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According to section 497 of the Indian Penal Code 1860 - "Adultery is 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 offense of rape, is guilty of the offense 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 India, the law of adultery is criminal under section 497 of the IPC; however, the code's writers did not make adultery a punishable offense; it was the Second Law Commission, after due deliberation of the topic, that concluded that it was not appropriate to omit this offense from the code. Adultery is a crime in many countries, and its absence from English law has been criticized by some of the country's most prominent lawyers.

When compared to the misconduct of adultery as understood in divorce proceedings, the offense of adultery under Section 497 has a very limited scope. The offense is only committed by a male who has sexual intercourse with another man's wife without the man's knowledge or consent.

The wife is not prosecuted for adultery or for assisting and actively supporting the act. Section 198 of the Criminal Procedure Code defines a "person aggrieved." Subsection (2) considers the woman's husband to be harmed by an offense under Section 497 IPC, and in the absence of the husband, any person who was caring for the woman on his behalf at the time the offense was committed, with the court's permission. It does not regard the adulterer's wife to be a victim.

In a prominent case of Sowmithri Vishnu vs. Union Of India
(1985 AIR 1618), Chief Justice of India said that it is commonly accepted that the seducer is the man and not the woman.

However, sexual contact with an unmarried woman or widow has not been deemed adultery. Adultery is a crime committed against the husband, not the wife.

When we take a look at adultery from a religious point of view, In Hinduism, even in earlier days when a woman was not advised to take divorce and was looked down upon if she did so, the act was adultery was not acceptable.

And in the Quran, adultery is considered to be a sin and was served with the penalty of one hundred lashes and being stoned to death, but it is not the same in today's time as we now believe in the humane treatment of people. Also, in Christianity, Adultery is equal to homicide.

Defect In Section 497

We can clearly see that the law of adultery discriminates on the basis of gender and only punishes a man for the offense and gives the green chit to the woman who was an equal partner in the act committed. Earlier it was reasoned that women are weaker and hence should be protected, and it was also said that it is only the man who seduces the girl, not vice versa. Section 497's validity was challenged in the case of Yusuf Abdul Aziz vs. the State of Bombay.

(Yusuf Abdul Aziz v. State of Bombay (1954) SCR 930)

Because it breaches Articles 14 and 15 by claiming that a woman cannot be a culprit or even an accomplice, a three-judge bench confirmed the constitutionality of the abovementioned provision since it is a specific provision intended for women and is safeguarded by Article 15. (3). And, because Article 14 is a general law that must be interpreted in connection with other provisions, and sex is just a categorization, it is legitimate when both are combined.

Considering the prevailing scenario and the tremendous upheaval that society has experienced, thinking that the man is the seducer and not the woman is a risky idea; the shoe is now on the other leg in a lot of scenarios. The law establishes an unreasonable distinction between man and woman by confining the class of offenders to males, despite the fact that women or wives are equal partners, and thus contradicts constitutional prohibitions stated in Articles 14, 15, and 21.

In the offense of adultery, only a man with whose wife any man has had intercourse can bring the suit into action. A woman cannot bring a suit if his husband has sex with other women. This section considers a woman to be merely a property that a man owns and has full rights over.

This section also affects a dignity of a woman as it states that if the husband gives consent to the sexual act of his wife, it will not be considered to be an adulterous act. Here again, the consent of a woman does not matter.

All these defects are corrected and decriminalized adultery in the case of (Joseph Shine vs. Union of India).

Under Article 32 of the Constitution, Joseph Shine initiated a public interest lawsuit (PIL). The petition questioned the validity of the adultery offense under Section 497 of the IPC and Section 198(2) of the CrPC. He said that it discriminated against males by holding them exclusively accountable for illicit affairs while considering women as commodities.

In this case, the Supreme Court ruled that:
The law only regards the husband as an aggrieved party with the right to pursue the act, whereas the wife has no such right. The provision is not founded on the notion of equality. Hence violating article 14

This law discriminates against a married woman based on her gender. This clause is founded on the misconception that a husband has total control over his wife's sexuality and that she is his property. Because it is gender biased and reinforces the stereotype of a husband managing his wife's sexual liberty, the provision breaches Article 15(1) of the Constitution.

The clause allows for adultery with the husband's permission or connivance, providing a male power over his wife's sexual autonomy. When women are seen as victims, their uniqueness suffers, and their existence without their spouse is called into doubt. Forced fidelity is enforced by limiting sexual autonomy, which violates Article 21's basic right to dignity and equality.

Adultery is a crime that can lead to up to 5 years in jail for a third person. This is not needed, according to the court. This law designates a spouse as a sufferer and a wife as an aggrieved party. Even if the law changes to provide women equal protection against adultery, it remains entirely private. Adultery should be seen as a valid basis for divorce rather than a criminal offense. Under Section 497 of the Indian Penal Code, adultery can now be used as the foundation for any civil wrong, including divorce.

Prior adultery not only differentiates between men and women, but it also lowers a woman's dignity. When society was saturated with male patriarchy and moralism, this was introduced as an offense. Women were regarded as not belonging to that culture, and they did not get the same rights and privileges as males. And married women were not viewed as individuals but as the possession of their husbands, as indicated by the provision for adultery.

However, things have transformed, and women are no more shrouded in the shadows of males. Adultery is not a criminal offense since it is a private affair in which the courts should not participate. Interfering with an individual's sexual autonomy would be a breach of constitutional standards. Interfering with an individual's sexual autonomy would be a breach of constitutional standards.

The Joseph Shine decision decriminalizes adultery and permits it to be used exclusively as a foundation for civil wrongs.

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