i

Indian Penal Code Project

On

Critical analysis of Section 497 of India Penal Code

Submitted to:

Mr. Manoj Kumar

Submitted By:

Anant Ekka

Roll no. 26

Section A

Semester V, B.A. LLB (Hons.)

Submitted on: 28/11/2018

Hidayatullah National Law University

Uparwara, Abhanpur, New Raipur (C.G.)

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Declaration
I, Anant Ekka, of Semester V, Section A, declare that this project submitted to H.N.L.U., Raipur
is an original work done by me under the guidance of Mr. Manoj Kumar, Faculty of Indian Penal
Code. The work is a bona fide creation done by me. Due references in terms of footnotes have
been given wherever necessary.

Anant Ekka

Roll No. 26
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Acknowledgements
I feel elated to work on the project “Critical analysis of section 497 of Indian Penal Code.” I
express my deepest gratitude towards Mr. Manoj Kumar, Faculty of Indian Penal Code, to
provide me with the opportunity to work on this project. His able guidance and supervision were
of extreme help in understanding and carrying out the nuances of this project.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Anant Ekka

Roll No. 26

Section A, Semester V
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Table of contents
1. Declaration ii

2. Acknowledgments iii

3. Introduction 1

4. Research methodology 2

5. Law of Adultery and its essentials 3

6. 3 past supreme court judgments on adultery law 7

7. Decriminalization of adultery 10

8. Conclusion 14

9. References 15

10.
 1

Introduction
Adultery means voluntary sexual intercourse of a married person other than with spouse. The
legal definition of adultery however varies from country to country and statute to statute. While
at many places adultery is when a woman has voluntary sexual intercourse with a person other
than her husband, at other places adultery is when a woman has voluntary sexual intercourse
with a third person without her husband’s consent.

Though the modern trend is to decriminalize adultery, historically, many cultures have regarded
adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all unequivocal in their
condemnation of adultery. In most cultures both the man and the woman are equally punishable.
However, according to ancient Hindu law, in ancient Greece and in Roman law, only the
offending female spouse could be killed and men were not heavily punished.

In India the offence of adultery is punishable under Section 497 of the Indian Penal Code (IPC),
1860. As it stands, this Section makes only men having sexual intercourse with the wives of
other men without the consent of their husbands punishable and women cannot be punished even
as abettors. The Report of the Malimath Committee on Criminal Justice Reforms and the 42nd
Report of the Law Commission of India recommended redefining Section 497 to make women
also punishable for adultery.

The Central Government accordingly has sought the views of all the 30 states in the country
regarding the implementation of the said recommendations. This paper attempts to establish the
redundancy of Section 497 in the light of Personal and Matrimonial laws and changing social
conditions subsequently making a case against amending and for completely deleting Section
497 from the IPC.
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Research Methodology

Objectives:

The objectives of this project are:

1. To study about adultery and its provisions under Indian penal code.
2. To study about the past judgments on adultery law.
3. To study about the recent case which decriminalized the adultery law?

Methodology:

This research project is descriptive in nature. Accumulation of the information on the topic
includes wide use of primary sources such as cases as well as secondary sources like books,
articles, websites etc. The matter from these sources have been compiled and analysed to
understand the concept.
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Law of Adultery and its essential

Adultery is no longer a crime in India after another landmark ruling in the case of Joseph Shine
v. Union of India but firstly we should understand law of adultery given under section 497 of
Indian Penal Code and 3 past Supreme Court judgements on adultery law.

Adultery Law is an instrument that governs all aspects of human life. Sexual relations between
individuals are also covered by the same. The Indian Penal Code (hereinafter, ‘the IPC’) lays
down various provisions for the same. One such law is the law of adultery. The provision
punishes a person for having sexual relations with the wife of another man.

The cognizance of this offence is limited to adultery committed with a woman married to another
man, and the male offender alone is liable to be punished. Thus, adultery is an offence
committed by a third person against the husband in respect of his wife. It is not necessary that the
adulterer should know whose wife the woman is, provided he knew she was married.

According to Section 497 of Indian Penal Code, 1860, Adultery is defined as “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.”

Essentials of adultery:

The provision requires the following essentials:

1. Sexual intercourse by a man with a woman who is and whom he knows or has reason to
believe to be wife of another man.
2. Such sexual intercourse must be without consent or connivance of the husband.
3. Such sexual intercourse must not amount to rape.
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SEXUAL INTERCOURSE

A man having sexual intercourse with a married woman is an essential ingredient of the offence.
So where the wife went over to the shop of the accused to have sexual intercourse, but was at
once followed and entrapped, it was held that her act did not go beyond the stage of preparation
and hence this section was not attracted. Similarly, when an accused was provided with a
married woman to pass the night with, and before the accused could have sexual intercourse with
the woman, the husband intervened and took her away, the accused was held not guilty under
this section.

Though proof of sexual intercourse is essential for the offence of adultery, it can rarely be proved
by direct evidence. It has to be inferred from the facts and circumstances of a case.1 However, the
circumstances must be of such a nature that they fairly infer that sexual intercourse took place. 2
Evidence of opportunities sought for and obtained and of undue familiarities, which point
strongly to an inference of guilt, is sufficient to establish the fact of sexual intercourse. 3 The
entire background and context of the case needs to be taken into consideration for ascertaining
sexual intercourse.4

WOMAN MUST BE MARRIED

The section indicts sexual intercourse by a man, who is the wife of another man. The factum of
lawful marriage must be strictly proved. Sexual intercourse with a prostitute, an unmarried
woman, a widow, therefore, does not amount to adultery under the IPC. Even sexual intercourse
with a woman who lived with another man without marriage and has got children from him does
not amount to adultery, as she is not ‘wife of another’.5
1
Kashuri v Ramaswamy (1979) Cr LJ 741 (Mad)
2
WJ Phillips v Emperor AIR 1935 Oudh 50
3
Vedavalli v MC Ramaswamy AIR 1964 Mys 280
4
AS Puri v KC Ahuja AIR 1970 Del 214, (1970) Cr LJ 1441 (Del)
5
Brij Lal Bishnoi v State (1996) Cr LJ 4286 (Del)
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KNOWLEDGE

In order to be brought within the purview of this section, a man should not only have intercourse
with a married woman, but he must also ‘know’ or have ‘reason to believe’ that such a woman is
the ‘wife of another man’. This does not mean that he should know the identity of the husband. It
is sufficient if he knows or has reason to believe that the woman is married. Such ‘reason to
believe’ may arise from the fact that in the case of a Hindu woman, outward insignia of married
life are exhibited by wearing mangalsutra, the application of kumkum in the parting of hair, use
of bangles, toe rings, etc. The prosecution should establish the presence of such knowledge or
reasonable belief. It constitutes mens rea and the prosecution should place sufficient material
before the court to prove that the accused had knowledge or reasonable belief that the woman
was married.

CONSENT OR CONNIVANCE OF THE HUSBAND

Another requirement of law is that the adultery complained of has not been committed either
with the consent or connivance of the husband. This is based on the principle of volenti non fit
injuria, meaning ‘what is consented to cannot injure’. 6 Such consent can be express or implied.
‘Connivance’ is a figurative expression that indicates a voluntary blindness to some act or
conduct, which is known to be going on without protest or desire to interfere with or to disturb. If
the husband was fully aware of the fact that his wife was committing adultery but did not do
anything to stop the same, then the adulterous relationship may be considered to have been
committed with acquiescence,7 and therefore no offence can be said to have been committed. The
absence or presence of consent or connivance can be inferred from the circumstances of the case.
Strict proof of the same is not necessary.8

6
Re CS Subramaniam AIR 1953 Mad 422
7
Pothi Gollari v Ghani Mondal AIR 1963 Ori 60, (1963) Cr LJ 312 (Ori)
8
State of Rajasthan v Bhanwaria AIR 1965 Raj 191, (1965) Cr LJ 673 (Raj)
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SHOULD NOT CONSTITUTE RAPE

The offence of adultery by its very nature connoted that it is sexual intercourse between two
consenting adults. The woman, although married, must be a willing partner to the sexual
intercourse. However, if the accused has sexual intercourse without the consent of the woman,
then it is a much more graver offence and it would amount to rape. Here, the consent or
connivance of the husband is immaterial. Consent of the woman is primary. If her consent is
absent, then it will amount to an act of rape, punishable under s 376 of the IPC. Adultery is not
an offence under the English Law, and some of the most celebrated English Lawyer have
considered its omissions from the English Law to be a serious defect. The cognizance of this
offence is limited to adultery committed with a married woman, and the male offender alone had
been made liable to punishment. Thus, under the Indian Penal Code, adultery an offence
committed by a third person against a husband in respect of his wife. It is not committed by a
man who has sexual intercourse with an unmarried woman, or with a widow, or divorced woman
or even with a married woman whose husband consents to it. It must be noted that wife can be
punishable as an abettor. It is now felt that, with the advance of civilization, it would be more
consonant with Indian ideals, if the woman also is punished for adultery.

DEFENCES AVAILABLE TO ACCUSED

The following defences are available to the accused of adultery-

1. There was not sexual intercourse.

2. The accused did not know the woman to be the wife of another;
3. The husband of the woman consented to or connived at the act of intercourse; or
4. The complainant was neither the husband of the woman nor any other person permitted to
prefer such complaint under Cr.P.C.

The punishment for adultery is the imprisonment for five years, or fine or both.
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3 past Supreme Court judgments on adultery law

The Supreme Court has declared that Section 497 is unconstitutional. Adultery is not a crime.
This judgment has overturned the three previous rulings by the Supreme Court on Section 497.

Adultery is no longer a crime. The judgment given by five judge Supreme Court bench headed
by Chief Justice Dipak Misra has overturned the previous three rulings on the matter.

Under Section 497 of the Indian Penal Code (IPC) Adultery was an offence and a convict could
be sentenced to five-year-jail term. Section defined adultery as an offence committed by a man
against a married man if the former engaged in sexual intercourse with the latter's wife.

The law had come under sharp criticism for treating women as possession of men. An Italy-
based Indian businessman Joseph Shine, who hails from Kerala, filed a Public Interest Litigation
(PIL) challenging IPC Section 497. He contended that the law is discriminatory.

Section 497 reads: "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."

Section 497 used to be read with Cr.P.C. Section 198(2) in the matters of prosecution for
offences against marriage. The combined reading of the adultery laws allowed the aggrieved
husband of the married woman in adulterous relationship to file a complaint. But same right was
not available to an aggrieved wife if her husband was found to be in an adulterous relationship

FIRST SUPREME COURT JUDGMENT

The adultery law first came under challenge in 1951 in the Yusuf Aziz v. State of Bombay9
case. Petitioner contended that the adultery law violated the fundamental right of equality
guaranteed under Articles 14 and 15 of the Constitution.

9
AIR 1951 Bom. 470
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The dominant argument in the court hearing was that Section 497, governing adultery law,
discriminated against men by not making women equally culpable in an adulterous relationship.
It was also argued that adultery law gave a license to women to commit the crime.
In 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497 did not
give a license to women to commit adultery. The judgment said that making a special provision
for women to escape culpability was constitutionally valid under Article 15(3) that allows such a
law.
Moreover, in an interesting observation, the Supreme Court said in the judgment that "it is
commonly accepted that it is the man who is the seducer, and not the woman." The Supreme
Court stated that women could only be a victim of adultery and not a perpetrator of the crime
under Section 497.
The argument was made to reject the contention that the adultery law was discriminatory against
men. However, despite declaring women as "victim only" in the occurrence of the crime of
adultery, the court did not allow them to file a complaint.

SECOND SUPREME COURT JUDGMENT

The next important judgment regarding adultery law under Section 497 came in Sowmithri
Vishnu v. Union of India case of 1985. The Centre has cited this judgment in its 2018-affidavit
to back Section 497 of the IPC.
In Sowmithri Vishnu case, the Supreme Court held that women need not be included as an
aggrieved party in the name of making the law even handed. It also explained as to why women
should not be involved in prosecution in the cases of adultery.
The Supreme Court held that men were not allowed to prosecute their wives for the offence of
adultery in order to protect the sanctity of marriage. For the same reason, women could not be
allowed to prosecute their husbands. The judgment retained the offence of adultery as a crime
committed by a man against another man.
The Supreme Court also rejected the argument that unmarried women should be brought under
the purview of the adultery law.
The argument was that if an unmarried man establishes adulterous relationship with a married
woman, he is liable for punishment, but if an unmarried woman engages in a sexual intercourse
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with a married man, she would not be held culpable for the offence of adultery, even though both
disturb the sanctity of marriage.
The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law
under Section 497 would mean a crusade by a woman against another woman. The ambiguity
related to adultery law remained unresolved.

THIRD SUPREME COURT JUDGMENT

In the next big case V Revathy v. Union of India10 of 1988 on adultery law, the Supreme Court
held that not including women in prosecution of adultery cases promoted "social good". It
offered the couple a chance to "make up" and keep the sanctity of marriage intact.
The Supreme Court observed that adultery law was a "shield rather than a sword". The court
ruled that the existing adultery law did not infringe upon any constitutional provision by
restricting the ambit of Section 497 to men.
Besides the three Supreme Court judgments, there were two more important legal views in
connection with adultery law.
The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on
Criminal Law Reforms of 2003 recommended amendment to the adultery law. Both argued to
make Section 497 of the IPC gender neutral.
Trivia: The Supreme Court bench that dismissed a plea challenging Section 497 had Justice YV
Chandrachud on it. Current Supreme Court bench hearing the adultery law case had his son
Justice DY Chandrachud on it.
It was Justice DY Chandrachud, who made the observation that women could not be treated as
commodity by leaving them to the discretion of their husbands in giving consent in matters of
adultery. The Supreme Court said in August this year that Section 497 as anti-women to dismiss
the argument that the adultery law discriminated against men.

10
1988 AIR 835, 1988 SCR (3) 73
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Decriminalisation of Adultery
On 27 September 2018, a five-judge bench of the Supreme Court struck down Section 497 of the
Indian Penal Code (IPC), and decriminalised adultery in India (it remains a “civil offence”, that
can be a ground for divorce). The judgment is important not simply because it got rid of an
archaic and patriarchal law, but also because of its consequences for the future.

The Supreme Court has struck down 158 year old Section 497 of the Indian Penal Code, which
criminalizes adultery, as unconstitutional.
“Any provision of law affecting individual dignity and equality of women invites wrath of
constitution. It’s time to say that husband is not the master of wife. Legal sovereignty of one sex
over other sex is wrong”.

Section 497 punished a married man for having sex with wife of another man. However, the
sexual act is exempted from punishment if it is performed with the consent or connivance of the
husband of the other woman. Also, the provision exempts the wife from punishment, and states
that wife should not be even treated as an abettor.

The judgment of CJI Misra held that Section 497 violated a woman’s right to dignity, resulting in
infringement of Article 21 of the Constitution of India. The judgment borrows from the findings
of Justice Nariman’s judgment in Triple Talaq case.

The Court however clarified that adultery will be a ground for divorce. It was also stated that if
an act of adultery leads the aggrieved spouse to suicide, the adulterous partner could be
prosecuted for abetment of suicide under Section 306 of the IPC.

The judgment also struck down Section 198(2) of the Code of Criminal Procedure, as a
consequence of striking down of Section 497 IPC.

Justice R F Nariman wrote a separate judgment to concur with the judgments of CJI Mira and
Justice Khanwilkar, and stated that Section 497 was an archaic provision which had lost its
rationale. “Ancient notion of man being the perpetrator and woman being victim of adultery no
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longer holds good”, observed Justice Nariman. It treats women as chattel, and has chauvinistic
undertones.

Justice Chandrachud in his separate but concurring opinion said that Section 497 was destructive
to woman’s dignity. “Autonomy is intrinsic in dignified human existence.497 denuded the
woman from making choices.The law in adultery is a codified rule of patriarchy.Society
attributes impossible attributes to a woman, Raising woman to a pedestal is one part of such
attribution”, he said.

“Respect for sexual autonomy must be emphasized.Marriage does not preserve ceiling of
autonomy 497 perpetrates subordinate nature of woman in a marriage”, these were his
concluding remarks.
Justice Indu Malhotra noted in her judgment that the Section institutionalized discrimination.

Background of Case- Joseph Shine v. Union of India

The four-day long hearing in the PIL praying for the decriminalisation of the act of Adultery had
witnessed positive, feminist remarks from the Supreme Court five-judge bench.

“The argument against you (the petitioner) is that section 497 protects the sanctity of marriage…
However, if a married men has sexual intercourse, outside his marriage, but with an unmarried
woman, that does not amount to an offence under the provision though it also effects the
sanctity…”, reflected Justice D. Y. Chandrachud. “fidelity does not apply to a married man if he
engages in extra-marital sex with a single woman? You exact fidelity from a woman but not
from a man?”, he asked.

Concurring, Justice Rohinton Nariman cited the classical Article 14 test- “where is the
intelligible differentia in saying that the sanctity of marriage is not hurt if a married man has
sexual intercourse with an unmarried woman? This is manifest arbitrariness”

Further, Justice Chandrachud indicated the impropriety of the section in so far as it exempts from
criminal prosecution a man who has engaged in sexual intercourse with a married woman if the
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same transpires with the consent or connivance of the said married woman’s husband- “can the
section be saved if we strike down this part…because this is one ground for the
unconstitutionality of the provision…or would we, by applying the doctrine of severability, in
fact make the offence even more severe than the legislature intended?”

“Besides consent, If the husband of a woman connives with another man for the latter to
participate in sexual intercourse with the former’s wife, then there would be no adultery! This
‘connivance’ attaches a certain deviousness to the Act”, he continued.

Justice Indu Malhotra also pointed out the “absurdity” of the section in as much as it legalises the
act of Adultery if committed by with the consent or connivance of the husband of the woman
who is party to the act- “Is the wife of the consenting husband being treated as chattel? This
amounts to gender bias”

“The provision is Anti-human in a very ostensible way in so far as it implies that a woman could
be subjugated to this extent on the consent of her husband…this is unknowable to Indian
thought…such

consent or connivance is unacceptable”, observed Chief Justice Dipak Misra.

Section 497 of the IPC, in so far as it absolutely immunises the adulteress against any criminal
prosecution for the act of adultery, was also canvassed.

“There is no rationality in treating one party as the victim and the other as the accused for the
same act… the only rationale behind the provision seems to be that marriage is an institution
which has to be saved…marriage has been called an institution in all scriptures…it is built by
two pillars and there has to be equal responsibility of both…to say that women are protected
from the criminal ramifications of Adultery under Article 15(3) is not justified…Article 15(3)
only applies to post-constitution laws…”, noted the Chief Justice. “An ancient provision is not
protected under Article 15(3). It is for the Parliament to make (laws under Article 15(3)”, agreed
Justice Nariman.
 13

It was also pointed out how section 198(2) of the Cr. P. C. allows the initiation of criminal
proceedings for Adultery only at the instance of the husband of the adulteress, but the wife of the
man party to the act of adultery cannot institute a complaint.

“The man shall be booked for the offence and his wife shall suffer but the husband of the woman
who has committed the crime will have the benefit…”, observed the Chief Justice.

Referring to the offence of bigamy under section 494 of the IPC, Justice Chandrachud weighed
in, “bigamy is gender neutral…if a woman engages in sexual intercourse in a second marriage
while the first is subsisting, it is punishable…section 497 does not use same the yardstick as
section 494 and this distinction makes the former unconstitutional…”

The judge also remarked how sexual intercourse outside a subsisting marriage may be a
symptom of a broken down marriage.

“If a marriage has broken down and a party engages in sexual intercourse outside the marital tie,
you cannot criminalise that person…however, the sexual autonomy inherent in us is not absolute
and that adultery is a ground for divorce is a reasonable restriction on that autonomy…
decriminalising adultery would not have the effect of licensing it”, noted Justice Chandrachud.
He repeated that one retains their sexual autonomy to an extent even after marriage and that the
right to say “no” is not forfeited by marriage.

Towards the end of the hearing, Justice Chandrachud weighed in that making section 497 gender
neutral would only address the issue of under-inclusion and that the real question is if Adultery
should be a criminal offence at all. Justice Malhotra voiced her scepticism about how the
relationship between two adults, which is a matrimonial dispute, could be a crime against the
society.
With the Chief Justice Observing that the survival of a marriage should be left to the discretion
of the husband and the wife, without any intrusion by the State, the judgment was reserved.
 14

Conclusion
The Supreme Court delivered an unanimous verdict with all the five judges concurring  on a
crucial 150-year-old adultery law that considers punishment only to a man and not a married
woman for an affair by treating her as a victim and not as an abettor of the offence. "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 centre had, in its defence, claimed that the law should remain valid as it protects the sanctity
of marriage. The petition filed against the law was done so on the premise that the law does not
treat men and women equally. 

A five-judge constitution bench, headed by Chief Justice Dipak Misra, had reserved its verdict.
 15

References
Books referred

 Criminal Law by PSA Pillai, 10th edition

Statutes referred

 The Indian Penal Code, 1860

 The Code of Criminal Procedure, 1973

Webliography

 https://www.livelaw.in/husband-is-not-the-master-of-wife-sc-strikes-down-158-year-old-
adultery-law-under-section-497-ipc/
 https://www.outlookindia.com/website/story/decriminalisation-of-adultery-a-setback-to-
the-institution-of-marriage-in-india/317282
 https://www.ndtv.com/india-news/supreme-court-verdict-on-150-year-old-adultery-law-
soon-1922913
 https://www.hindustantimes.com/analysis/decriminalisation-of-adultery-is-the-first-of-
many-steps/story-twhdBreDAwXsNd1brGSUUI.html
 https://www.indiatoday.in/india/story/adultery-law-section-497-3-past-supreme-court-
judgments-1349993-2018-09-27
 https://www.indiatoday.in/india/story/adultery-verdict-live-updates-1350022-2018-09-27
 https://www.indiatoday.in/india/story/diluting-adultery-law-will-be-detrimental-to-
marriages-centre-to-sc-1282796-2018-07-11