Normally, the sanctity of a matrimonial home is considered paramount in justification of an offence. This usually results in the court overlooking certain aspects which may seem as irrational at the first glance. Sometimes, these matrimonial homes are too ashamed of infidelity in their own houses so much so that they do not report them at all, and sometimes these crimes remain unreported due to fear of injustice. One of these crimes is “adultery”.

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Section 497 of Indian Penal Code reads, “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 a case the wife shall not be punishable as an abettor”. It basically defines adultery as consensual sexual intercourse of a woman with a person other than her husband. The major debate surrounding this section has been that it is violative of Article 14 of the Constitution of India because it discriminates the adulterers on the basis of sex.

Over the years courts have given justifications regarding this matter and different aspects regarding the discrimination have risen from the dust. This contention was first addressed in the case of Yusuf Abdul Aziz v State of Bombay in which the plaintiff, Yusuf Abdul Aziz said that Section 497 of the Indian Penal Code was unconstitutional as it violated Article 14 and 15 of the Constitution holding only men responsible for the offence of adultery. The High Court had upheld the constitutionality of the section by reasoning that the condition of women in this country was such that special legislation was required to alleviate their position. And if women were indulging in adultery it was because they were weak-willed and could easily by lured by men.

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However meaningful and righteous (or supposedly chauvinist) this judgement might have been, we have to admit to the fact that it was still the mid-20th century and India was still recovering from the erstwhile siege of the British rule. The scenario now has changed completely and for the better. Now, women can claim their rights in ancestral property, enjoy reservation in certain areas, occupy high positions in companies and in some cases, although less proportionately, are the breadwinners of the family. Apart from these, the society is filled with ideals of women education, women empowerment, equal opportunities in employment, equal pay for equal work, feminism, et al. The position of women has changed drastically but the Indian society is still tainted by some evils which do not let them reach their full potential. Notwithstanding these evils, sometimes women enjoy unnecessary benefits due to these rustic laws.

Section 497 specifically mentions that women would be exempted from charges relating to adultery. Today, women are usually of their own free will and suggesting that a third person could entice her into having sexual intercourse with him is certainly unconceivable. Also, suggesting that women are properties of their husbands is ridiculous in the sense of its equation to slavery. Besides, the fact that the third person can only be sued by the husband of the woman he had sexual intercourse with is discriminatory in itself. However, if looked into, some of these lacunae are not loopholes in themselves and can be justified to a certain extent.

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The Supreme Court has justified section 497 by citing several reasons. The main objective as stated earlier is preservation of a matrimonial home. The Apex court held that assuming that the right to be heard is concomitant with the principles of natural justice and believing that a trial court allows the married woman to depose her say before it records adverse findings against her, the absence of a provision mandating hearing the adulteress wife in Section 497 does not make the section unconstitutional. The Justice Malimath Committee, relegated the assignment of recommending changes in the criminal justice system of the nation, in 2003 proposed the appropriate correction of Section 497 of the IPC such that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.” The Committee explicitly expressed: “The object of this Section (Section 497 of the IPC) is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).”

Upon being asked for suggestions regarding Section 497, the National Commission for Women stated that “adultery should be converted from a criminal offence, as it currently stands, to a civil offence” and that “Section 198 of the Criminal Procedure Code should be amended in order to allow women to file complaints against unfaithful husbands and prosecute them for their promiscuous behaviour.”

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It is conclusive from the aforementioned suggestions and decisions that laws regarding adultery are justifiable to the extent that they do not promote the breakdown of a marriage. The law is still open to question regarding the right of the wife of the adulterer to sue the adulteress, or to sue the adulterer itself. Also, its language implies that a married man could have sexual intercourse with an unmarried woman or a widow and would not be liable for adultery. Besides, the punishment of five years seems a lot for a law that seeks to save a matrimonial home. The law regarding adultery although justified to a certain extent still needs a lot of improvement. In conclusion, the law should seek to save a marriage while taking into consideration the rights of the other affected parties to sue (apart from the primary couple).

Anushree Malviya,

Dr. Ram Manohar Lohiya National Law University.



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