Section 497 defines adultery as a crime committed by men when they have sexual intercourse with a married woman. It is not an offence when a woman has sexual intercourse with a married man. This anomaly in the law reflects our notions on women and sexuality.
Section 497 of the IPC criminalised adultery: an evaluation :
This section provides punishment for adultery. Adultery is an invasion on the right of the husband over his wife. It is an offence against the sanctity of the matrimonial home and an act, which is committed by a man. It is an anti-social and illegal act. The scope of the offence under the section is limited to adultery committed with a married woman, and the male offender alone has been made liable to be punished with imprisonment, which may extend up to five years, or fine or with both. The consent or the willingness of the woman is no excuse to the crime of adultery. Hence, adultery is an offence committed by a man against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow, or even with a married woman whose husband consents to it or with his connivance.
Adultery under section 497 of IPC is limited in scope as compared to the misconduct of adultery as understood in divorce proceedings. As stated earlier, the offence is committed only by a man who has sexual intercourse with the wife of another man and without the latter’s consent or connivance. The wife is not punishable for being an adulteress, or even as an abettor of the offence, despite being a consenting party to the crime. She as an “abettor” will get away with it.
However, proof of sexual intercourse is an essential element of the offence but direct evidence is seldom available and in most cases, it has to be inferred from the totality of circumstances. The victim (woman) must necessarily be a married woman whose husband consents or connives to the sexual intercourse, it will not be an offence of adultery and therefore, Section 497 IPC will not be attracted. It is to be noted that the aggrieved party in the offence of adultery is the husband whose wife has consented to have sexual intercourse with some other person than her own husband. Section 198(1) of the Code of Criminal Procedure, 1908 specifically provides that no person other than the husband of the woman shall be deemed to be aggrieved by an offence of adultery under section 497 or the section 498 of IPC, provided that in the absence of the husband, some person who had care of the woman on behalf of the aggrieved husband, with leave of the court, make a complaint against the accused. However, the consenting woman (wife of the aggrieved husband) cannot be made a accused.
Position of the offence of adultery in other countries :
The criminal law of adultery varies from country to country. It is not uniform. It differs according to the religious norms, attitude of the people and many other factors. The law relating to criminal adultery prevailing in different States in the United States reveal that three major formulations of adultery exist under state laws in the United States such as the common law view, the canon law, and the hybrid view. According to the common law view, adultery takes place only when the women is married and both husband and wife are held liable. Under the canon law view, adultery is the voluntary sexual intercourse of a married person with a person other than the offender’s husband or wife and only the married person is held guilty. According to the hybrid rule, followed in twenty states in the United States, if either spouse has sexual intercourse with a third part, both transgressors are guilty of adultery.
However, adultery is not a criminal offence in the United Kingdom. It is punishable mildly, in some of the European countries such as in France, a wife is guilty of adultery is punishable for a period ranging from three months to years imprisonment. The husband however, may put an end to her sentence by agreeing to take her back. The adulterer is punishable similarly. In Germany, if a marriage is dissolved because of adultery, the guilty spouse as well as the guilty partner, is punishable with imprisonment for a term of not less than six months, but prosecution has to be initiated by the aggrieved spouse by means of a petition. In Pakistan, adultery is viewed as a heinous crime and both the man and woman are subjected to punishment. However, in Malaysia, Singapore, Hong Kong adultery is not an offence under the Penal Code. In Philippines, it is the married woman and not the husband is liable for adultery.
The law regarding adultery as prescribed under section 497 is blatantly biased against the woman :
The makers of the law seemed to have thought that the sanctity of matrimonial home would be violated if either of the parties resorts to adultery. The law is thus blatantly biased against the woman. It has put the man in a privileged position by treating the relationship between husband and wife as one of the owner and owned. The section is only meant to punish the adulterer because he has laid his hands on another man’s property i.e., wife and tried to steal the same. The law continues to treat woman as a nonperson and an object, giving her the status of property. The idea of equal status, identity and liberty should be fundamental to any democratic civilization. A law, which forces the woman to live under a code imposed by man, totally negating the feminine viewpoint, is alien to truly humanistic values.
Along with Section 497 of IPC Section 198 of CrPC is also declared Unconstitutional
The Supreme Court also clarifies in Para 56 of Joseph Shine’s Judgement that the offence of Adultery as prescribed under Section 497 of IPC should not be treated as an offence because it is unconstitutional. Therefore, the procedure for filing a complaint regarding the offence of adultery as prescribed under section 198 of CrPC is also unconstitutional. Because when the substantive provision goes, the procedural provision has to pave the same path.