Section 497 of the Indian Penal Code, 1860 provides punishment for Adultery. Until 2018, Adultery was treated as a punishable offence and only the male offender was liable to be punished with imprisonment extending up to five years, with or without fine, or both. The section did not prescribe any punishment to the wife of the husband, even as an abettor.
A five Judge Bench of the Supreme Court on 27th September 2018 unanimously struck down Section 497, overruling its previous decisions.
This anti-social and illegal act has been defined in the Code as under:
497. 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.
On a plain reading of the Section we find that, even though the act has been committed by both, the Code only prescribes punishment to the male offender and grants relief to the wife by treating her as a victim. The wife is not punishable as an “adulteress” or even as an abettor of the offence, despite being a consenting party to the act.
Since it restricts the class of offenders to men only, it comes to our notice that this provision treats women as demeaning as if they are a property of their husband. The provision also does not make mention of the circumstances of a man having sexual intercourse with an unmarried woman or a widow. Thus, the provision holds a man criminally liable only if he has sexual intercourse with a married woman (not being his wife) and not in other cases.
Also, it is not Adultery, if the man has sexual intercourse with a married woman whose husband consents to it. This further, makes the provision devoid of any logic.
As Adultery directly affects the sanctity of the matrimonial home, it is important to discuss the provisions of the Hindu Marriage Act in detail. Before the enactment of The Hindu Marriage Act in 1955, Hindus could marry any number of times. It is only after 1955, that monogamy was incorporated and strict prohibitions that a Hindu cannot be involved in a marital relationship with more than one person was enacted. Thus, Adultery also did not exist as a ground for divorce since a man could marry any number of times, therefore it is clear that there was no sense in punishing a man having sexual intercourse with an unmarried woman as he could easily marry her anytime. Owing to the patriarchal nature of our society, it is clear that, if the consent of the husband of the woman is obtained, then the man having sexual intercourse with the wife of another man, does not commit the offence of Adultery. This archaic law which regarded women only as chattel also did not punish her even as an abettor.
Yusuf Abdul Aziz versus State of Bombay¹
In this case, the question arose whether Section 497 contravened Article 14 and 15 of the Constitution. The Appellant was being prosecuted for Adultery under Section 497 IPC. The Hon’ble Supreme Court observed that Section 497 is not ultra vires under Article 14 and 15 on the ground that it is only the man, who is held liable for adultery and not the wife with whom adultery is committed. Dismissing the appeal of the Appellant, it was held that since Section 497 was a special provision for the benefit of women, it was saved by Article 15(3) under which State can make special provisions for women and children.
Sowmithri Vishnu versus Union of India²
In this case, while challenging the validity of Section 497, it was argued before the top court that section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman and that section 497 does not take in cases where the husband has sexual relation with an unmarried woman. The Supreme Court dismissed the petition affirming its earlier view that Section 497 cannot be said to be violative of Article 14 on the ground that it makes an irrational classification between men and women. The court further observed that the fact that provision for hearing the wife is not contained in Section 497, cannot make that section unconstitutional as violating Article 21 of the Constitution.
The criminal law of Adultery differs from country to country. It differs according to religious norms, the attitude of people and other factors. In England and Wales, adultery is not treated as a criminal offence. All the European countries have decriminalized adultery, though the act may have legal consequences in divorce proceedings. Adultery as a crime is no more prevalent in China, Japan, Australia, Brazil, Malaysia, Singapore, and Hong Kong. In the United States, the law relating to criminalizing adultery is different in different States. It is a criminal offense in 19 States, though the prosecutions are rare. The countries that still hold Adultery as a criminal offense include Pakistan, Afghanistan, Bangladesh, Iran, Nepal, Maldives, Philippines, Indonesia, some states in the US, Algeria, Congo, and Morocco. In the Philippines, it is the married woman, and not the husband, who is liable for Adultery.
The issue came before the Supreme Court when Joseph Shine, a non-resident filed a petition challenging the validity of the law. The petition contended that only men were penalized for having extramarital affairs and that women were treated as objects. The top court in its landmark verdict overturned the previous judgments and struck down the law that criminalized Adultery. Though it is no longer an offence, the court ruled that it still is a civil wrong and continues to be a ground for divorce. The Supreme Court while dealing with the constitutional validity of Section 497 also dealt with the constitutional validity of Section 198 of the Criminal Procedure Code, 1973. Section 198 provides for prosecution for offences against marriage. The relevant proviso of the Section treats the husband of the woman to be the person aggrieved for offence under Section 497. It does not consider the wife of the adulterer as an aggrieved person. Thus, the court in its verdict also declared Section 198(2) of the Cr.P.C. to be unconstitutional to the extent of its applicability to the offence of Adultery under Section 497.