The Authors, Abhishek Singh and Kirti Talreja are 2nd year law students pursuing BA.LLB from National Law University Odisha.
The 158-year-old IPC Section 497 stated that : "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."
Thus, this law gave a husband the exclusive right to prosecute his wife's lover. However, an equal right was not provided to a wife prosecute her husband or the woman for this crime. Further, the law did not take into account cases where the husband has sexual relations with an unmarried woman. Adultery was a crime and it was punishable by a maximum five years in jail or fine or both. It was highly criticised for it treated women as possession of men.
Section 198 (2) of the CPC also allowed a husband to bring charges against the man with whom his wife has committed adultery.
This law was first challenged in the case of Yusuf Aziz v. State of Bombay. In this case, it was however, held by the court that Section 497 was valid. It was held that “the Section did not give a license to women to commit adultery and that making any such special provision for women under Article 15(3) was constitutionally valid. Additionally, the ideas like “man is the seducer, and not the woman” and “the women cannot commit such crime and could only be a victim of the same” were also relied upon by the Court.
The second landmark judgment in this regard is that of Sowmithri Vishnu v. Union of India wherein it was explained as to why women should not be involved in the prosecution in such cases. It was held “that a man was not allowed to prosecute his wife and it was in consonance in protection of the sanctity of marriage.” In the same way, women could also not be allowed to prosecute their husbands. This judgment retained the offence of adultery as a crime committed by a man against another man. The contention of bringing unmarried woman under the ambit of this law was also rejected by the court. According to the opinion of the Court, to bring such an unmarried woman under the purview of this law would result in getting one woman getting against another woman. Thus, the mystery of this ambiguous law remained unsolved.
The next landmark case was that of V Revathy v. Union of India. The Apex Court held that woman cannot be brought under the adultery law keeping in mind the idea of “Social good”. The main purpose was also to give a chance to the married couple and to preserve the sanctity of the relation. The law was called to be a “shield rather than a sword.”
On the contrary, it was recommended by the 42nd law commission report that the law must be amended and must strive towards a gender-neutral approach in consonance with the constitution of India.
The law was held unconstitutional in India in the landmark case of Joseph Shine v. Union of India. The petitioner was an Indian businessman based in Italy named Joseph Shine who filed a PIL under Article 32 of the constitution challenging Section 497. He contended that the law was not only discriminatory but was also biased in supporting the idea of women as a property of men.
CJI Dipak Mishra while delivering the judgment for himself and 4 other judges, pointed out that the law was also violative of the right to equality under Article 14 and 15 of our constitution and stated that “equality is the need of the hour.” He was also against the idea of considering the husband as the master. He stated that “Adultery should not be a crime. It can be a civil offence, involving penalties, a ground for divorce, but not a criminal offence.”
Justice DY Chandrachud also stated that women cannot and should not be treated as the property of man. Women were looked as subordinates of men, and this belief was not supported by the Court. It was also observed that very nature of the law was discriminatory and also violated the various rights such as right to equality, the right to privacy, the right of sexual autonomy, personal liberty and dignity as guaranteed by the Indian Constitution. It interfered with the private matters of individuals in a society.
He said that “sexuality of a woman was a definitive expression of identity and a part of her inviolable core and neither the state nor the institution of marriage could disparage it.”
This judgment overturned the previous judgments delivered by the Court in this regard. Thus, being against the very nature of our Constitution and the principles of liberty, dignity and equality, section 497 did not pass the constitutional muster.
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