What is adultery law? The bone of contention over validity of Section 497 of IPC

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New Delhi | September 27, 2018 10:38 AM

What is adultery law? The main crux of the argument is that Section 497 is "violative of gender equality". The law only identifies men as a victim. It also does not empower women to prosecute her husband even if he is engaged in adultery.

ADULTERY SC SECTION 497A petition against the Section 497 was filed in 2017 and the matter came up for hearing at the Supreme Court in December 2017.

The Supreme Court will today decide on pleas that have demanded that Section 497 of the Indian Penal Code that criminalises the act of adultery be scrapped. While the debate over adultery and Section 497 has been on for sometime, the primary argument against the validity of Section 497 is that it is not “gender neutral”.

All about Section 497

Section 497 of the 158-year-old Indian Penal Code says: “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.” If we simplify it, Section 497 of Indian Penal Code convicts and penalises a man if he is found guilty of engaging in adultery. Women have been given immunity from this law. Apart from this, if the wife is given consent by her husband to have sex with another man, it constitutes no no offence.

What are the arguments?

The main crux of the argument is that Section 497 is “violative of gender equality”. The law only identifies men as a victim. It also does not empower women to prosecute her husband even if he is engaged in adultery.

The court’s view

A petition against the Section 497 was filed in 2017 and the matter came up for hearing at the Supreme Court in December 2017. The plea was filed by Joseph Shine. On January 5, the apex court had referred to a five-judge Constitution bench the plea challenging the validity of the penal law on adultery. The court had taken a prima facie view that though the criminal law proceeded on “gender neutrality”, the concept was absent in Section 497. A five-judge constitution bench headed by Chief Justice Dipak Misra on August 8 had reserved its verdict.

What Centre says on Section 497

The central government has voiced its views against the repeal of the Act stating that adultery is a public wrong which causes mental and physical injury to the spouse, children and the family. “It is an action willingly and knowingly done with the knowledge that it would hurt the spouse, the children and the family. Such intentional action which impinges on the sanctity of marriage and sexual fidelity encompassed in marriage, which forms the backbone of the Indian society, has been classified and defined by the Indian State as a criminal offence in exercise of its Constitution powers,” the Centre had said in court.

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