Adultery is not considered a criminal offence towards women in India and has been in limelight for being discriminatory towards men. At present, Section 497 of the Indian Penal Code is applicable only to men who have sexual relations with a woman, who is not their wife.
Adultery must remain a punishable offence to protect the sanctity of marriage- the Centre
Centre opposed the petition’s demand to scrap Section 497 contending it does not treat men and women equally. In its affidavit to the top court, the Centre said on Wednesday (11 July 2018) that striking down Section 497 which provides for punishment only to a man for having extra-marital sexual ties with the wife of another man, will destroy the institution of marriage.
“It is submitted that striking down section 497 of IPC and Section 198(2) of the CrPC will prove to be detrimental to the intrinsic Indian ethos which gives paramount importance to the institution and sanctity of marriage.
What is adultery under Indian law?
Section 497 of the IPC mandates 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 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.”
Breaking it down what the provision says is: any man who has sexual intercourse with the wife of another man, without the consent of her husband, shall be held liable for the crime of adultery. In other words, sexual intercourse with a married woman amounts to adultery.
The law does not confer any right on women to prosecute the adulterous husband, or the woman with whom the husband has indulged in sexual intercourse with. In simple words, the husband solely has been permitted to prosecute the adulterer.
Why are woman activists and woman organisations maintaining a silence on it? They must explain and come clean on this.
Section 497 of the IPC must be made gender neutral.
Many countries have decriminalised adultery. IPC is the creation of England when they ruled over India for nearly 200 years and it is they who inserted Section 497 as a penal offence. What is more surprising is that England itself has decriminalised adultery and does not treat it as a criminal offence!
Section 198(2) CrPC says that “… 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 said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”
Most countries in the West have decriminalized adultery.
Many western countries, including Austria, the Netherlands, Belgium, Sweden and even Britain from whom we have borrowed most of our laws have already decriminalised adultery.
In Sowmithri Vishnu v/s Union of India (1985), it was argued that Section 497 is violative of Article 14 and 16 of the Constitution. The Supreme Court dismissed the contentions and stated that it is commonly accepted that “it is the man who is the seducer and not the woman,” completely ignoring the other aspect of the section.
Important point to note:-
However, it must be mentioned that only sexual intercourse with a married woman would amount to adultery. Sexual relations with a widow, sex worker or an unmarried woman does not attract this section. This has been confirmed by the Delhi High Court in the case of Brij Lal Bishnoi v/s State (1996).
Source- News 18, The Hindu, The Indian Express, Zee News
Section 497 of IPC: Is it Gender-neutral? Should India, like most nations, decriminalise adultery?
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