ANALYSIS OF SECTION 497 OF INDIAN PENAL CODE: ADULTERY

ABSTRACT

Adultery is defined under the section 497 of IPC. This section explains adultery as “whoever has sexual intercourse with a person who is and whom he knows or has the 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”. In this article, we will do a thorough analysis of section 497 and also the decriminalisation of this colonial era law. On September 27, 2018 the apex court of the country, pronounced a judgement striking down 158 year old colonial era law. Justice Indu Malhotra, one of the member of 5 judge bench said that, “The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure”.

INTRODUCTION

The term “adultery” has been derived from a French word “avoutre”, which means “to corrupt”. Under the Indian law, the term adultery is defined by Section 497[1] of Indian penal code. Under this section, adultery is explained as “whoever has sexual intercourse with a person who is and whom he knows or has the 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[2]. Unlike rape, adultery is a consensual and voluntary sexual intercourse between a married person and someone other than a lawful spouse of that man. The punishment prescribed under Section 497[3] for the adultery is imprisonment of either description for a term which may extend to five years, or with fine, or with both. It is also mentioned in the act that in the case of adultery, wife is not perceived as an abettor and hence she is not punishable. In the case of M. Alavi v. T.V. safia (1993)[4], it was held that adultery is nothing but basically an act of having sexual relationship outside the ambit of marriage.

ESSENTIAL ELEMENTS CONSTITUTING THE OFFENCE OF ADULTERY

In order to constitute the offence of Adultery, the following ingredients must be established:-

  1. There should be sexual intercourse between a man and a married women who is not his wife.
  2. The man having sexual intercourse with married woman must have the knowledge pr reason to believe that she is the wife of another man.
  3. That sexual intercourse must be consensual and not a forced one; otherwise that will amount to rape rather adultery.
  4. Such sexual intercourse must take place without the proper knowledge, consent or connivance of her husband.

CONSTITUTIONAL ASPECT OF ADULTERY

On September 27, 2018 the apex court in India, The Hon;ble supreme Court passed an order striking down the 158 year old law of Adultery. The most discriminatory and mot reprehensible law of adultery under section 497 of Indian Penal Code was repealed by the court in the case of Joseph Shine vs. Union of India (2018). The judgement was pronounced by the 5 judges Bench headed by the then Chief justice of India Deepak Mishra. The bench comprised of CJI Deepak Mishra, Justice R.F Nariman, Justice DY Chandrachud, Justice AM Khanvilkar and Justice Indu Malhotra. The five Judge bench ruled that the section 497 of Indian penal Code violates women’s right to equality and treats them like an object in the hands of their husbands. The chief justice of India Deepak Mishra stated that, ‘‘it’s time to say that a husband is not the master of his wife’’. He further stated that adultery may be the ground for divorce but can’t be put under the ambit of an offence.

The law of adultery treats married women as the ‘property’ of their husbands on the ground that their marital relationships with other married person depends upon the consent of her husband, which also means that on the will of husband, a woman can sleep with another man. The law provides the power to husband to legally control the sexuality of his wife[5].

“Adultery might not be the cause of an unhappy marriage, it could be the consequence of an unhappy marriage. Mere adultery can’t be a crime unless it attracts the scope of Section 306[6] (abetment of suicide) of the IPC. Considering adultery as a criminal offence is a retrograde step”[7], the bench said.

The 1st important discussion regarding the validity of the section 497 was held in the case of Yusf Abdul Aziz vs. the state of Bombay and Husseinbhoy laljee (1954)[8]. In this case, it was stated by the court that the section 497 is ultra vires the article 14 and 15 of the constitution of India.

In the case of Sowmithri Vishnu vs. Union of India & Anr. (1985)[9], the court held that the contemplation of law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.

In the case of Joseph Shine vs. Union Of India (2018)[10], the supreme court held that section 497 of IPC and section 198(2) of CrPC deals with the procedure of filling a complaint in relation to the offence of adultery, are violate from the perspective of Article 14, 15(1), and 21 of the Indian Constitution, and are therefore struck down as being invalid.

THE CONCEPT OF ADULTERY AROUND THE WORLD

In CHINA, adultery is not regarded as crime but can be a ground for divorce. According to Article 46 of china’s marriage law, an aggrieved party only has the right to claim compensation when divorce is filed on the grounds of wrongdoing such as domestic violence or an extramarital affairs.

In SOUTH KOREA, the adultery was decriminalised in 2015. By a majority of 7-2 majority, the nine member bench revoked the 1953 law under which cheating spouse could be jailed for up to 3 years. “Even if adultery should be condemned as immoral, state power should not intervene in individual’s private lives”, presiding judge Park Han-Chul said during the hearing.

DECRIMINALISATION LEAD TO INCREASE IN ADULTRY

According to Gleeden website, the cases of extramarital dating has risen from two lakh to over six lakh in the past year since the adultery law got decriminalised. A survey in six metro cities covering 10,000 people found that, “Many who were reluctant to commit adultery are now more open to it. The ratio of men to women on Gleeden’s site remained at 70:30 highlighting that more women, as well as men, have registered on the site since infidelity was decriminalised[11].

The study shows residents of cosmopolitan and mega cities are the ones committing this fidelity more. The tremendous rise in the number of Gleeden’s community members is recorded from the mega cities like Bengaluru, Mumbai, Kolkata and Delhi. The adultery seems more prevalent in largest cities where the households are less traditional and more inclined towards the western culture. In the largest cities, the concept of joint family is diminishing and trend of Nuclear family is rising sharply. In metropolitan cities, both wives and husbands are working as a result they get themselves very minimal time for each other. Most of their times are spent in office and while working, both husbands and wives are more likely to find time for a lover, as the survey states.

CONCLUSION

The decriminalisation of adultery was most appreciated and most awaited step to be taken by judiciary. This judgment not only discarded this law but also released the women who were leaving under the shadows of their husbands. As observed by Justice DY. Chnadrachud, Adultery was against the right to equality and life. This law was supported by the on the grounds of patriarchy and gender in equality.

REFERENCES

[1] ‘Adultery [S. 497 IPC and S. 198(2) CrPC]’, SCC ONLINE, < https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-1982-crpc/ >, Accessed on June 28, 2020.

[2] ‘Adultery no longer a crime, says Supreme Court’, THE ECONOMIC TIMES, < https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-quashes-adultery-as-unconstitutional/articleshow/65975327.cms >, Accessed on June 28, 2020.

[3] ‘India decriminalises adultery: A look at other countries where it is still a crime or not’, THE INDIAN EXPRESS, < https://indianexpress.com/article/india/india-decriminalises-adultery-a-look-at-other-countries-where-it-is-still-a-crime-or-not-5376598/ >, Accessed on June 28, 2020.

[4] ‘Increase in adultery in India, says survey’, THE TIMES OF INDIA, < https://timesofindia.indiatimes.com/home/sunday-times/increase-in-adultery-in-india-says-survey/articleshow/71959756.cms >, Accessed on June 28, 2020.

[5] ‘Adultery and the Indian Law’, REASEARCH GATE, < https://www.researchgate.net/publication/296877247_Adultery_and_the_Indian_law >, Accessed on June 28, 2020.

[6] ‘Why India needs to decriminalise adultery’, HINDUSTAN TIMES, < https://www.hindustantimes.com/columns/why-india-needs-to-decriminalise-adultery/story-dEqNZRtDuSLa6jgMrC07pI.html >, Accessed on June 28, 2020.

[7] ‘Adultery in India’, LEGAL SERVICES INDIA.COM, < http://www.legalservicesindia.com/article/413/Adultery-in-India.html >, Accessed on June 28, 2020.

[8] ‘Critical Analysis of Law of Adultery in India’, JMSG, < http://jmsjournals.in/admin/uploads/35_pdf.pdf >, Accessed on June 28, 2020.


[1] Indian Penal Code, 1860 Sec 497

[2] See, Recommendation of V.S.  Committee Chaired by Justice V.S.  Mallimath;  “The  Report  of  the  Committee  on  Criminal Justice Reforms”; 2002; Para 117

[3] Supra “Note” 1

[4] M. Alavi vs. T.V. safia (1993) Ker 21

[5] Rashmi kalia, Why India needs to decriminalise adultery, HINDUSTAN TIMES, (Aug. 12, 2018 12:13 PM)

[6] Indian Penal Code, 1860 Sec 306

[7] Express Web desk, India decriminalises adultery: A look at other countries where it is still a crime or not, THE INDIAN EXPRESS, (Sept. 27, 09:19 PM)

[8] Yusuf Abdul Aziz v. The state of Bombay and Husseinbhoy laljee (1954), SC 321

[9] Sowmithri Vishnu v. Union of India, (1985), SC 1618

[10] Joseph Shine v. Union of India (2018), SC 1676

[11] Himanshi Dhawan, Increase in adultery in India, says survey, THE TIMES OF INDIA, (Nov. 7, 2019 21:44 PM)

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