IPC Section 497 - Adultery

The section 497 of the Indian Penal Code, 1860 was drafted in 1860 when India was in the clutches of British rule. The First Law Commission headed by Lord Thomas Babington Macaulay framed this law in the aforementioned year.

The legislative intent behind the enactment of 497 is as follows:

1. Preserving the sanctity of marriage as a social institution - The primary aim of the lawmakers was to protect the institution of marriage by criminalizing illicit affairs or extramarital relationships.
2. Women had no agency - The law signified the patriarchal mindset that women were the property of their husbands and that they did not have any agency of their own. The law aimed to safeguard the honour of the husband which was put at risk by the adulterous actions of his wife.
3. Cultural and legal backdrop - The British lawmakers sought to draft a law that would fit the Indian society at the given time. Moreover, the cultural setting viewed adultery as a moral offence against the social institution of marriage. Hence, this law intended to moral police sexual behaviour, mainly of women.

Understanding Section 497 IPC

Section 497 punishes sexual intercourse taking place between a man and a woman where the woman is a married woman and no consent for such intercourse was obtained from the husband of the married woman. However, it is to be noted that such sexual intercourse should not amount to rape. That is, as per this section, there is a striking difference between the consent that a married woman gives without seeking it from her husband and the consent an unmarried woman gives for such sexual intercourse.

If sexual intercourse takes place between a man who is married and a woman who is unmarried or where the woman’s husband is already dead or if any sexual intercourse takes place where the husband of the married woman consents for the same, the same shall not be punishable as per this law.

When it is found that adultery has been committed, the husband cannot bring any legal action against his wife who has engaged in an extramarital relationship. He can only bring legal action against her adulterer. However, as the adultery offence can be committed by any man regardless of whether is he single or married to a married woman only, a wife of any man who engages in sexual intercourse with another unmarried woman cannot bring legal action against her spouse or the woman with whom he had an extramarital relationship. What stands out in this section is that the section clearly states that the wife who engaged in sexual intercourse with a man other than her husband cannot be prosecuted even as an accomplice. Hence, adultery offence cannot be committed against the wife but only the husband of the wife.

Essential Components Required To Prove Adultery

Essential components needed to prove adultery are as follows:

1. A man must participate in sexual intercourse with the spouse of another man
2. The man should be aware of or have reason to believe that the woman he is having sexual intercourse with is the wife of another man
3. No consent has been provided by the husband of the wife for such sexual intercourse
4. Such sexual intercourse cannot be defined as an offence of rape
5. Consent given by the woman or any willingness shown by her will not be a defence against this adulterous act

Moreover, Section 198 of the Criminal Procedure Code, 1973 states that a Court can take cognizance of the aforementioned matter only when the husband of the wife who later participated in such sexual intercourse files a complaint or in his absence, any such person responsible for looking after his wife on his behalf could with the leave of the court file a complaint if such adulterous act took place in that period.

Case Law And Judicial Interpretations

Judgments pronounced on this matter are discussed as follows:

Yusuf Aziz v. State of Bombay (1951)

The first instance where adultery was challenged was in the matter of Yusuf Aziz v. State of Bombay (1951). Petitioner argued that the law on adultery violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution.

The compelling argument made in the case was that the law did not hold women liable for this adulterous relationship and gave them a free pass to commit the crime.

The Apex Court upheld the constitutionality of Section 497 stating that it neither violated Article 14 nor Article 15 of the Constitution. The court explained that the Constitution empowers the State to enact special provisions for children and women under Article 15(3). Hence, the exemption was provided to women under the law to protect them and this was well within the constitutional framework. As per the Court, it was believed that a woman could not be a perpetrator of a crime of such a nature and only a victim.

Sowmithri Vishnu v. Union of India & Anr. in 1985

The second instance where adultery law was discussed is the matter of Sowmithri Vishnu v. Union of India & Anr. in 1985. The Apex Court ruled that to make the law fair and impartial, the law could not declare the woman as an aggrieved party.

This was so because men did not have the permit to bring legal action against their wives to preserve the sanctity of marriage. Following the same reasoning, even the women could not be permitted to bring legal action against their husbands. Hence, this case reaffirmed that adultery was a crime committed by a man against another man. Moreover, the court rejected the argument to include an unmarried woman under the ambit of this law. The Court further stated that if the law made such an extension, Section 497 would become a crusade of one woman against another woman.

V Revathy v. Union of India in 1988

The third instance where adultery came up for discussion was V Revathy v. Union of India in 1988. The petitioner argued that this law along with Section 198(2) of CrPC were discriminatory since they did not allow a wife to bring legal action against her adulterous husband and that such laws should be declared unconstitutional. However, the Supreme Court remained firm in its previous approach, stating that both laws were not discriminatory as they were enacted as such with the legislative intent of preserving the sanctity of marriage. The Court further explained that the provisions made room for reconciliation between husband and wife which wouldn’t be possible in a different scenario.

Criticisms And Controversies

Some of the criticisms and controversies related to Section 497 are discussed as follows:

1. Gender discrimination - The major criticism against the law was that it was inherently discriminatory towards women as they were not given any free agency and instead treated as the property or chattels of their husbands. They did not have any say in matters concerning sexual behaviour. The one-sided aspect of the law where the wife was not allowed to bring legal action against her adulterous husband reinforced the patriarchal norms.
2. Violation of the right to equality and personal liberty - The law did not treat men and women parallelly and allowed the prosecution only by the husband of the married woman, making this classification unjust and unfair. Moreover, the interference of the law in the private affairs of consenting adults engaging in sexual intercourse was viewed as an unfair restriction on personal liberty.
3. Moral Policing - The law was criticized for moral policing since it seemed to reinforce the orthodox views on marriage as a social institution and sexual behaviour.
4. Slim chances of reconciliation - It was noted that instead of promoting reconciliation, the frustration or dissatisfaction of not getting due justice as a wife of the adulterous husband could further break down the relationship.

Decriminalization of Adultery: Joseph Shine v. Union of India

Section 497 was decriminalized in the matter of Joseph Shine v Union of India in 2018. The petitioner argued that the aforementioned section was discriminatory and impinged upon his right to equality and personal liberty. Moreover, he argued that the law viewed women as husband’s property instead of giving them free agency or autonomy.

A five-judge Constitution Bench of the Apex Court, headed by then CJ Dipak Misra, collectively struck down Section 497, stating it unconstitutional.

The important findings from the case are as follows:

• The Court declared that section 497 was discriminatory as it did not provide any autonomy to the wife to bring legal actions against her adulterous husband and treated women as the property of their spouses.
• The Court states that this law impinged upon the right to life and personal liberty as it interfered in the matters of personal choices where adults had full-fledged freedom to make choices.
• The Court threw a spotlight on the matter that the law adhered to the conservative ideas of exercising a patriarchal approach and penalised only the male participants in adulterous relationships.
• The Court stated that it was acceptable to make adultery a reasonable ground for divorce but it should not be categorized as a criminal offence since it was being used to enforce moral standards where participants engaged in an act as consenting adults.

Current Legal Status of Adultery in India

Since the Apex Court has struck down Section 497 of the Indian Penal Code, let’s discuss its standing in civil law and military law:

• According to Section 13(1) of the Hindu Marriage Act. 1955, today also adultery is a valid ground for seeking divorce.
• According to Section 27 of the Special Marriage Act, of 1954, adultery is an independent ground for a spouse to seek divorce. Further Section 125(4) of the Criminal Procedure Code, 1973, which talks about maintenance of wives, etc. states that if it is proved that the wife was living in adultery, she will not be entitled to receive maintenance.
• Following the decriminalization of adultery in 2018, it is currently valid under military law and considered a serious offence with grave consequences. Section 45 of the Army Act, of 1950 terms adultery as an offence where if the military personnel is found guilty, strict disciplinary action shall be taken against him. Moreover, section 46 of the Army Act states that when an officer is found guilty of disgraceful conduct, he can be liable for imprisonment of up to 7 years.

Bharatiya Nyaya Sanhita Act, 2023

The Bharatiya Nyaya Sanhita Act, 2023 has been acted with the intent to bring significant changes in the criminal justice system of India while taking a contemporary approach to matters of privacy and personal relationships.

Here’s the detailed approach to how the current regulatory framework treats adultery :

• Following the Apex Court’s stance in the Joseph Shine v Union of India (2018) case, the current law does not criminalize adultery.
• While it is not a criminal offence anymore, it plays a crucial role under civil law. The current law acknowledges that problems associated with marital behaviour including adultery can be raised in civil courts, majorly when it comes to seeking divorce or resolving marital conflicts. Moreover, it is still a valid ground for divorce under the Hindu Marriage Act, of 1955 and the Special Marriage Act, of 1954.
• The law emphasizes the significance of privacy and autonomy of individuals by upholding the value of equality and the right to personal liberty along with accepting that matters of private and personal nature should not be subject to criminal law.
• The law does not impact the criminalization of adultery under the military law.

Conclusion

The dynamic shift observed in the Court’s approach towards adultery and the legislative intent of the lawmakers in the current regulatory framework under the Bharatiya Nyaya Sanhita Act, 2023 is a much-needed and welcome change. The end of a century-and-a-half-long discrimination between men and women that continued to moral police a woman’s sexual autonomy treated her as the property of her husband and legitimised the conservative patriarchal notions was long-awaited in the current scenario where personal liberty and privacy take precedence over law’s interference in the private matters of two consenting adults. Not only that but the law continues to ensure that marital disputes concerning adultery are resolved in civil courts where the aggrieved party can seek divorce irrespective of his gender.