Adultery law in India is defined by the Indian Penal Code Section 497. The adultery law has come under the scanner of the judiciary several times in the past but the courts including the Supreme Court held Section 497 valid. But 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.
IPC Section 497 states, “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.”
The Supreme Court on August 2, said, “The law seems to be pro-women but is anti-women in a grave ostensible way. As if with the consent of the husband, wife can be subjected to someone else’s desire. That’s not Indian morality.”
“Each partner of the marriage has equal responsibility. Why should the woman take more load than the man? That is the reason we call it archaic,” the Supreme Court said.
The Supreme Court’s observation followed an affidavit by the Centre, which said, “Adultery should remain an offence. Diluting adultery law will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds.”
Section 497 also states that a man found guilty of adultery “shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.”
In cases of adultery, the wife shall not be punishable as an abettor.
Similarly, an unmarried woman can not be prosecuted for adultery. The offence of adultery is, according to Section 497, committed by a man against a married man.
The adultery law has been criticised for treating women as property owned by men.
In the event of a man committing adultery by means of sexual intercourse with a married woman or an unmarried woman, this law does not confer any right on the man’s wife o prosecute the adulterous husband or the woman with whom the husband has indulged in sexual intercourse with.
Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.
But the Union home ministry defended Section 497 by referring to a judgment passed in 1985 Sowmithri Vishnu vs Union of India case. Quoting from the Supreme Court judgment, the home ministry said, It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.
A three-judge Supreme Court bench headed by the then Chief Justice YV Chandrachud had upheld the constitutionality of Section 497 of the IPC.
The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery.
It states that even a single act of voluntary sexual act by either party to the marriage with any person other than his or her spouse constitutes a ground for divorce for the other spouse. But, Section 497 of the IPC doesn’t recognise a woman as an aggrieved party in the case of adultery.