ADULTERY (497)

Описание: Adultery, under the criminal law, is now a history. It was struck down and declared unconstitutional by the Supreme Court in the case of Joseph Shine v Union of India (2019) 3 SCC 39, through a five judges bench (Deepak Misra, A M Khanwilkar, Rohinton Nariman, D Y Chandrachud and Indu Malhotra JJ).
Section 497, which defined adultery as the act of sexual intercourse by a person with the wife of another where he knows her to be the wife of another or has a reason to believe so in absence of the consent or connivance of the husband of such woman’s husband made adultery punishable by an imprisonment of either description which would extend to five years or fine or both. However, in such a case wife was not punishable as an abettor—hence exempted from criminal liability.
This definition compromised the basic concept of constitutionalism which seeks equality of the laws and equal protection of the laws within a territory (Enshrined in Article 14 of the Indian Constitution). It further attempted to seek an unconditional and unilateral fidelity from only one party to the marriage i.e. woman/wife. This was a very precarious position wherein the actus reus was quite complicated and punishable with an invariable attitude. Section 198(2) of the Criminal Procedure Code also supplemented this declaring husband as the person “aggrieved” only who could file a complaint in such a case, again compounding the notion of equality and practically designating husband a proprietor of his wife and treating woman as a chattel.
Inevitably, the Constitutional validity of Section 497 was unsuccessfully challenged/raised before the Courts in various judgements starting with Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321 and followed by many others; Sowmithri Vishnu v. Union of India (1985) Supp. SCC 137, V Revathi v. Union of India (1988) 2 SCC 72 and W Kalyani v. State through Inspector of Police (2012) 1 SCC 358.
The law strikes at the heart of the notion of equality as also the concept of privacy and sexual autonomy (as observed in various judgements by various foreign courts), the petitioners had maintained. However, till 2018, the contentions fructified nothing material.
Finally, in Joseph Shine v Union of India (2019) 3 SCC 39 the Supreme Court, after a span of 158 years, removed this law from the Statute book, by declaring it ultra vires the Constitution along with Section 198 (2) of the CrPC to the extent of its applicability to Section 497 of the IPC.