This article is written by Divya Patel, student of BALLB 2nd year studying at Lovely Professional University. This article discusses section 497 of IPC which deals with Adultery.
“Autonomy is intrinsic in dignified human existence and section 497 denudes women from making choices and held adultery as a relic of the past “- justice D Y Chandrachud.
It is a voluntary sexual intercourse of a married person with a third person other than the spouse. Since many religion across the world including Hinduism, Islam Christianity and Judaism have condemned adultery and criminalised it, but in the modern trend has inclined towards decriminalising it.
HISTORICAL BACKGROUND OF SECTION 497 IPC
The enactment of adultery law dates back to colonial times when the IPC was enacted in 1860. The IPC criminalise adultery under section 497 however adultery was not provided as a ground of divorce. In ancient times a Hindu man was allowed to marry any number of women and indulge in sexual intercourse with them. Therefore a provision for punishing the husband was pointless.
However things changed after the enactment of Hindu marriage code in 1955 under which a Hindu man can marry only one women therefore in order to protect the marriage and prevent its breakdown adultery was enacted as a ground of divorce.
WUSUF AZIZ V. STATE OF BOMBAY
The court stated that the section 497 of IPC is constitutionally valid under article 15 (3) of the constitution. The court asserted the reason behind adultery law was that because in most ofcases the women who was the victim cannot be a perpetrator. However the irony in the case was that although the court consider women as a victim they did not provide them with the right to file the complaint.
ANALYSIS OF SECTION 497 OF IPC
Section 497 of IPC give husband the right to prosecute the person with whom the wife commuted adultery by indulging in sexual intercourse with him. The husband also can file for the divorce against his wife on ground of adultery. However this right were given to wife to prosecute her husband for adultery.
The second perspective is that this section punishes sexual intercourse of a man with a married women without the consent of her husband. However the present case focuses on the first perspective which gives husband the right to punish the person with whom his wife has committed adultery and such rights are not given to wife.
The constitutionality of section 497 of IPC was challenged in the case of Joseph Shine v. union of India, 2018. It was observed that any provision asserting husband as the master of the wife and treating women with inequality cannot be considered constitutional. CJI Mishra observed that in case of absence of consent of the woman, it amounts rape.
ANALYSIS OF DECRIMINALISNG ADULTERY
Though marriage is both a civil contract in Muslim law and a sacrament in Hindu law, it is not a standard form of contract. Therefore it is upon the discretion of husband and wife whether they want to penalise other spouse in case they enter into adulteress relationship or not. Even the presence of adultery as a ground for divorce is to reach a settlement and not prosecute the person for that offence since prosecution cannot be an effective remedy for the aggrieved against whom adultery has been committed. Due to this, most western countries have decriminalised adultery and even in countries where it still exists, prosecution is rarely the preferred path.
During the time when adultery was termed as an offence under IPC, the actions of the men entering into sexual relationship with married women were socially acceptable due to which the married women where left devoid of love and affection. Also, there was absence of codified personal and matrimonial always during that time it was due to this reason that the act of adultery was criminalised in order to protect the interest of women. Even though the provision was for protecting the interest of the women, they were not given a right to file a complaint against her adulterous husband.
Author: Divya patel,
Lovely professional University,law 2nd