Why in news?

The court admitted a petition to drop adultery as a criminal offence from the statute book

Section 497 of the IPC

Section 497 of the IPC mandates that “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 the offence of rape, is guilty of the offence of adultery and shall be punished.

Application of Section 497 (example)

1. X (Male) and Y (Female) have been married for nine years. They both are professionals and lead a seemingly happy life. In the 5th year of their marriage, Y falls in love with her colleague Z (Male). X finds out about this affair and collects evidence of this. When he has enough evidence, he files a case of adultery under the relevant IPC provision.
2. In India, under the existing provisions, women cannot be prosecuted for adultery. So in the case mentioned above, Y’s husband can press charges of adultery on Z, who can get jail time of up to 5 years, but the same is not applicable for Y. This could, however, change, with the Supreme Court agreeing to revisit the provision.
3. In this case, both Y and Z are culpable of committing adultery. However, the law does not look at both parties in an adulterous relationship in the same light

What would the court examine?

The court would examine two aspects of the penal provision

1. Why does Section 497 treat the man as the adulterer and the married woman as a victim
2. The offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the “property” of her husband or a passive object without a mind of her own?

Court’s initial observation

1. SC has noted that in a case of adultery, one person is liable for the offense but the other is absolved and that the concept of gender neutrality, on which criminal law normally proceeds, is absent
2. The court has also noted that once the consent or connivance of the husband is established, there is no offense of adultery at all
3. SC described this as subordination of a woman and something that “creates a dent on the independent identity of a woman”

Past judgments of SC

1. The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497
2. In the past, the Supreme Court has emphasized that a married woman is a “victim” and the man is “the author of the crime”
3. It has treated the exemption given to women as a special provision that has the protection of Article 15(3)
4. It has rejected the argument that it is discriminatory by pointing out that neither a man nor a woman can prosecute their disloyal spouses
5. It is only the ‘outsider’ to the matrimonial relationship who can be prosecuted, and that too by the aggrieved husband alone
6. This is made clear in Section 198(2) of the Code of Criminal Procedure, a provision also under challenge

Why section 497 needs to be scrapped?

1.International scenario:

1. Many countries across the world do not treat adultery as an offense any longer
2. In 2012, a United Nations Working Group on laws that discriminate against women wanted countries that treat adultery as a crime, to repeal such laws.
3. UK has abolished adultery laws

2.Violation of Constitutional principles

1. The Constitution confers equal status to a man and a woman
2. It amounts to a violation of a women’s fundamental right against discrimination under Article 15 when the law “assumes a patronising attitude to women.”

3.Not in consonance with changing Social Conditions

Today both women and men move shoulder to shoulder with each other. Also, today Polygamy is not prevalent in Indian society. So, any biasness in the law towards any gender is like not evolving the law with the ever-changing society.

4.Promotes subordination of women

The section encourages the notion of treating wife as a commodity under the subjugation of husband. It harms the individual independent identity of women whose prosecution depends on husband’s consent.

5.Law discriminates against men

When sexual intercourse takes place with the consent of both parties, there is no good reason to exclude the wife and prosecute only her adulterer. Thus, Section burdens man alone for the offence and grants immunity to wife by treating her as a victim according to prevalent social norms.

Conclusion

No marriage or alliance can take away one’s right over one’s own body. Therefore, while the law on adultery as it is today in the IPC is discriminatory on the ground of sex; the very existence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity. No doubt that the law, as it stands, is inadequate.