In India, the law of adultery is punishable under section 497 of the IPC, but originally the framers of the code did not make adultery an offence punishable under the Code, it was the Second law commission which after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code. 

Section 497 [2]provides: “Whoever has sexual intercourse with a person who is and whom he known 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 1951, one Yusuf Abdul Aziz challenged the constitutional validity of the provision. However, Bombay high court chief justice M C Chagla had upheld the provision saying the Constitution permitted such special legislation for women, it was held in this case that this section does not contravene any of the fundamental rights laid down in the Constitution of India, and therefore it is not bad or void under Articles 13. 

The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. Thus charges are pressed against the outsider who breaks the said sanctity. The woman, in cases of adultery, is considered the victim of a seducer. It appears that the court believes that the man has an unstoppable seductive charm and the woman is helpless against it. The evil that is punished by the law, in the mind of the court, is that of seduction of a woman by another man. According to the court the woman is considered to be the victim. Thus the court held that the law was non-discriminatory and not violating the right to equality, thus the court upheld the constitutional validity of section 497. The court also opined that by not allowing the spouses to prosecute each other the law offers a chance to the spouse to makeup, it was further held that “Section 497 is not violative of Articles 14, 15 & 21 of the Constitution. 

It is humbly submitted that the court erred in its judgment.

We must keep in mind that these reasons and defences were given decades ago. The most important reason for debate to get re-ignited is the drastic change in the social status of women. Gone are the days when Women were a suppressed or subjugated lot, The practices of sati, child marriage, polygamy, etc, have been done away with.

Today there are laws against these evils and also laws providing effective relief against heinous acts such as domestic violence, dowry and others. Almost all professional colleges have a quota for women. Thus, women, today are in no way inferior to men or suppressed, and are at par with the opposite sex. The effective implementation of these laws and other women-friendly provisions in the constitution ensures that women, today, have an edge in society. All this has resulted in them gaining the power of choice. They can no longer be classified as victims in cases of adultery.

It is pertinent to note here that The 42nd Law Commission Report [5] has suggested substituting section 497 of the IPC, the substituting provision is “S. 497. Adultery – Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape commits 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”

The Malimath Committee on Criminal Justice Reforms has re-iterated more or less the same argument, that men and women being equal partners in the deplorable act, should be made to stand at the same footing, and equal treatment should be meted out to them both.

In light of the above, it is very much apparent & beyond doubt, that the prevailing law is not in consonance with the changing times, the law is neither socially apt nor does it stand to the principles of equality, from absolute conservatism to absolute liberty, the social fabric of our country has undergone a drastic change. It is high time that Recommendations made by the Justice Malimath Committee and the 42nd Report of the Law Commission be taken into consideration religiously, and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality.

REFERENCES:

1.http://www.legalservicesindia.com/article/146/Law-of-Adultery-in-India.html

2.https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-1982-crpc/

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