This section deals with Adultery and it says that whoever has sexual intercourse with married women, without the consent of her husband, is guilty of offence of Adultery and defines this offence as Non-cognizable and bailable. This offence is compoundable by the husband of the woman with whom adultery is committed. Section 497 punishes only man, women cannot be punished even as an abettor or for being an adulterous, it does not give wife a right to file complaint against the adulterous husband. Supreme Court in one of the judgment said that in order to protect sanctity of marriage, married man is not allowed to prosecute their wife and women could not be allowed to prosecute their husband. Thus the offence of adultery is treated as crime committed against man by another man.
Whoever commits the offence of Adultery is punishable for imprisonment for a maximum term of Five years or with fine.
SECTION 198(2): AGGRIEVED PERSON
Section 198(2) treats husband of the wife as aggrieved by an offence committed under section 497 and in absence of husband, any other person will be treated as aggrieved who had taken care of woman at the time when the offence was committed. Which means only husband of women with adultery is committed can file a complaint under this section and in absence of husband any other person who had taken care of the woman.
HISTORY OF ADULTERY LAW IN INDIA
Adultery is a pre constitutional law enacted in 1860 during the time when women were considered as property of the husband and were not allowed to take any decision independently. Adultery was put into question in year 1957, where writ petition was filed and petitioner alleged that section 497 violates Fundamental Rights guaranteed under Article 14, 15 of Constitution and it discriminated between men and women by not making women liable under this section, and it gives women a right to commit this crime. In 1954 Supreme Court ruled that Adultery is valid and said that and it does not give women a right to commit this offence. It was held that it is man who is seducer not the woman.
The object of making ‘adultery’ as an offence and restricting it to ‘Man’ alone was to deter ‘Man’ from taking advantage of woman starved of the love and affection of her husband and deter Man from having sexual relations with the wife of other man. Since men had the social sanction to maintain such relations and women were starved of the love and affection of their husbands, women were treated as the victims and not the authors of the crime.
JOSEPH SHINE V. UNION OF INDIA 2017
This is a Landmark case of Adultery in India where, Joseph Shine, a 41 year old businessman, filled a writ petition under Article 32 challenging the validity of section 497 read with Section 198(2) of CRPC saying that it is arbitrary, discriminatory, illegal and violative of Fundamental Right.
On August 2, five judges constitution bench consisting of Chief Justice Dipak Misra, Indu Malhotra, D.Y. chandrachud, A.M. khanwilkar, R. F. Nariman struck down Section 497 saying that adultery is unconstitutional as it violates Fundamental Rights i.e. Article 14 and Article 15 of Indian constitution because it treats men and women differently. Court further said that sexual privacy is also a part of right to privacy and hence Section 198(2) is also violative of Article14, 15, 21 and it shall be unconstitutional to the extend it applies to Section 497.
Every Individual has an option to make his/her choice with respect to his/her sexuality and it is the most intimate decision of life so it should be protected. Section 497 considered women as “chattel” because her relation with a married man depends upon the consent of her husband, every woman should be treated with equality along with men. Former CJI Dipak Misra also said that adultery law is anti-women. Apex Court further held that Adultery will be a ground of Divorce; either spouse can file a petition for divorce on the ground of Adultery.
“Adultery can be ground for any civil wrong, but adultery should not be a criminal offence,” he said. Stating that a wife was not a chattel of the husband, Misra said, “Any provision of law affecting individual dignity and equality of women invites the wrath of the Constitution. It’s time to say that a husband is not the master of wife. Legal sovereignty of one sex over other sex is wrong.”
The landmark Judgments of Supreme Court on section 497 are based on Violation of these four Fundamental Rights
ARTICLE 14: Right to Equality – Article 14 of the constitution states that it is the duty of the state to ensure that no citizen is denied of his Right of equality before law and equal protection from law residing within the territory of India.
ARTICLE 15: No discrimination – Discrimination on the basis of race, caste, gender, sex, and religion is prohibited, this section also gives state a power to make special provision for women and children of socially and economically backward class.
ARTICLE 19: Right to freedom – Every citizen has following rights under this section:
• Freedom to speech and expression.
• Freedom to assemble peacefully without arm.
• Freedom to form association and union
• Freedom to move freely throughout India
• Freedom to practice any profession, trade or occupation.
ARTICLE 21: Right to life and personal liberty – The meaning of the word Life includes Right to live in fair and reasonable condition, Right to live in descent environment and this fundamental right is enshrined under. This article which guarantees right to live with Human dignity and says that No one should be deprived of his Right to life and personal liberty, every individual has a Right to protect their life. Right to livelihood, Right to Privacy, Right to Sleep, and Right to shelter are also a part of this article.
Author: Anjali Thakur,
4th year gitarattan international business school ip university