa. 

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