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Adultery under Indian Law: A Critical Examination of Section 497 IPC

Overview of Section 497 IPC - Adultery

Section 497 of the Indian Penal Code (IPC) dealt with the offence of Adultery. This provision stated that a man who has sexual intercourse with a woman 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. This meant that only a man could be prosecuted for adultery, and only the husband of the woman had the right to prosecute him.


Key Features of Section 497 IPC

  1. One-sided applicability: The most controversial feature of Section 497 was that it was gender-biased. The law only penalized men committing adultery and provided no remedy for a woman if her husband committed adultery.

  2. Husband's Consent: Another peculiar aspect was the factor of the husband's consent. If the husband consented, the act was not considered adultery. This was criticised for treating women as possessions of their husbands.

  3. Prosecution right: Only the aggrieved husband had the right to prosecute the man involved in the adultery. This further extended the gender bias in the provision.


Landmark Case Law - Joseph Shine vs Union of India

The constitutional validity of Section 497 IPC was challenged in the landmark case, Joseph Shine vs Union of India, 2018. In this case, the Supreme Court of India declared Section 497 as unconstitutional.


The Court noted that Section 497 was manifestly arbitrary and violated Article 14 (Equality before the Law) and Article 21 (Right to Life and Personal Liberty) of the Indian Constitution. The Court held that the provision was archaic and stemmed from societal norms that sought to control the sexuality of women. It was observed that treating women as victims and denying them the right to prosecute was discriminatory.


The Supreme Court also emphasised that any provision treating a woman with inequality is not constitutional and it's time to say that 'husband is not the master'. This case marked a significant step forward for gender equality in India.


Implications of the Joseph Shine vs Union of India Verdict

Following this landmark judgement, adultery is no longer a criminal offence in India. However, it remains a valid ground for divorce under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. This means that while a person can no longer be prosecuted and sent to jail for adultery, the act can still lead to marital discord and be a reason for the aggrieved spouse to seek a divorce.


Conclusion

The decriminalisation of adultery under Section 497 IPC was a significant milestone towards achieving gender justice in India. It highlighted the need for laws to evolve with the times, reflecting changing societal norms and values. While adultery is no longer a crime, it is essential to understand that it can still have serious implications on the marital relationship and can be a ground for divorce.

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