Section 497 states that if a man has sexual intercourse with a married woman without her husband’s consent, he is punishable by law.
- Adultery means “voluntary sexual intercourse between a married person and a person who is not their spouse”.
- Such person shall be punished with imprisonment of either description for 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
- Section 497 did not confer any right on women to prosecute adulterous husband or woman with whom husband has indulged in sexual intercourse with
- The husband solely has been permitted to prosecute adulterer.
Past Supreme Court judgments on adultery
- In 1954, the SC rejected that Section 497 violated the right to equality
- In 1985, it said that women didn’t need to be included in the law as a party which can make complaints
- In 1988, the Supreme Court said that the adultery law was a “shield rather than a sword”
- Moreover, according to earlier Delhi High Court in case of Brij Lal Bishnoi v/s State (1996) only sexual intercourse with married woman will be considered adultery. Sexual relations with widow, sex worker or an unmarried woman would not attract this section
Recent judgement on Section 497:
Joseph Shine Vs Union of India case
Challenge
- Section 497 of IPC and Sec 198(2) of CrPC
- Under Section 198(2) of the CrPC, the husband alone could complain against Adultery.
Court’s observation
Wife not a commodity
- Adultery is not a crime if the husband allows or consents to his wife’s extra-marital affair.
- Section 497 treats a married woman as her husband’s possession.
- It made a husband the licensor of his wife’s sexual choices.
Codified Patriarchy phased out
- Marriage does not mean ceding autonomy of one to the other.
- Ability to make sexual choices is essential to human liberty.
Discriminatory against women
- The law said a married man could be imprisoned if he has sexual relations with a married woman without the consent of her husband.
- It also prevented a wife from prosecuting her husband or the woman with whom he was having extramarital relation.
Doctrine of Coverture
- Coverture was a legal doctrine whereby, upon marriage, a woman’s legal rights and obligations were subsumed by those of her husband.
- This doctrine, not recognised by the Constitution, holds that a woman loses her identity and legal right with marriage, is violative of her fundamental rights.
SC’s Verdict
- The Supreme Court called the law unconstitutional because it “treats a husband as the master.”
- The court has now struck down both these provisions and has decriminalised adultery.
- The court observed that two individuals may part if one cheats, but it is not viable to attach criminality to the infidelity caused by adultery.
- How married couples deal with adultery is absolutely a matter of privacy.
- Adultery will continue as a ground of divorce and, remain in civil law.
