Why is it that sec.497 of IPC is violative of Constitution of India ?

Why is it that sec.497 of IPC is violative of Constitution of India ?

Adultery – its legality and morality– by Dyuti Ray, Lawyer at CALCUTTA HIGH COURT

Supreme Court’s recent verdict on Adultery, that it is no longer a crime but can be a ground for Divorce, has raised some confusion among general public.

First of all we should enlightened ourselves about the laws of Adultery under section 497 of Indian Penal Code which was prevailing from 1860.

Let us check what the law says, ” whoever has sexual intercourse with a person who is and with 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.”

Now let us interpret the law of Adultery.

1.In the offence of adultery the women should be married, if the women is unmarried, divorcee or widow, it will not constitute an Adultery hence not a crime.

2.Such sexual intercourse must be without the consent of the husband. Now if the husband knowingly allows or forces his wife to go to another man for his sexual satisfaction, there is no offence of adultery.

3.Sexual intercourse should not be rape.

4.Then if it is not a rape and if in case of any sexual intercourse, both are involved in the act, where law only punishes the man and Woman gets scot-free.

5.It confers upon the husband the right to prosecute the adulteror but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery.

6.Similarly it does not confer any right on the wife to prosecute the husband who has committed Adultery with another woman.

7. It does not take in cases where the husband has sexual relations with one or more unmarried or widows with the result the husband’s have, as it were, a free life under the act to have extra marital relationship with one/many single woman/women who is/are not married.

8.In case of adultery the consent of the women is immaterial because the women being married, it is the husband who is the aggrieved party. So it presumes that in adultery woman is always a willing and consenting party to sexual relationship.

Now Let us see, what Supreme Court has perceived, repelling 150 years obsolete antique piece of section 497 of IPC.
It is observed by Supreme Court that ” sec 497 is manifestly arbitrary offends the dignity of women”. It is affects the Right to life as enshrined in Article 21 and also violative of Articles 14 and 15 of the Constitution of India.

Why is it that sec.497 of IPC is violative of Constitution of India ?

It treats woman as a chattel or movable property of a man, status of woman is denied, it also shows sexual autonomy, perpetuate subordination and is based on one sided inclination to male as a gender.

Sec. 497 presumes that women is the victim and not an abetter of the crime of adultery. It criminalise only men on the preconceived notion that man is the seducer and not the woman. Justice Rohinton Nariman said” sec. 497 is archaic law, manifestly arbitrary. Ancient notions of man being a perpetrator and women being a victim no longer holds good.”

We may draw a conclusion, Adultery still shall remain a Civil wrong although not a crime, as no one has right to enter into an adulterous relationship and it is a valid ground for Divorce. This action, willingly and fully being acquainted that the act could hurt the spouse, children and family and such intentional activities strike on the sanctity of our marriage which glorifies sexual fidelity constituting the back bone of Indian culture will always be condemned and looked down upon by our society.

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