Section 497 of Indian Penal Code defines the concept of adultery. Section 497 of IPC says it is a punishable offense for a man to have sexual intercourse with a married woman without the consent of her husband. The man committing such an offense can be imprisoned for five years or more and can also be asked to pay a fine. Before the amendment of this section, this concept of adultery is only for men and not for women. The dictionary meaning of the term adultery reads thus, “adultery is a voluntary sexual intercourse between a married person and a person who is not their spouse”. If there is an intercourse between the two persons who are not spouses so that relation is consider as adultery.

Some persons say that this concept is not gender neutral. As all you know that there is a Article 14 in our Indian Constitution which speaks about right to equality, but this section is contrary to Article 14 as this section is only for men and not for women. In case of any act of adultery committed, the law calls for punishing the man but not the woman involved. Section 497 does not enable a woman to file a complaint against her husband when he has had sexual intercourse with another woman. But sections 497 of Indian Penal Code enable a man from filling a case of adultery if his wife committed the offence of adultery. A number of people call this an anti-woman law since the law seems to reduce a woman as a mere object. As per what they said law implies, a man does not need the consent of the woman to have sexual intercourse with her. The law only says, the said act will not be a crime if the woman’s husband agrees for the act.

The Supreme Court added that Section 497 looked ‘unconstitutional’ as it violates the right to equality. There are no reasons whatsoever to continue this law that does not serve the intended purpose. Nevertheless, the Supreme Court upheld that adultery can be a valid ground for applying for divorce. The justices says that Adultery can be ground for civil issues including the dissolution of marriage but it cannot be considered as criminal offence. CJI Misra said, Women must be treated with equality with men. Any discrimination shall invite wrath of Constitution. A woman can’t be asked to think the way society desires.

In the latest case, the Supreme Court bench headed by Chief Justice Dipak Misra called the adultery law “anti-women” while hearing a petition that challenged Section 497 for being anti-men and giving leverage to women. The petition was filed by non-resident Keralite, Joseph Shine, who challenged the constitutionality of IPC Section 497 read with Section 198(2) of the Criminal Procedure Code (CrPc). The CrPc Section 182(2) deals with prosecution for offences against marriages. And after this petition the court passed the judgment that

(i) section 497 is struck down as unconstitutional being violation of Articles 14, 15 and 21 of the Constitution.

(ii) section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. Shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under section 497.

So in September, 2018 the apex court had declared Section 497 of the Indian Penal Code (IPC) that makes adultery a punishable offence for men, unconstitutional and struck it down.


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