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ADULTYERY CONCEPTUAL AND LEGAL ANALYSIS

SUBMITTED TO SUBMITTED BY
MISS. TRIPTI BHUSHAN JHARNA SAHU
(ASSISTANT PROFESSOR OF LAW ) BALLB
KALINGA UNIVERSITY 2nd SEMESTER
ADULTERY CONCEPTUAL AND LEGAL ANALYSIS

Section 497 of Indian Penal Code provides the law relating to adultery. Adultery is an
incursion on the right of the husband over his wife. It is a misdemeanor against the
sanctity of the wedlock and, an act, which is done by a man. It is a standoffish and
illicit act. The Apex Court previously considered that it cannot be said that in
construing the offence of adultery, any constitutional provision is encroached by
curbing the class of wrongdoer to men only.

The previous stand of higher judiciary was that Section 497 of IPC is not paradoxical
of Article 21 of the Indian Constitution. But, recently, the Supreme Court has
acknowledged 150 years old law on adultery as unlawful, which treats husband as the
master of his wife. It antagonizes the dignity of a woman. The Court held that
husband is not the master of wife. Section 497 of IPC is categorically and
conspicuously arbitrary and absurd because it provides unlimited rights to husband to
deal with the wife as he likes which is very much disproportionate
Introduction:-
When a man steals your wife, there is no better revenge than to let him keep her. –
Sacha Guitry
A plain reading of SECTION 497 of IPC tells us about the provision relating to the
offence of ‘adultery’. It reads as follows :

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 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.
History of Section 497 :-
Justice R F Nariman said all ancient civilizations punished the Sin of Adultery.

In Judaism, which again is an ancient religion, the Ten Commandments delivered by

the Lord to Moses on Mount Sinai contains the Seventh Commandment- thou shalt
not commit adultery- set out in the book of Exodus in the Old Testament.

In Christianity, we find adultery being condemned as immoral and a sin for both men
and women, as is evidenced by St. Paul’s to the Corinthians.

In India, too, Manusmriti provided for punishment for those addicted to intercourse
with other men’s wives by punishment which cause terror, followed by banishment.

The Dharmasutras speak with different voices. In the Apastamba Dharmasutra,

adultery is punishable as a crime, the punishment depending upon the class or caste
of the man and woman.
Adultery law in India:-
Section 497 of the Indian Penal Code was a section dealing with adultery. Only a
man who had consensual sexual intercourse with the wife of another man without
his consent could have been punished under this offence in India.

1. The Supreme Court called the law unconstitutional because it "treats a husband as the
master.
2. However it is still a sufficient ground for divorce as ruled by the Supreme Court

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][4] be punishable as an abettor.
Petition to decriminalise Section 497:-

Because of this problematic interpretation, the Supreme Court in December 2017

decided to accept the public interest litigation in which it has been prayed that the
Court strikes down or completely does away with Section 497 of the Indian Penal
Code entirely.

It has been argued that the section violates two articles of the Constitution of
India- Article 14 and Article 15.

Article 14 reads as follows: "The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India."

Article 15 reads as follows: "The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them.
The Judgment held the following things:-

Section 497 Is Archaic And Is Constitutionally Invalid

Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds
the encroachment on her right to life and personal liberty by adopting a notion of
marriage which subverts true equality. Sexual autonomy is a value which is an
integral party and falls within the ambit of personal liberty under Article 21 of India
Constitution. Respect for sexual autonomy is established only when both the
spouses treat each other with dignity and equality. This section is a denial of
substantive equality in that it reinforces the notion that women are unequal
participants in a marriage, incapable of freely consenting to a sexual act in a legal
order which regards them as a sexual property of their spouse. In this way, it is
violative of Article 14. It is based on gender stereotypes and violates the non-
discrimination clause of Article 15. Besides, the emphasis on the element of
connivance or the consent of the husband tantamount to the subordination of the
women. Therefore, it clearly offends Article 21 of the Constitution.
Section 497 To No Longer Be A Criminal Offence:-
A crime is something which is committed on the society as a whole, while adultery is
more of a personal issue. Adultery dosen’t fit into the concept of the crime as that
would otherwise invade the extreme privacy sphere of a marriage. However, it
continues to stand as a civil wrong and a ground for divorce. What happens after
adultery is committed should be left to the husband and wife to decide as it is
something which should only involve their personal discretion. Hence, declaring
adultery as a crime would somehow creep injustice into the system.

A Husband Is Not The Master Of His Wife:-

The judgment places reliance in the fact that women should not be considered as the
property of their husbands or fathers, for that matter, anymore. They have an equal
status in society and should be given every opportunity to put their stance forward.

Section 497 Is Absolutely And Manifestly Arbitrary:-

It is absolutely and manifestly arbitrary and irrational because it confers a license on
the husband to deal with his wife, as he likes which is extremely excessive and
disproportionate. The provision of Section 497 of IPC does not enable the wife to file
any criminal prosecution against the husband.
Some Cases In Which Law Relating To Adultery
Was Challenged Before The Court:-
Yusuf Aziz v/s State of Bombay:-
The adultery law first came under challenge in 1951 in this case. Petitioner
contended that the adultery law violated the fundamental right of equality
guaranteed under Articles 14 and 15 of the Constitution.

Three years later in 1954, the Supreme Court ruled that Section is commonly
accepted that it is the man who is the seducer, and not the woman. The Court
stated that women could only be a victim of adultery and not a perpetrator of the
crime under Section 497.

Sowmithri Vishnu v/s Union of India:-

The Supreme Court held that the section is not discriminatory between man and
woman, i.e. an under inclusive definition is not necessarily discriminatory. It does
not offend either Article 14 or 15 of the Constitution.

The Court held that men were not allowed to prosecute their wives for the
offence of adultery in order to protect the sanctity of marriage. For the same
reason, women could not be allowed to prosecute their husbands.
Conclusion:-
The Supreme Court has acknowledged 150 years old law on adultery as
unconstitutional, which treats husband as the master of his wife. The then Chief
Justice of India declares, The adultery law is arbitrary and offends the dignity of a
woman.

In this recent landmark judgment, the Apex Court directly blows the archaic and
patriarchal law in our country. Supreme Court in Joseph Shine case, has clearly laid
down that the beauty of the Indian Constitution is that it includes ‘I’, ‘you’ and ‘we’.
The women cannot be considered as a property of men in the modern progressive
jurisprudential parameters and expansive constitutional vision.