Sanhita.ai

Indian Penal Code

(IPC)

Adultery.

Chapter 20: Of Offences relating to Marriage

Section: 497

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, 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.[In Joseph Shine v. Union of India (2018), the Court held adultery as defined under Section 497 of the IPC as being manifestly arbitrary, discriminatory and violative of the dignity of a woman and therefore, unconstitutional. Section 497 is considered as the wife's encroachment on her right to life and personal liberty by accepting the notion of marriage which overthrows the true equality. “Equality is overthrown by adopting the sanctions of penal code to a gender-based approach to the relationship of man and woman. Sexual autonomy falls within the area of personal liberty under Article 21 of Constitution of India. Trust and respect are two essentials of a marriage. When both the spouses respect each other with equality and dignity then only the respect for sexual autonomy is established.” This section denies the substantive equality as it provides that women are not able to give her free consent for the sexual acts in a legal order which considers them as a sexual property of their spouse. Therefore, section 497 is violative of Article 14 of the Indian Constitution and it also violates the non-discrimination clause of Article 15 of the Constitution of India. This section also lays strong emphasis on the consent of the husband which leads to the subordination of women. Hence, it clearly violates Article 21 of the Constitution of India. As a result of all the discussion it was declared that:Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.Section 198(2) of the CrPC. 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.(https:privacylibrary.ccgnlud.org/case/joseph-shine-vs-union-of-india, https:indiankanoon.org/doc/42184625/)]

To read full content, please download our app