Validity of Section 497 I.P.C. will be decided by the Constitutional bench of the Supreme court of India
Section 497 penalizes sexual intercourse of a man with a married woman without the consent of her husband when such sexual intercourse does not amount to rape. That is, it draws a distinction between consent given by a married woman without her husband’s consent and a consent given by an unmarried woman. It does not penalize the sexual intercourse of a married man with an unmarried woman or a widow or even a married woman when her husband consents to it. In case the offence of adultery is committed, the husband cannot prosecute his unfaithful wife but can only prosecute her adulterer. However, since the offence of adultery can be committed by a man with a married woman only, the wife of the man having sexual intercourse with other unmarried women cannot prosecute either her husband or his adulteress. What is interesting here is that the section itself expressly states that the unfaithful wife cannot be punished even as an abettor to the crime. The offence of adultery therefore is an offence committed against the husband of the wife and not against the wife.
The Constitutionality of Section 497 was challenged before the Supreme Court under Article 14 on the grounds that it makes an arbitrary discrimination based on sex in the cases of Yusuf Aziz , Sowmithri Vishnu and V. Revathi.
In the case of Yusuf Aziz the Court ruled that the immunity granted to women from being prosecuted under section 497 was not discriminatory but valid under Article 15 (3) of the Constitution.
In the cases of Sowmithri and V.Revathi it was held that it is the policy of the law to not to punish women for adultery and policies could not be questioned. Secondly, that it was not contemplated for a husband and a wife to strike each other with weapon of criminal law. And that adultery therefore was an offence against the matrimonial home and not either against the wife or the husband.
It must be mentioned here that all of the above decisions of the Supreme Court had restricted their scope to the determination of Constitutional validity of Section 497 as it stands. They should not be taken as an authority over the question whether Section 497 is required at all.
Adultery cannot be committed without a woman’s consent. Yet, the section burdens man alone for the offence. Though the reasons for this may be justifiable, the woman here is always treated as a victim of the offence. Hence, this section does not contemplate a situation where the same married woman has sexual intercourse with more than one person other than her husband without her husband’s consent. It is highly implausible that even in such a situation the woman would always be the victim and not the person who provokes the offender for the crime. No doubt that the law, as it stands, is inadequate.
Why Women Are Not Punished for Adultery
The offence of Adultery did not punish women but still existed in the code because at the time the enforced law was enacted polygamy was deep rooted in the society and women shared the attention of their husbands with several other wives and extramarital relations. Women were treated as victims of the offence of adultery as they were often starved of love and affection from their husbands and could easily give in to any person who offered it or even offered to offer it. The provision was therefore made to restrict men from having sexual relations with the wives of other men and at the same time to restrict their extra marital relations to unmarried women alone.
Why the Supreme Court Has Erred
Considering the limited question of Constitutional validity before it the object of Section 497, as stated above, was never brought before the Supreme Court. The decisions of the Court therefore have erred to the limited extent of holding adultery as an offence against the matrimonial home.
If adultery had been a matrimonial offence neither the husband would have had the freedom to indulge in extra-marital sexual relations with unmarried women nor the consent of the husband of the wife when she had sexual intercourse with other men would make any difference in its constitution. Adultery therefore is not an offence against the matrimonial home but against the husband himself. The way a person is not expected to enter on the property of the other without his consent, another man is not expected to have sexual intercourse with someone’s wife without his consent. It uses the same analogy that is used for the offence of trespass. There is no doubt then that this section treats a woman like a man’s chattel.
Changing Social Conditions
Polygamy in all religions except Muslims, who are legally allowed to have four wives, has ceased to exist and become illegal. Men now have only one wife who has no rivals for her husband’s love and affection. Today, not only a person having two wives can be prosecuted for bigamy but his second marriage is void ab-initio. Unlike the past when it was required to prove that the husband “lived in adultery” to obtain a divorce, even a single instance of sexual intercourse with anyone other than the spouse entitles the other spouse for divorce.
Now, wives are not deprived of their husband’s love and care and spouses can hardly maintain any polygamous or extramarital relations without inviting any legal action. Even the definition of adultery in civil law is much wider in scope than in criminal law. The personal laws, which did not exist in the present form at the time this law was passed, have not only become operational but also given somewhat of a level playing field for both, the husband and the wife. Naturally, these factors have made the then object of Section 497 obsolete.
Why Women Should Not Be Punished Even Now
The object of the amendment to punish women for adultery is not clear. It may either be the fact that the reasons which warranted for the exception of women for the offence of adultery in the last century are no longer valid or to bring gender parity in the present law. In either case the amendment would defeat the purpose.
It is true that the reasons which warranted for the exception of women for the offence of adultery in the last century are no longer valid still however, the consequences of amending the definition of adultery to make women punishable would be horrific.
Merely because we have been able to give women the attention they deserve from their husbands does not mean women are being treated equally in every aspect socially. We live in a society where far from prosecution, even an allegation of a woman’s unfaithfulness is sufficient to reap havoc in her life. In case women are made punishable for adultery Section 497 would become haven for all husbands and in-laws wanting to get rid of their wives and daughter in-laws at the cost the woman’s social status. Once a woman’s reputation is ruined she will become an easy prey for abuse by other men. The Legislature must understand that what is not equal cannot be equalized by changing definitions. Making a provision which makes a woman lose her reputation in Indian society is like killing the soul of the person while keeping only the body alive. In no case should such a murder be allowed.
Thus, changing the definition of adultery to make women punishable under the name of gender parity will only give society a ground to defame women and increase the disparity of status further defeating the very purpose of the proposed amendment.
