Why Supreme Court Discarded Sec 497 Of Indian Penal Code?

On 27 September 2018, a five-judge bench of the Supreme Court unanimously ruled to scrap section 497 of Indian Penal Code, and said it is no longer as a offence in India. This bench was headed by Ex-Chief Justice Dipak Mishra and he said that adultery cannot be a criminal offence; however it can be a ground for civil issues like divorce. Now first we have to understand, what basically Adultery is and what was there in it? It means a voluntary sexual intercourse of a married person other than with spouse. The legal definition of adultery is different in different countries. Many cultures have regarded adultery as a crime like Christian, Islamic, Jewish and Hindu traditions are all unequivocal in their condemnation of adultery.

In India adultery was punishable under Sec 497 of IPC, 1860 and 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 adjunct. This section was introduced 158 years ago at the time when the Indian Penal Code was introduced that is 1860 with  the aim to protect the marriages in Indian society. Also, we say that Adultery was Anti women because the law seems to be pro-women but it is anti-women in a grave ostensible way, as if there is a consent of the husband then the wife can be subjected to someone’s desire which is fully against the Indian morality. And also in marriage each partner has equal responsibility. Also there is point which we can say that the existing adultery law under Sec 497 of IPC was contradict the law which made under The Marriages Law Amendment Act of 1976 it makes an act of adultery valid ground for divorce which comes under civil law. There are three Judgments which gives us some light on adultery, “Yusuf Aziz V. State of Bombay” 1951 case, in this case, the petitioner argued that the adultery violated the fundamental right of equality guaranteed under Article 14 and Article 15 of the constitution he said this law discriminated against the men by not making women equally culpable in an adulterous relationship but supreme court said in this case that Sec 497 is valid. And in second case “Sowmithri Vishnu V. Union of India” 1985 case in this case also Supreme Court held that sec 497 is valid. And in third case “V Revathy V. Union of India” in this case SC observed that adultery law was shield rather than a sword and also said that existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Sec 497 to men. And the fourth case which held that Sec 497 of IPC have no space under criminal offence is “Joseph Shine V. Union of India”.

The countries where Adultery is criminal offence are Indonesia, Maldives, Bangladesh, UAE, Afghanistan, Nepal, Egypt etc. And countries where adultery has been done away with as a crime are China, Japan, France, Germany, South Korea, Austria, Bermuda, Scotland, etc.

At last, I like to say that marriage is something which is the responsibility of both people men and women and no marriage can take away the rights of other people. And also the adultery is not a solution to bind the person’s right. Adultery definitely violates the right which is guaranteed under Article 14 and Article 15. Why only men have to suffer from criminal offence why not women? Adultery clearly discriminates on the ground of sex. And Also I observe that this law made during the old India in the year 1860 on that time this law may fit but in today’s India, this law does not have sustainable ground to impose.

This Article Is Authored By Arpit Pandey, Student of B.A. LL.B, ICFAI Foundation Of Higher Education (IFHE) University

Law Corner

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