Analysis Of Section 497, IPC by Mitali Singh At LEXCLIQ


“Autonomy is intrinsic in dignified human existence and Section 497 denudes women from making choices and held adultery as a relic of the past.” – Justice DY Chandrachud

The universal definition of ‘adultery’, is the voluntary sexual intercourse of a married person with a third person other than the spouse, although its legal definition varies from statute to statute and country to country. Since many religions across the world including Hinduism, Islam, Christianity and Judaism have condemned adultery and criminalised it, the modern trend has inclined towards decriminalising it. Most cultures make both men and women equally liable but in case of ancient Hindu law, only the female adulteress spouse would be punished and not the male adulterer. This provision discriminated against women. The subsequent criminalisation of adultery raised further questions on the validity of this provision.

Therefore, the constitutionality of this provision was challenged from time to time. In one such case, the Supreme Court struck down Section 497 of IPC which criminalised adultery while still considering it as a ground for divorce. The present article deals with the Supreme Court’s judgment of striking down a 158-year old adultery law mentioned under Section 497 and the rationale of the court behind striking it down.

The historical background of Section 497 of IPC

The enactment of adultery law dates back to colonial times when the Indian Penal Code was enacted in 1860. The Indian Penal Code criminalised adultery under Section 497. However, adultery was not provided as a ground for divorce until the enactment of Hindu Marriage Act in 1955. There were two reasons for the absence of adultery as a ground for divorce:

  1. Before the enactment of the Hindu Marriage Act of 1955, Hindus did not have any provision for divorce since marriage was considered a sacrament in ancient times. Since there was no law for divorce, the provision for adultery as a ground for divorce was not present.
  2. Another reason was that in ancient times, a Hindu man was allowed to marry any number of women and indulge in sexual intercourse with them. Therefore, a provision for punishing the husband for indulging in sexual intercourse was pointless since the man could eventually marry the woman with whom he had sexual relations.

However, things changed after the advent of Hindu Marriage Code in 1955 under which a Hindu man could marry only one woman. Therefore, in order to protect the institution of marriage and prevent its breakdown, adultery was enacted as a ground for divorce. This would deter the man from indulging in sexual relations with the woman other than his wife.

An analysis of Section 497 of the IPC

Section 497 of the IPC gave a husband the exclusive right to prosecute the person with whom the wife committed adultery by indulging in sexual intercourse with him. The husband can also file for divorce against his adulterous wife on grounds of adultery. However, a similar right was not conferred on a wife to prosecute the woman with whom her husband has committed adultery. Secondly, the provision did not confer any right on the wife to prosecute her husband for adultery. This is, however, one perspective of looking at this provision.

The second perspective is that this section punishes sexual intercourse of a man with a married woman without the consent of her husband. However, in case there is a sexual intercourse of a man with an unmarried woman with her consent or with a married woman with the consent of her husband, then the man cannot be liable for adultery.

The Supreme Court’s judgement in the present case

The constitutionality of Section 497 of IPC was challenged in the case of Joseph Shine v. Union of India, 2018. In this case, the petitioners contended that criminal law should be used only as the last method of social control and it should not be used to check or control private morality or immorality. Centre, on the other hand, argued that adultery is an intentional action which impinges on the sexual fidelity and sanctity of marriage. It is an action knowingly and willingly done with the full knowledge that it would hurt the family, the children and the spouse.

After hearing both the sides, the Supreme Court in a Bench headed by the then Chief Justice of India, Deepak Misra, pronounced that Section 497 of the Indian Penal Code is unconstitutional and hence, struck it down. The court held that the provision was based on gender stereotypes and hence violated Article 14 (equal protection of laws) and Article 15 (non-discrimination on grounds of sex) of the Indian Constitution. The court also struck down Section 198 (2) of the Criminal Procedure Code which allowed a husband to bring charges against the man with whom his wife has committed adultery. The Court also held that for adultery to be termed as a criminal offence, it is essential that one of the spouses committed suicide in the course of the events. In such a case, the other spouse would be made liable for abatement to suicide under Section 306 of IPC.

Chief Justice Deepak Misra, while pronouncing the judgement, observed that any provision asserting husband as the master of the wife and treating women with inequality cannot be considered constitutional. Responding to the question of consent, CJI Misra observed that in case of absence of consent of the married woman, it amounts to rape. On the contrary, if the sexual intercourse is done with the consent of both the adults, then the act fails to qualify the test of an offence. Justice Indu Malhotra, while reading her judgment, observed that Section 497 “institutionalises discrimination” and therefore, such a provision needs to be struck down.

The Supreme Court on the question of passing a judgement for a new, gender-neutral adultery offence, remarked that subjecting interpersonal relationships to the severity of criminal law would amount to an intrusion into the right to privacy guaranteed under Article 21 of the Indian Constitution.

By Mitali Singh At LEXCLIQ

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