Freedom cannot be achieved unless women have been emancipated from all
kinds of oppression.
- Nelson Mandela
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realising how this now repealed Law, in the guise of providing protection to a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
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
We can take out some important elements of this Section from the above
- There must be an act of sexual intercourse between a man (whether
married or not) and a woman (married) to another person.
- The woman being the wife of such other person
- The act of sexual intercourse should be without the consent or
connivance of the husband of such woman.
- Such intercourse should not amount to the offence of rape.
- 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Section 497 IPC, now repealed, was incorporated in the Penal Code some 158 years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
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 Therefore, it being repealed was a necessity and the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
Some important points are discussed ahead for the clear interpretation of
- 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.
- 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
- 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.
- This section also does not takes into consideration the consent or
willingness of the woman. Her say has no importance here.
- 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.
- 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.
- 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
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:
- 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.
- 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.
- 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
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, wherein the Supreme Court held that "The
State shall not discriminate against any citizen on grounds only
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
 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
Then once again this law was challenged in the year 1988 in the case of V.
Revathi vs Union Of India & Ors
 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
 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
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:
- Wives are not the property of the husbands and husbands are not their
- Adultery is a private wrong and is a personal matter between a husband
and a wife and should not be treated as a crime.
- Section 497 IPC denies substantive equality to a woman and is violative
of Article 14 of the Constitution.
- This section violates the non discrimination clause of Article 15 of
India constitution and therefore is violative of this Article.
- This article emphasis of the consent of the husband leading to the
subordination of wife and therefore is violative of Article 21 of the
- The husband and wife have equal status in the society and should be
given an equal opportunity to put forward their viewpoints.
- 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.
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.
- 1954 AIR 321
- 1985 AIR 1618
- 1988 AIR 835
- 27th September, 2018