Section 497 in the Indian Penal Code
- 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.
What does the word ‘adultery’ means?
As per the dictionary, adultery means “voluntary sexual intercourse between a married person and a person who is not their spouse“.
What is the problem with this law?
It is not gender neutral. This is because the law calls for the man to be punished in case of adultery, but no action is suggested for the woman.
As per Section 497, a woman whose husband has had sexual intercourse with another woman cannot file a complaint because the law makes no such provision for her! Moreover, the adultery law in IPC reduces women to an object because no consent of the married woman is required for a man to have sexual intercourse with her. As per Section 497, if the woman’s husband agrees, the act is not a crime. This is the reason many have called this law an anti-women law.
Who challenged the law?
Joseph Shine, a 41-year-old Indian businessman living in Italy, petitioned the Supreme Court to strike down the law. He argued that it discriminated against men by only holding them liable for extra-marital relationships, while treating women like objects. In his 45-page petition, Mr. Shine liberally quotes from American poet Ralph Waldo Emerson, women rights activist Mary Wollstonecraft and former UN Secretary General Kofi Annan on gender equality and the rights of women were dismissed by the court in the interests of “stability of marriages”.
However, India’s ruling BJP government had opposed the petition, insisting that adultery should remain a criminal offence. “Diluting adultery laws will impact the sanctity of marriages. Making adultery legal will hurt marriage bonds;” a government counsel told the court, adding that “Indian ethos gives paramount importance to the institution and sanctity of marriage”.
What did the Supreme Court say?
The judges called Section 497 obsolete and said that it violated Articles 14 and 21 of the IPC. “Each partner of the marriage has equal responsibility. Why should the woman take more load than the man? That is the reason we call it archaic,” the Supreme Court said.
The justices said, “Adultery can be ground for civil issues including dissolution of marriage but it cannot be a criminal offence.” The bench said that Section 497 was ‘unconstitutional’ as it violated the right to equality and there was no reason to continue this anymore. However, the Supreme Court held that adultery will remain a ground for divorce Justice DY Chandrachud said that Section 497 destroys and deprives women of dignity. “Women must be treated with equality with men. Any discrimination shall invite wrath of Constitution. A woman can’t be asked to think the way society desires,” said CJI Misra for himself and J Khanwilkar
CJI Misra added that the husband is not the master of the wife.
History of Section 497
Section 497 had come up in court thrice in the past — in 1954, in 1985, and in 1988. 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”. But in the latest case, the Supreme Court bench headed by Chief Justice Dipak Misra called the adultery law “anti-women” while hearing a petition that challenged Section 497 for being anti-men and giving leverage to women.
The adultery law has been criticised for treating women as property owned by men. Simply put, only a man can be a victim or accused/culprit under the existing reading of Section 497 of the IPC.
“Adultery might not be the cause of an unhappy marriage; it could be the result of an unhappy marriage. Mere adultery can’t be a crime unless it attracts the scope of Section 306 (abetment to suicide) of the IPC. Thinking of adultery as a criminal offence is a retrograde step,” CJI Depak Misra said.
Glance at other Countries
The Philippines is one among the Asian countries where the practice of adultery and keeping women is a crime. Both are deemed “crimes against chastity” under the Revised Penal Code of the Philippines and are treated as sexual infidelity in the Family Code. A wife and her partner can be sentenced for up to six years in jail if the husband proves that she had a sexual intercourse with a man outside the marriage. Husband, on the other hand, can only be charged if the wife proves that he had sexual intercourse under “scandalous circumstances” with his women or lived together with his “mistress” in any other place. The husband may be imprisoned for up to four years and 1 day, while his partner can be banished but faces no jail.
In China, adultery is not regarded as a crime but can be a ground for divorce. According to Article 46 of China’s marriage law, an aggrieved party only has the right to claim compensation when a divorce is led on the grounds of wrongdoing such as domestic violence or an extramarital affair.
Countries governed by Islamic law, including Saudi Arabia, and Somalia, all strictly prohibit “zina”, or “fornication outside marriage”. Punishments include arbitrary detention, imprisonment, mutilating and in extreme cases, the death penalty.
In Pakistan, adultery is a crime under the Hudood Ordinance, promulgated in 1979. The controversial law mandates a woman making an accusation of rape to provide four adult male eyewitnesses of good standing (tazkiyah-al-shuhood) to “the act of penetration” as evidence to avoid being charged with adultery herself.
South Korea, in 2015, was the latest country that decriminalised adultery. By a 7-2 majority, the nine-member bench revoked the 1953 law under which cheating spouses could be jailed for up to three years. “Even if adultery should be condemned as immoral, state power should not intervene in individuals’ private lives,” Presiding judge Park Han-Chul said during the hearing, reported The Guardian.
In Taiwan, adultery is a criminal offence that is punishable by up to one year in prison, with penalties applying to both sexes. “If Taiwanese men get caught, they usually apologise, then the wives tend to drop the charge because men are often the economic providers in most families, but if it is the other way round the women are dragged into court,” explains Chen Yichien, a gender equality activist, reported The Week.
In US, Adultery is rarely prosecuted as a criminal offence. More common than criminal prosecutions for adultery are job terminations, sanctions, penalty or demotions, the LA Times reported.
Having an affair outside the marriage is not illegal in any European country and Australia. Under federal law enacted in 1994, sexual conduct between consenting adults (18 years of age or older) is their private matter throughout Australia, irrespective of marital status. Australian states and territories had previously repealed their respective adultery criminal laws. Australia changed to no-fault divorce in 1975, abolishing adultery as a ground for divorce.