The supreme Court of India
has stuck of the section 497 of Indian penal stating it is unconstitutional. Adultery
is defined in the IPC as Whoever 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.
In Sowmithri Vishnu case the Supreme Court upheld Section
497 while repelling three arguments against its continuance, as
has been noticed hereinabove. This judgment also must be
said to be swept away by the tidal wave of recent judgments
expanding the scope of the fundamental rights contained in
Articles 14, 15, and 21. Ancient notions of the man being the
seducer and the woman being the victim permeate the
judgment, which is no longer the case today. The moving times
have not left the law behind as we have just seen, and so far as
engaging the attention of law makers when reform of penal law
is undertaken, we may only hasten to add that even when the
CrPC was fully replaced in 1973, Section 198 continued to be
on the statute book. This Continues till date that the Section 497 IPC continues to be on the statute
book.
Now the Supreme court has took a different
view that the section 497 IPC is unconstitutional.
The Supreme Court has now declared that
(i) Section 497 is struck down as unconstitutional
being violative of Articles 14, 15 and 21 of the
Constitution.
(ii) Section 198(2) of the Cr.P.C. which contains the
procedure for prosecution under Chapter XX of the
I.P.C. shall be unconstitutional only to the extent
that it is applicable to the offence of Adultery under
Section 497.
(iii) The decisions in Sowmithri Vishnu (supra), V.
Rewathi (supra)
and W. Kalyani (supra) hereby
stand
overruled.
The three grounds which are under challenge is : first, while
Section 497 confers a right on the husband to prosecute the adulterer, it does
not confer upon the wife to prosecute the woman with whom her husband has
committed adultery; second, Section 497 does not confer a right on the
wife to prosecute her husband who has committed adultery with another woman;
and third, Section 497 does not cover cases where a man has sexual
relations with an unmarried woman. The submission before this Court was that
the classification under Section 497 was irrational and ‘arbitrary’. Moreover,
it was also urged that while facially, the provision appears to be beneficial
to a woman, it is in reality based on a notion of paternalism “which stems from the assumption that
women, like chattels, are the property of men.”
Even in this circumstances we have to view is that family
being the fundamental unit in society, if the same is disrupted, it would impact
stability and progress. The State, therefore, has a legitimate public interest
in preserving the institution of marriage. Though adultery may be an act
committed in private by two consenting adults, it is nevertheless not a
victim-less crime. It violates the sanctity of marriage, and the right of a
spouse to marital fidelity of his/her partner. It impacts society as it breaks
the fundamental unit of the family, causing injury not only to the spouses of the
adulteror and the adulteress, it impacts the growth and well-being of the
children, the family, and society in general, and therefore must be subject to
penal consequences.
Throughout history, the State has long retained an area of
regulation in the institution of marriage. The State has regulated various
aspects of the institution of marriage, by determining the
age when an adult can enter into marriage; it grants legal
recognition to marriage; it creates rights in respect of inheritance and
succession; it provides for remedies like judicial separation,
alimony, restitution of conjugal rights; it regulates
surrogacy, adoption, child custody, guardianship, partition, parental
responsibility; guardianship and welfare of the child. These are
all areas of private interest in which the State retains a
legitimate interest, since these are areas which concern society and public
well-being as a whole.
On the interest of the society the Indian government
should impose same yardstick to men’s also. By deleting the current provision
without clearing the gender biased laws, it is not a solution for the society
to curb this evil practice which was punishable allover world. Now India
indirectly legalizes Adultery which is a serious danger for the entire
community.
The Authour Mr.K.P.Satish Kumar M.L. is the leading Family court Lawyer
Daniel & Daniel Helpline :- 9884883318.
