The criminality associated with adulterous relationships has hit the headlines again as the Supreme Court has decided to re-examine the constitutional validity of Section 497 of the Indian Penal Code, 1897 (IPC). The dictionary meaning of adultery is “voluntary sexual intercourse between a married person and someone other than his or her lawful spouse”. However, this is not how the IPC envisions adultery. A mere reading of section 497 would leave one with many bewildering thoughts and ironies of morality and gender inequalities1.
Section 497 also upholds the religious and biblical notions of marriage by penalizing adultery. Section 497 presents a very interesting interplay of human relationships and matrimonial sanctity. It provides no remedy to either of the spouses against the unfaithful one. On the contrary, it punishes the man who seduces a married woman.
Interestingly, from time to time, section 497 was challenged in the courts for being discriminatory to both men and women for different reasons. While men challenged the statutory immunity accorded to women from being charged as an abettor of the crime; women sought equal rights to prosecute the other woman who wrecks their house.
In as early as 1954, the constitutional validity of section 497 was challenged in the matter of Yusuf Abdul Aziz vs. The State of Bombay and Husseinbhoy Laljee2 for being discriminatory on the grounds of sex. However, the Apex Court justified the statutory immunity granted to women section 497. The Court was of the opinion that “Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification….., the Constitution itself provides for special provisions in the case of women and children.”.
Decades later, the Apex Court witnessed a highly emotive discourse around 497 in the matter of Sowmithri Vishnu Vs. Union of India (UOI) and Anr.3, where Mrs. Nalini Chidambram argued against section 497 for unjustifiably denying to women the right which is given to men. She further argued 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”.
The Court, while dismissing the petition, touched upon some critical legal as well as social issues. The Hon’ble Court clearly differentiated between the idea and the remedy for adultery under the civil and the criminal law. While the civil law allows both the spouses to seek divorce on the ground of adultery, the criminal law punishes neither of them. The Court also conformed to the social biases and beliefs of that age by accepting that only a man can be the seducer. While the court acknowledged that the society has undergone a transformation, it left the decision to to amend or to retain section 497 to the legislature.
Like it or not, section 497 has lived through the ages, social changes and most importantly, the test(s) of constitutional legitimacy. Very recently, the Supreme Court has initiated a fresh debate on the matter while admitting a PIL challenging the constitutional validity of the same. It would be interesting to see whether this debate unfolds into expansion of the section to include women in its purview, or status quo or a complete deletion of section 497.
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