Explained: Adultery law and discrimination

A Constitutional Bench has been constituted by the chief justice to decide upon the constitutionality of section 497 IPC, which relates to adultery.

Written by Prateek Gupta | New Delhi | Updated: January 16, 2018 3:48:09 pm
adultery law, section 497 Adultery is not considered a criminal offence towards women in India and has been in limelight for being discriminatory towards men. (Illustration by C R Sasikumar/File)

A Constitution bench of the Supreme Court will re-examine the constitutionality of Section 497 of the Indian Penal Code which incorporates provisions for the adultery law. Adultery is a criminal offence in India and the violation of the same can invite penal consequences of imprisonment for a term which may extend up to five years, or fine, or both.

A three-judge bench headed by Chief Justice Dipak Misra had referred a PIL challenging Section 497 of IPC, which says that in an offence of adultery only the man can be punished and the woman cannot be punished even as abettor, to a Constitution bench.

Adultery is not considered a criminal offence towards women in India and has been in limelight for being discriminatory towards men. However, there’s more to it than being prejudicial towards men.

Section 497 reads as: “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.”

The statutory provision reflects how women are considered mere “possession” and “property” of the husband. Any person who has sexual intercourse with the wife of another man, without the consent of that man, shall be liable for the crime of adultery. The key words here are “wife of another man” and “without the consent or connivance of husband”.

Only sexual intercourse with a married woman would amount to adultery. Sexual relations with a widow, sex worker or an unmarried woman would not attract this section. This has been confirmed by the Delhi High Court in the case of Brij Lal Bishnoi v/s State (1996).

The only sound explanation to such provision is that the perpetrator/offender has trespassed upon a husband’s marital property and is now liable to be prosecuted for unlawful possession.

Further, the section does not confer any right on the women to prosecute the adulterous husband or the woman with whom the husband has indulged in sexual intercourse with. The husband solely has been permitted to prosecute the adulterer.

In Sowmithri Vishnu v/s Union of India (1985), it was argued that Section 497 is violative of Article 14 and 16 of the Constitution. The Supreme Court dismissed the contentions and stated that it is commonly accepted that “it is the man who is the seducer and not the woman,” completely ignoring the other aspect of the section.

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