Section 497 of the Indian Penal Code criminalized adultery. This section was introduced in the Victorian era. It stated-
Adultery—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 case the wife shall not be punishable as an abettor.
What is adultery?
Adultery is sexual consensual intercourse between a married person with a person who is not their husband/wife.
What is Section 497?
According to Section 497 of the Indian Penal Code, a man commits an offence if he engages in a sexual relationship with a married woman without taking prior consent of her husband to do so. As a punishment, he could be imprisoned for 5 years, with or without fine.
How is the law pro women and anti women at the same time?
PRO WOMEN: The law only applies to men – women could not be charged with adultery i.e man in the relationship could be persecuted by the law, but the woman would be let off.
ANTI WOMEN: Women could not be the complainant of adultery. Only a man could charge another man under this section. If a husband has an affair, the wife could not prosecute him or the woman he cheated on her with.
Also, this section treated women as an object and a property of the husband. According to the law, the man just needed the approval of the husband. The consent of the woman did not play any role.
Reason for excluding women
The legislative intent behind the enactment of Section 497 was quite different from what is perceived now. In 1860, The Law Commission of India was given the responsibility of drafting a new penal code. The Commission formed the law keeping in mind “the condition of the women” in those times, which included child marriages, polygamy and age gap between spouses. So it rendered liable only the male offender, fulfilling the duty of law to protect the oppressed (women in this case).
Yusuf Abdul Aziz vs State of Bombay
In this case, a constitutional bench held then that Section 497 did not violate the right to equality as enshrined in Articles 14 and 15 of the Constitution. Sex is a sound classification and although there can be no discrimination on such account, the Constitution itself provides for special provisions with regard to women and children as given in Article 15(3). Thus, Articles 14 and Article 15 read together validate Section 497 of the IPC.
Revathi vs Union of India
In case of V. Revathi v. Union of India the court held that that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law.
Joseph v Union of India
In October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Art 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Sec 497 of IPC read with Sec 198(2) of the CrPC.
A five judge bench on 27th September, 2018 finally struck down Sec 497 as unconstitutional being violative of Art 14, 15 and 21 of the constitution and held that Sec 198(2) of CrPC shall be unconstitutional to the extend that it is applicable to Sec 497 IPC. Though adultery was decriminalized, Section 497 could still be used as a ground for any kind of civil wrong such as divorce.
“Husband is not the master of wife. Women should be treated with equality along with men,” – Chief Justice Misra
“Ancient notions of man being perpetrator and woman being victim no longer hold good” -Judge Rohinton Nariman
“The law perpetuates subordinate status of women, denies dignity, sexual autonomy, is based on gender stereotypes” -Justice DY Chandrachud
Section 497 was a gender-biased law and decriminalizing the same has provided a stand for equality. But, the court and legislature still need to answer questions regarding children born out of such relationships.