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Section 497 IPC Why It Was To Go

Freedom cannot be achieved unless women have been emancipated from all kinds of oppression. - Nelson Mandela

Introduction
This Article is dedicated to not only to the understanding of Section 497 of the Indian Penal Code, which deals with the offence of Adultery, but also to realising how this now repealed Law, in the guise of providing protection to a woman, deeply impacted the identity of hers and how it eroded her dignity and individuality. We will see in this Article how Section 497 of IPC was a violation of Constitutional provisions and how it affected the individuality of a woman.

Section 497 IPC: What It Says

Section 497 IPC explains Adultery and prescribes its punishment as: 

“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 case the wife shall not be punishable as an abettor.”

We can take out some important elements of this Section from the above wordings:
  1. There must be an act of sexual intercourse between a man (whether married or not) and a woman (married) to another person.
  2. The woman being the wife of such other person
  3. The act of sexual intercourse should be without the consent or connivance of the husband of such woman.
  4. Such intercourse should not amount to the offence of rape.
  5. The person having intercourse with a woman should have the knowledge or reason to believe to be the wife of another man.
If the above essentials are fulfilled, the offence of adultery is completed.

Section 497 IPC: Reasons Why It Was To Go

Section 497 IPC, now repealed, was incorporated in the Penal Code some 158 years ago. Though the ambition behind this law was noble keeping into consideration the situation of women during that time as they were solely dependent on their husbands.

However, knowing that today we have grown and developed into an advanced civilisation, keeping such an archaic law alive even now would not do anything but harm to our society. Therefore, it being repealed was a necessity and the same has been done by the Hon'ble Supreme Court of India.

Now, we should dive deep into the section and understand the real meaning behind it. 

Some important points are discussed ahead for the clear interpretation of this section:
  1. Firstly, Section 497 of IPC makes the husband a victim of the offence of adultery committed on his wife by another man. This means that even though the act of sexual intercourse is committed on a woman, the victim here is her husband and not the woman herself. Because that is exactly the intention behind this Section.
     
  2. Secondly, going with the wordings of this Section “such sexual intercourse not amounting to the offence of rape“. This clearly reflects the element of consent of the woman involved in the act of sexual intercourse with another man. This undoubtedly means that if the woman consented for the act of sexual intercourse with another man then she is equally guilty for the same. However, Section 497 of IPC does not hold the wife guilty for adultery at all, but it's the man who performed such act with her, not being her husband.
     
  3. Adultery, under Section 497 IPC, is a crime which is committed against a husband in respect of his wife by some other man. Here, the agony of the woman(wife), that she goes through post the performance of sexual intercourse with some other man, is completely overlooked by this Section.
     
  4. This section also does not takes into consideration the consent or willingness of the woman. Her say has no importance here.
     
  5. The consent of the husband is of paramount importance under this section. His consent or connivance decides whether the offence of adultery is committed or not. This means that if the act of sexual intercourse was committed with the wife without the knowledge or without the consent of her husband then such act amounts to the offence of adultery. On the other hand, if the husband had knowledge or if he had consented to the act of sexual intercourse to be performed by an other man with his wife, then such act does not amount to the offence of adultery.
     
  6. This section does not provide a wife with any measures to prosecute a woman who commits adultery with her husband, neither does it provides any safeguards to a wife to prosecute her husband if he commits adultery with another woman. This clearly means that the husband has a free license to grow sexual relations with other women.
     
  7. This clearly, depicts that a wife is nothing but a mere property of her husband. It's like when someone steals away a property of another person the kind of misery the latter goes through in such a situation, similar is the case here.
All the points discussed above reflects the deep impression of patriarchy on our society, clearly showing us the reasons as to why this law was to go. It was declared unconstitutional and once and for all was struck off from the statute book by the Hon'ble Supreme Court of India.

Section 497 IPC Violated Constitutional Provisions

The law under Section 497 IPC violated the constitutional provisions under Articles 14, 15 and 21.

The following points shows us the same:
  1. It violated Article 14:
    The law of adultery under section 497 IPC did not provide equal treatment to both the genders i.e the husband and the wife. The wife did not have any safeguard when it comes to claiming for her matrimonial rights in the form of instituting a complaint against her husband if the latter had sexual intercourse with some other woman. Whereas the husband had a complete right to initiate a compliant against the man who had sexual intercourse with her wife. Also, we need to be fair enough, this law also did not see a woman as an abettor in the offence of adultery if she involved herself in the same. When we talk of gender equality or gender neutrality we need to appreciate this point that if a woman is herself an abettor she should face the consequences, but this aspect was missing from the law of adultery.
     
  2. It violates Article 15:
    The entire existence of Section 497 IPC was based on gender inequality. Since this law did not see both the persons (the husband and the wife) as one, so clearly the frailties in this law was but natural. Therefore, this law discriminated on the basis of sex.
     
  3. It violates Article 21:
    Article 21 talks about personal Liberty and dignity. Since, the dignity and the personality of a woman was entirely dependent on her husband, it gave no room to the wife to grow as an individual. She was being treated as a chattel of her husband so there was no question of her personal Liberty and dignity.
So, from above, we can say that this law totally violated three of the most necessary rights guaranteed by the Constitution of India. It's clear as to why this archaic law was to go from the statute book once and for all.

How this law was struck down is discussed ahead, but before that we should see the how it all began.

Important Case Laws

The very first time that the law of adultery under Section 497 IPC was challenged in the Court of Law was in the year 1951. It was the case of Yusuf Abdul Aziz vs The State Of Bombay[1], wherein the Supreme Court held that "The State shall not discriminate against any citizen on grounds only of............... sex."

But what he overlooks is that is subject to clause (3) which runs "Nothing in this article shall prevent the State from making any special provision for women.......... " The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3). It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes.

We are unable to read any such restriction into the clause ; nor are we able to agree that a provision which prohibits punishment is tantamount ,to a licence to commit the offence of which punishment has been prohibited.” The court declared that the law under Section 497 IPC did not violate the constitutional provisions and was a law for the welfare of women.”

Next, another case was decided by the Supreme Court titled as Smt. Sowmithri Vishnu vs Union Of India & Anr[2] in the year 1985 where the court held that “The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law my have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough.”

The court also held that “It is commonly accepted that it is the man who is the seducer and not the woman. This position my have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the 'transformation' which the society has undergone.” So, here also the court took the view that this law is not unconstitutional.”

Then once again this law was challenged in the year 1988 in the case of V. Revathi vs Union Of India & Ors[3] where the court held that “It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex.” Again here the court held that this law is not discriminatory on the basis of sex.”

The Judgement That Changed It All

It was in the year 2018 that the Hon'ble Supreme Court of India through its judgement brought a positive change in the society.

Joseph Shine vs Union Of India[4]  which helped in bringing a new life to the concept of gender equality by judging Section 497 of IPC as unconstitutional and ultimately striking it off the statute book.

The bench consisted of five judges. The petitioner challenged the constitutionality of Section 497 of IPC and Section 198 of CRPC as being violated of Articles 14, 15 and 21 of the Indian Constitution.

The Court held that:
The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception.”

The court also held that:
The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.”

Besides this, the following important points which the Court observed are:
  1. Wives are not the property of the husbands and husbands are not their masters.
  2. Adultery is a private wrong and is a personal matter between a husband and a wife and should not be treated as a crime.
  3. Section 497 IPC denies substantive equality to a woman and is violative of Article 14 of the Constitution.
  4. This section violates the non discrimination clause of Article 15 of India constitution and therefore is violative of this Article.
  5. This article emphasis of the consent of the husband leading to the subordination of wife and therefore is violative of Article 21 of the Constitution.
  6. The husband and wife have equal status in the society and should be given an equal opportunity to put forward their viewpoints.
  7. Adultery is no longer a crime, yet it can be a ground for divorce.
Not only this , the Hon'ble Supreme Court also held unconstitutional Section 198(2) of CRPC which prescribed that it is the husband only who would be considered as aggrieved by any offence punishable under Section 497 or section 498 of IPC and ultimately he would be entitled to institute a complaint under section 198(1) of CRPC.

So, this section also has been declared unconstitutional.

Conclusion
It's always a good thought to progress in a society while taking women along with us because their participation in every way and in every field is so important. We should always strive for a gender equal world as it is fruitful to move together than to move alone.

This is one big step towards an equal tomorrow and I hope to see it soon.

References:
  1. 1954 AIR 321
  2. 1985 AIR 1618
  3. 1988 AIR 835
  4. 27th September, 2018

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