Section 497 IPC: Should Adultery be Gender Neutral or Decriminalised?

The Ministry of Home Affairs on behalf of the Union of India filed its counter affidavit in the Supreme Court on Wednesday, regarding a petition to declare the criminal provision against adultery unconstitutional. The arguments advanced by the respondent Ministry were based on the belief that section 497 of the Indian Penal Code (IPC) protects the sanctity of marriage. The respondents buttressed their case with the existing case law as well as the Malimath Committee Report which recommended that section 497 IPC be made gender neutral.

Section 497 IPC states that “[w]hoever 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.”

A plain reading of this section shows that it is loaded against men as there is a presumption that the woman in an adulterous relationship is a victim. The provision further does not take into account that a woman in an adulterous relationship need not be married. In 1985, these same issues as well as others were raised in the Supreme Court. The Bench headed by then Chief Justice of India, YV Chandrachud dismissed the petition stating that the “[l]aw does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. It only makes a specific kind of extra-marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another.”

The Court in their decision had preferred not to delve into the matter in too much detail and instead left it for ther Parliament to determine. The Court had also stated that the provision dealt with a specific type of adultery and that civil lawsuits could always be filed for separation in the event other types of adultery were committed.

On December 8, 2017, a Bench comprising the Chief Justice of India Dipak Misra as well as Justices AM Khanwilkar and DY Chandrachud while admitting the petition against the provision, noted another aspect of the provision which negates criminal liability if the act of adultery was committed with the connivance of the husband. The Court in its Order opined that “[v]iewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status.”

Thus, it appears that the Government is not in favour of striking down the provision, but is instead open to making it gender neutral. The Court too seems to be of a similar frame of mind. Making the provision gender neutral would make it possible for women to file complaints against their erring husbands' partners in adultery.