Adultery no more an offence in India

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.