Anyone who has sexual intercourse with a person he knows or has cause to think is the wife of another man, without that man’s permission or connivance is punishable under Section 497 of the Indian Penal Code. Sexual intercourse of this nature is not rape, but it is adultery, and it will be penalized.
Even if the legal meaning differs by legislation and nation to country, the universal definition of “adultery” is a married person’s consensual sexual intercourse with a third person other than their spouse. Since many religions, including Hinduism, Islam, Christianity, and Judaism, have condemned and criminalized adultery, the current trend is inclined to decriminalize it. Most cultures also blame both men and women, but only the female adulteress spouse, not the male adulterer, would be punished in old Hindu law. This rule discriminates against women. The subsequent criminalization of adultery raised additional questions about the validity of the provision.
A casual examination of section 497 of the IPC’s opening provisions reveals that this section punishes a male criminal who engages in adultery with a married woman without her husband’s consent or knowledge.
The basic concept of this crime is that adultery, which is defined as having sexual intercourse, is exclusively the responsibility of the male offender. This is a crime committed against the husband by a third person (a male) in relation to his wife.
In this situation, two things must be understood. To begin, a sexual act between a married man and a married woman whose husband consents, or between an unmarried woman and a widow, is not deemed adultery and is not determined to have happened.
Second, to commit an offense under this section, a male criminal does not need to know whose wife he has sexual contact with, but he must know that she is a married woman. It is therefore evident that the crime of ‘adultery’ violates the right of the husband to govern his wife. It is a breach of the holiness of the house and a human deed. It’s an unfair and unlawful act.
It should also be noted that the scope of the rule is restricted to adultery by a married woman and that the male criminal shall be penalized for up to five years’ imprisonment, a fine, or either. The lady’s agreement or readiness is not enough to excuse the crime of adultery. Adultery is when a man opposes his wife and makes her a criminal. A man who has sex with a single or prostitute wife, a widow, or a married woman with the husband’s agreement or involvement, cannot attain this.
- Yusuf Aziz v. State of Bombay
This was the first lawsuit to challenge the adultery statute since 1951. It was challenged because it violated Articles 14 and 15 of the Constitution. The petitioners claimed that Section 497 of the IPC discriminated against males by not penalizing women who commit adultery. Under Article 15 (3) of the Indian Constitution, the Court ruled that Section 497 of the IPC is legally legitimate. The court said that the reason for enacting an adultery statute was that, in most instances, the woman is the victim and therefore cannot be the culprit. However, in this case, the irony was that, although the court recognized women as victims of adultery, they were denied the opportunity to submit a complaint.
- Sowmithri Vishnu v. Union of India
Even after the verdict was handed down in this instance, the uncertainty surrounding the legality of the adultery legislation could not be cleared up. When it comes to protecting the integrity of marriage, the Supreme Court ruled that to safeguard both the husband and the wife, they should not be able to file complaints against each other in the event of an illicit connection. The Court, on the other hand, upheld the illegality of marriage under the IPC.
The Court also ruled that if an unmarried woman engages in a sexual relationship with a married man, she will not be held liable for adultery. However, if an unmarried man participates in a sexual relationship with a married woman, he will be held responsible for punishment under Section 497 of the Indian Penal Code (IPC).
- V Revathy v. Union of India
In this instance, the Court ruled that not prosecuting women for adultery was justified to preserve the integrity of marriage and therefore achieve a social benefit. They might use it as a “shield rather than a sword” to “make up.” The Court ruled that the adultery legislation does not violate anyone’s constitutional rights and is therefore lawful.
THE SUPREME COURT’S JUDGMENT
This section of the IPC was challenged in the case of Joseph Shine v. Union of India. In this case, the petitioners argued that criminal law should not monitor or govern private morality or immorality. The Centre argues that adultery is a deliberate act that compromises sexual faithfulness and marital purity. It is an activity done intentionally and voluntarily, knowing that it would harm the family, children, and spouse.
After hearing both sides, the Supreme Court ruled that Section 497 of the Indian Penal Code was unconstitutional and struck it down. The clause breached Article 14 (equal protection of laws) and Article 15 (non-discrimination based on sex) of the Indian Constitution, the Court said. The Court also threw down Section 198 (2) of the Criminal Procedure Code, which enabled a husband to prosecute his wife’s adulterous partner. The Court also ruled that for adultery to be a crime, one of the spouses must commit suicide. In this scenario, the other spouse would be responsible under Section 306 of the IPC.
In his decision, Chief Justice Deepak Misra said that any law that asserts the husband as master of the wife and treats women unequally could not be deemed constitutional. In response to the issue of consent, CJI Misra said that a married woman’s refusal to agree amounted to rape. In contrast, if both adults agree to sexual activity, it does not meet the definition of an offense. Justice Indu Malhotra said that Section 497 “institutionalizes discrimination” and should be repealed in her decision.
The Supreme Court noted that criminalizing interpersonal interactions would violate the right to privacy provided by Article 21 of the Indian Constitution.
The Supreme Court repealed an old statute that treated women as the property of their husbands. According to different women activists, adultery was criminalized due to the uneven treatment of women and their position as distinct autonomous people. Decriminalization was required to liberate women from “patriarchal domination.”
Justice Chandrachud offered opposing remarks on the matter. A woman’s sexual urges cannot be controlled after marriage, and Section 497 deprives women of their sexuality, which is why it must be ruled illegal. Women do not commit their sexual liberty to their husbands. Any law that denies women the right to have consensual sexual relations with anybody outside of marriage must be repealed. He went on to argue that Section 497 is arbitrary and destroys a woman’s dignity. Disrespect for female sexual autonomy.
Men having sexual encounters with married women were socially accepted before the IPC, making adultery a crime. Personal and marital laws were not codified back then. To safeguard the rights of women, adultery was criminalized. No freedom for women to make a complaint against their unfaithful spouse, notwithstanding the clause defending their rights.
The Hindu Marriage Act of 1955 was the first to include adultery as a reason for divorce. Achieving independence from their spouses has become a social norm as monogamy has become more prevalent. The necessity to criminalize adultery is gradually becoming obsolete, undermining its purpose. Thus, the Supreme Court of India’s decision to decriminalize adultery is commendable and will help to protect women’s physical integrity and autonomy in the years to come.
Author’s Name: Rishabh Mishra (Babu Banarasi Das University, Lucknow)