Indian Penal Code - Section 497 - Adultery

Section 497 in The Indian Penal Code, 1860

497. Adultery.-- 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.

Leaving aside the argument that Section 497 discriminates between men and women and is in technically violation of the following articles according to Indian Constitution.

Article 14 states that, "Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth")  and 

Article 15 of Indian constitution states that Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth  

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. 

2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to 

• access to shops, public restaurants, hotels and palaces of public entertainment; or 
• the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

3.  Nothing in this article shall prevent the State from making any special provision for women and children.   

4. Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes"

The Supreme court has passed several judgement during several occasions, that it can not be considered as excuse during the hearing of the "Smt. Sowmithri vishnu vs Union of India & Anr on 27 May, 1985" case and has asked the legislature to consider amendment of the section  appropriately so as to take note of the 'transformation' which the society has  undergone. 

The section 497 does not envisage the prosecution of the wife by the husband for 'adultery'.  It is defined in the section as if it can be committed only by the man and not by woman.  It provides expressly that the wife shall not be punishable even as an abettor.    It states that the wife, who is involved in an illicit relationship with another man, ia a victim and not the author of the cirme.  It is considered as an offence against the sanctity of the matrimonial home, an act committed by man and those men who defile the sanctity are brought within the net of the law.

The law observes the following fee issues.

1.  The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another.

2.  The legislature does not deny the fact that the statement of wife be heard, but Section 497 does not contain a provision for hearing the married women with whom the accused is alleged to have committed adultery.  

we also need to observe that the case cannot be trailed by the state, and the section 198(1)  of the Code of Criminal Procedure, 1973, clearly states that "no court can take cognizance of an offence punishable under Chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offence.  Sub-section (2) of the section 198 provides that, for the purpose of sub-section(1), "no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Penal Code". 

We should all complain that Section 497 is flagrant instance of 'gender discrimination', 'legislative despotism' and 'male chauvinism'. It is urged that the section may, at first blush, appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of 'Romantic Paternalism', which stems from the assumption that women, like chattels, are the property of men.