Issues around Section 497 of IPC and Recent PIL in Supreme Court

On December 8, 2017, the Supreme Court has agreed to admit a PIL that challenged the constitutional validity of section 497 of the Indian Penal Code. The PIL was filed by Kerala-based Joseph Shine. The court will now hear the case and will decide in future if the law should be reformed or scrapped.

Section 497 of IPC

Section 497 of the Indian Penal Code defines the offense of Adultery. This section penalizes sexual intercourse of a man with a married woman without consent of her husband.  The crime does not amount to rape but entails punishment of up to five years in jail or fine or with both for the man. The woman in such case is not punished as an abettor.

While admitting the PIL, the Supreme Court found anomaly in the law and termed it “prima facie archaic”. Court also said that the law “tantamounts to subordination of a woman where the Constitution confers equal status”.

The two issues with the law are as follows:

• Firstly, the law makes distinction between sexual intercourse done with married women without her husband’s consent and with an unmarried woman. Therefore, section does not penalise sexual intercourse of a man with an unmarried women, widow or a married women involving in the act with her husband’s consent.
• Secondly, the law appears to be gender discriminatory because a husband cannot prosecute wife committing adultery. He can only prosecute her adulterer.

Thus, law grants immunity to women. However, similar right has not been conferred on a wife to prosecute the woman with whom her husband has committed adultery. Also the wife cannot even prosecute her husband committing adultery.

Grounds to Revisit the Law

There are four main grounds to revisit the law as follows:

Law discriminates against men

When sexual intercourse takes place with the consent of both parties, there is no good reason to exclude the wife and prosecute only her adulterer. Thus, Section burdens man alone for the offence and grants immunity to wife by treating her as a victim according to prevalent social norms.

Violation of Article 14, 15 and 21

Arbitrary distinction is made between man and woman without any reasonable grounds.

Not in consonance with changing Social Conditions

Today both women and men move shoulder to shoulder with each other. Also, today Polygamy is not prevalent in Indian society. So any biasness in the law towards any gender is like not evolving the law with the ever changing society.

Promotes subordination of women

The section encourages the notion of treating wife as a commodity under the subjugation of husband. It harms the individual independent identity of women whose prosecution depends on husband’s consent.

Historical Facts

Indian Penal Code is 157 years old and many of its sections including section 497 have lost their relevance today. When section 497 was enshrined, the practice of Polygamy was widespread and eventually, it were the women who bore the brunt of harassment and mental torture due to extramarital relations of their husbands. Thus, it was justified in that time to consider them as victim. This section was placed in order to restrict men from having sexual relations with the wives of other men.

However, with changing times, the section appeared to be against the tenets of equality and gender justice. It was challenged in Supreme Court thrice 1954, 1985 and 1988 before again being taken up by SC now. The outcomes of previous three instances are as follows:

• SC 1954 Judgement: Court held that the provision could not be stuck down because it will amount to violation of right to equality wherein under Article 15(3); Constitution permitted special provisions for the benefit of women. {invoked doctrine of reasonable classification}.
• Sowmithri Vishnu vs Union of India (1985): In this case, the SC threw the ball in the court of parliament by saying “it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ‘transformation’ which the society has undergone.”
• 1988 Judgement: SC dismissed the argument that Section 497 was discriminatory. The court agreed that “a man seducing the wife of another” was the most seen and felt evil in society.

Views

Some lawyers and experts put forth the argument that any consensual sex between two consenting adults is a private act and should not be intervened by the government. Also the law was enacted to maintain the sanctity of institution of marriage. But it needs to be understood sanctity of this sacred institution cannot be enforced. Above all if a spouse commits adultery then prosecution of the person won’t prevent the breakdown of marriage.

What next?

We shall need to wait and watch the SC judgement on this case. Most probably, the SC will not strike down the law but will issue directives to parliament to modify the act and make it gender neutral. This would be as per the recommendation of Law Commission of India which recommended the retention of Section 497 in its present form with the modification that even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. But this was not accepted by Parliament earlier.