ADULTERY - SECTION 497

"Adultery law arbitrary," said the Chief Justice of India, Dipak Misra. 

Section 497 deprives women of dignity and that women are treated as property of her husband. The court said any provision treating women with inequality is not constitutional and it's time to say that husband is not the master of woman. Adultery will remain a ground for divorce, the bench added.

The supreme court of India has struck down 158 years law on Adultery in sec 497 of IPC.

what does  IPC sec 497 say?

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.

Background for the judgement 

in October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offence of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC. The CrPc Section 182(2) deals with prosecution for offences against marriages.

On 27.09.2018, a 5 Judge Bench of the Supreme Court unanimously struck down Section 497 of the Indian Penal Code as being violative of Articles 14. 15 & 21 of the Constitution.

Further the court also said that if a person commits suicide due to the adulterous relation of the partner, then it could amount to abetment to suicide if there is sufficient evidence.

Grounds for Divorce?

The existing adultery law under Section 497 gets complicated further in the view of an Amendment Act of 1976. This was the Marriage Laws (Amendment) Act. It makes an act of adultery valid ground for divorce. Either spouse can seek divorce on the ground of adultery

Each religion is governed by its own matrimonial law. Striking down of Section 497 would apply to a Hindu, Muslim, Christian and all other religions in India. However each religion would be governed separately by the respective matrimonial laws.

The Hindu law :  

• Under Section 13 (1) of the Hindu Marriage Act, adultery is described as, " Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse."
• in order to prove adultery, two elements would be necessary-

1. the intention to be adulterous 
2. the opportunity to gratify such an intention. 

• the burden of proof in such cases would lie on the petitioner and it is their duty to show the court that the respondent is guilty.

The Muslim Law: 

• The Muslim Marriage Act does not have any specific provision for adultery. However Section 2 (viii) of the Muslim Marriages Act says that if a man associates himself with a woman of evil repute or leads an infamous life, it amounts to cruelty to the wife.

Kalim Uz Zafar case

the court had held that the term cruelty can be interpreted widely so as to include mental and physical cruelty. Under the concept of Lian in the Islamic laws, when a man accuses a woman of adultery, the wife can bring a claim for dissolution of marriage.

The Allahabad High Court had said that only wives not guilty of adultery can use this concept, and not wives who are in fact guilty. In another ruling the same HC had said that where a man himself committed adultery and then prosecuted his wife for the same, this was a sufficient cause to seek divorce on the grounds of cruelty.

The Christian Law: 

• Section 10(1)(i) of The Divorce Act of 1869 says, "Any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery."
• Earlier only a Christian man could file for divorce on the grounds of adultery.
• For a Christian woman to file for divorce on this ground, it either had to be incestuous or coupled with other grounds like desertion or cruelty.

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