Adultery: Sec 497 and Supreme Court Judgement Explained

Of late, Supreme court has delivered momentous judgements based on the bedrock of Individual liberty and freedom. The recent one is the Adultery judgement. The question before the court was whether sec 497 of IPC stands the test of constitutional morality or not. A plain reading of the sec 497 gives a sense of gross gender discrimination and outright breach of article 14 of the constitution. Sec 497 as it stood before this judgement was:

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.

To understand what Sec 497 meant let's refer to below image:

According to now non est sec 497:

1. A sexual relationship between a Husband and an unmarried woman was lawful as long as it was consensual.(i.e. Relationship 1)
2. A sexual relationship between Wife and unmarried man was lawful if it was consensual and it was with the consent of Husband ( Relationship 2 was lawful if Husband of Q i.e. P had given his consent for the same)
3. A sexual relationship between Wife and other Married man is lawful if it was consensual and if the husband of a wife gives consent for the same. ( i.e. in Relationship 3, K and Q can enter into a Sexual relationship if Husband of Q i.e. P gives consent for the same)

Section 198(2) of CrPC states that:

(2) For the purposes of sub- section (1), 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 com- mitted may, with the leave of the Court, make a complaint on his behalf.

These above-mentioned provisions in IPC and CrPC are discriminatory on the following counts:

1. Wife is treated as a chattel who is to be owned by the husband. She can be shared with the permission of husband.
2. Wife is too innocent to have committed a crime. She is considered gullible enough to be lured. No punishment falls upon her even though she has committed the same 'crime'.
3. Only the Husband can be the aggrieved party and can, therefore, file a complaint. Wife has no right to feel aggrieved( i.e. in relationship 2, P can file a complaint against K but L cannot file a complaint against Q. Similarly w.r.t relationship 1, Q cannot file a complaint against X or w.r.t relationship 2, P can file a complaint against Y)

Supreme court in its judgement has struck down both sec 497 as well as Sec 198 of CrPC. That translates to the fact that Adultery is no longer a criminal offence. Adultery however still remains a civil offence and ground for divorce.