CRIMINAL LAW

CIA III

Section 497: Adultery

Should it be Gender
Neutral?

Submitted By:
Vinayak Padmakshan
1316460

6 BBA LLB B
INTRODUCTION

Adultery means voluntary sexual intercourse of a married person other than with spouse. The
legal definition of adultery however varies from country to country and statute to statute. While
at many places adultery is when a woman has voluntary sexual intercourse with a person other
than her husband, at other places adultery is when a woman has voluntary sexual intercourse
with a third person without her husbands consent. The Hindu Marriage Act defines it as a
ground for divorce as any person who has, after the solemnization of the marriage had voluntary
sexual intercourse with any person other than his or her spouse.1

Though the modern trend is to decriminalize adultery, historically, many cultures have regarded
adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their
condemnation of adultery. In most cultures both the man and the woman are equally punishable.
However, according to ancient Hindu law only the offending female spouse could be killed and
men were not heavily punished.2

In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC),
1860. As it stands, this Section makes only men having sexual intercourse with the wives of
other men without the consent of their husbands punishable and women cannot be punished even
as abettors. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd
Report of the Law Commission of India recommended redefining Section 497 to make women
also punishable for adultery. The Central Government accordingly has sought the views of all the
30 states in the country regarding the implementation of the said recommendations.
1 Section 13 (i) (ia) of The Hindu Marriage Act 1955
2 Manusmriti; Chap.V, Verse 154; Chap. VIII, Verse 371.

AN ANALYSIS OF SECTION 497

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 husbands 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 Aziz3 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. With respect to Article 14, the Court said that sex is a sound classification and
although there can be no discrimination in that ground, the Constitution itself provides for
special provisions in the case of women and children.
3 Yusuf Aziz v. State of Bombay AIR 1954 SC 321

In the cases of Sowmithri4 and V.Revathi5 it was held that it is the policy of the law to not to
punish women for adultery and policies could not be questioned. The court was of the opinion
that adultery was an offence against the matrimonial home and not either against the wife or the
husband.

Adultery cannot be committed without a womans 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. This follows the archaic law of the women being a property of man
and she can be taken away from his possession. 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 husbands 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.

Complainant of an offence of adultery has to provide strict proof of marriage. Mere fact that
parties were living together as husband and wife and giving birth to their progeny and mere
assertion that parties were living as husband and wife cannot be used as sufficient proof of
marriage between the parties. Therefore, if the parties failed to prove the existence of marriage,
the basic ingredients of S. 497 cannot be met out and thus accused entitled to acquittal.6 Again,
the adultery is only happened in case of valid marriage. Thus there must be wedded marriage
relationship, not merely consented, or live-in relationship cannot exist.

4 Sowmithri Vishnu v. Union of India AIR 1985 SC 1618

5 V. Revathi v. Union of India AIR 1988 SC 835
6 Brij Lal Bishnoi v. State 1996 Cri. L. J. 4286

If the conduct of the complainant suggests that he fails to take proper steps to prevent the
adultery, this defeat his plea of saying the absence of consent or connivance on his part. In spite
of this knowledge if the complainant had failed to take steps to prevent sexual intercourse
between the accused and his wife, such conduct on the part of the complainant would give rise, it
is claimed, to the presumption that he had connived at the accused having sexual intercourse with
his wife, though, such presumption does not seem to be necessary at all in a criminal case where
the onus is laid on the complainant to prove the ingredients of the offence against the accused. it
is essential that the complainant should show against the particular person who is made the
accused that his sexual intercourse with the complainant's wife was without the complainant's
consent or connivance, notwithstanding the fact that the complainant might or might not have
consented or connived at the sexual intercourse which other persons might have had with the
complainant's wife earlier or later than the complaint. In order to make the accused liable to
punishment, the complainant must show that that particular accused had sexual intercourse with
his wife without his consent or connivance.7

REASON FOR DISCRIMINATION

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.

7 C.S. Subramaniam v. Unknown AIR 1953 Mad 422, (1953) IMLJ 236

The decisions of the Court have always held 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 someones
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 mans property.

NCW RECOMMENDATIONS

The National Commission on Women (NCW) in its report has leveled an argument against the
existing provision of S. 497 of the IPC. Expressing its lament attitude, it expressed that the
existing provision in the IPC is based on the mindset that the wife is a personal possession of the
husband, who is the sole aggrieved person in an incident of adultery. On this line, the
Commission has recommended suitable amendments to Section 198(2) of the Criminal
Procedure Code, which as of now disqualifies the wife of an unfaithful husband from
prosecuting him for his promiscuous behaviour.

The Commission also has said adultery should be treated as a civil wrong and not a criminal
offence. It is of the view that there may be many instances where the woman wants to save the
marriage and sees the adulterous relationship as an aberration. This argument is appeared to be
sound, mature, strong and imbibe the solution amicable to modern society. However, analysis of
this argument will be dealt under the separate heading of this paper.

DECRIMINALISED ADULTERY
Marriage is both, a sacrament and a civil contract and the society has certain notions about the
same. Yet, it is not a standard form contract. The spouses are and should be at a liberty to choose
their own terms of the contract. Therefore, whether they allow each other to have or maintain
sexual relations with third parties should be at the sole discretion of the parties alone. Making
provisions in Penal law to regulate civil contracts and particularly the contract of marriage,
which is private and personal, is unwarranted.
One thing shall be taken into consideration that adultery under the Indian legal system
committed when even the wife of the husband has her consent for the adulterous relationship
with the man who is other than her husband. If the wife does not have her consent for the
adulterous relationship, the offence does not met out u/s 497 of the IPC and it would fall under S.
376. Therefore, for an offence of adultery, consent of the woman is necessary corollary. This
again raised another argument that when the adultery is a consented act between two persons of
opposite sex having living spouse at the time of adulterous act does not it violate and appeared to
be irrational that the offender is always be a male and the woman, even though she may be an
abettor, shall not be prosecuted for the offence of adultery? These arguments strongly advocate
the complete deletion of provision of adultery from the penal statutes, though it may be retained
to have civil remedies.
Punishment to the person committing adultery is not and cannot be a remedy for a person
aggrieved of adultery. The object of prosecution for adultery is more often to reach a settlement
with the offender at the mercenary level and seldom to send the offender to jail. In fact this was
the very reason why the offence of adultery did not figure in the very first draft. To this extent,
the conditions are not appreciably different even today. The existence of Section 497 has no
apparent affect on society. Acknowledging this most western countries have decriminalized
adultery. It is not a crime in most countries of the European Union, including Austria, the

Netherlands, Belgium, Finland, Sweden and even Britain from whom we have borrowed most of
our laws. In the United States, in those states where adultery is still on the statute books,
offenders are rarely prosecuted.

CONCLUSION

When Section 497 was enacted there were no codified personal and matrimonial laws like today
but they were unequal and inoperative. Over the years polygamy has become illegal while
monogamy has become prevalent. Today the personal laws are equal, operative, effective and
efficient. The definition of adultery in matrimonial laws is much wider in scope that the
definition of adultery as a crime. To practice polygamy or have extramarital relationships without
attracting civil action is almost impossible.
The feminist jurisprudence helps in making the women more empowered, the provision that
imbibe the protectionary prejudice attitude towards this patriarchal class loses its relevance.
Therefore, in the modern context such prejudice provisions needed to be brought on the line of
gender neutrality. In the modern era when the society is too liberal with the sexual offences and
gender equality is order of the day, the provision of adultery has opened for debate. To some
extent, the gender neutral version of the provision of adultery as recommended by Mallimath
Committee and Law Commission would be appeared to be more logical, incidental, relevant and
able to serve better purpose, but looking to the various context, social reality, it may be said that
its complete deletion from the penal statutes serve better purpose.