Section 497 (Adultery) of the Indian Penal Code - The MYTH and the REALITY

The definition of the term ‘adultery’ and its consequences vary between religions, cultures, and legal jurisdictions, but the concept is similar in Judaism, Christianity, Hinduism and Islam. [1] The term comes from the words "ad"(towards) and "alter"(other).[2] At the time of its origin, it referred exclusively to sex between a married woman and a man other than her spouse.

Now, as the term has been used in section 497 of the Indian Penal Code, 1860, in relation to marriage, it thus becomes important to note that the institution of marriage came into existence as, and only as, a means to secure a man's property even after his death. Men wanted to retain their property throughout their lifetime and beyond. It was only possible for them to do so if they could ensure that the person or persons inheriting the property after their death belonged to their own bloodline and that they did not belong to the bloodline of some other person.

Criminal intercourse with a married woman tended to adulterate the issues or children being born out of such a relation, thereby burdening the woman’s husband to support and provide for ‘another man's children’. The ‘purity of bloodline’ of the children born out of such adulterous relationships is lost, and the chain of inheritance (of property) gets altered due to such relations.

It was to prevent this mischief of altering the chain of inheritance that section 497 IPC was introduced. The idea was to secure the reason behind marriage (i.e. to ascertain the purity of a child), so that inheritance is not altered but remains with the husband of the woman concerned.

Section 497 is far from being either the first or the only type of legal provision dealing with adultery. In fact, if one is of the believe that the punishment for the crime of adultery can no longer be the death penalty, in view of the fact that adultery no longer continues to be a crime in most of the western countries,  then he/she would be grossly mistaken. This is because there have been or are legal codes, old and new, some of which may, while at the same time some others may not hold out a death penalty for the adulterers but indirectly, by stating that if they were to be killed by the husband of the woman, due to any such act of theirs that can be held to be adultery, then the husband would not be punishable or liable for a lesser punishment, encourages the killing of adulterers at the hands of others, especially the husband of the adulterer woman.

Provisions relating to, and dealing with, adultery have made their way into the legal codes from ancient times, thereby giving an indication that the crime is not of recent but rather, of ancient origin. The Code of Ur-Nammu (ca. 1900-1700 BC) deals with the crime of adultery. Verse 6 of the Code lays down that ‘If a man violates the right of another and deflowers the virgin wife of a young man, they shall kill that male’[3], whereas verse 7 states that, ‘If the wife of a man followed after another man and he slept with her, they shall slay that woman, but that male shall be set free.’[4] The Hammurabi’s Code, dating back to at least 1750 B.C., which consolidated the regulations taken from the kingdoms that Hammurabi, the then King of Babylonia had conquered and represented, among others, a uniform code of justice covering the areas of commerce, family, crime, debts etc., lays down in verse 129 of the Code, that ‘If a man's wife be surprised ( in flagrante delicto, which means ‘while committing the offence or red-handed’[5] and/or ‘in the very act of committing a misdeed or in the midst of sexual activity’[6]) with another man, both shall be tied and thrown into the water…’.[7] Though, it must also be mentioned that provision also states that the option of pardoning the wife would be available to the husband, while the option of pardoning both the persons convicted of such an offence was to be available to the king. Verse 130 states that ‘If a man violate the wife (betrothed or childwife) of another man, who has never known a man, and still lives in her father's house, and sleep with her and be surprised, this man shall be put to death, but the wife is blameless’, thereby providing a sort of an immunity to the wife involved in an adulterous relationship, if she were to be a child, in line with the modern day principle of ‘ doli incapax’.[8]

Moving onto the modern age, it is found in the Ottoman Penal Code of 1858 that Article 188 of the Code lays down that ‘He who has seen his wife or any of his female mahrams[9], a term which is used to refer to ‘a relative who is within the prohibited degrees of relationship (i.e. the woman cannot marry the subject)’, with another in a state of disgraceful adultery and has beaten, injured, or killed one or both of them will be exempted…’,[10] thereby providing a defence to the husband if he were to kill his wife and/or her lover on account of having been involved in an adulterous relationship. Quite similarly, the 1810 Penal Code of France laid down that ‘…in the case of adultery, provided for by article 336, murder committed upon the wife as well as upon her accomplice in flagrante delicto (which means ‘while committing the offence or red-handed’[11] and/or ‘in the very act of committing a misdeed or in the midst of sexual activity’ [12]), in the house where the husband and wife dwell, is excusable’,[13] thereby making the crime of murdering one’s wife and/or her lover, a good defence in the then French law. The concerned provision of the 1810 Penal Code of the French, therefore, had a strong resemblance to the above cited provision of the Penal Code of 1858 of Ottoman origin. These two provisions of law, that have been done away with since, form the very source for most of the laws in the Middle Eastern and North African countries that continue to legalize or defend the murdering of the wives and/or their lovers, by their respective husbands, as a punishment for adultery.

On the other hand, most European countries have decriminalized adultery. Adultery is not a crime in most countries of the European Union, including Austria, the Netherlands, Belgium, Finland, Portugal, Italy, Spain, Greece or Sweden.[14] In the United States, laws vary from state to state. In those states where adultery is still on the statute books (although rarely prosecuted), penalties vary from life sentence (Michigan)[15] to a $10 fine (Maryland)[16] to a Class B misdemeanor (New York)[17] to a Class I felony (Wisconsin)[18].

Section 497 never quite aimed to secure the spiritual sanctity of marriage. This is the reason why it does not punish a man for having sex with another man's wife with the connivance of the woman’s husband, since in that case, the husband is expected to have full knowledge of the parentage of the child being born out of such mating and will not be cheated into tending to and providing for the offspring of another man.

Thus, as per section 497, ‘ adultery is an offence committed by a man against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow or even with a married woman whose husband consents to it or with his connivance.’[19] Keeping in mind the origins of the crime of adultery, ‘the scope of the offence under the section is limited to adultery committed with a married woman, and the male offender alone has been made liable.’[20]

The concerned section was introduced into the Penal Code right at the time of enactment of the Code in 1860. It continued to function in the manner in which it was enacted till the advent of the Constitution of the Republic in 1950. Concerns whether the section would be at loggerheads with Article 14 of the Constitution, which guarantees the right to ‘equality before law’, on account of the fact that it leaves out the woman adulterer from the purview of punishment while punishing her male lover, arose. However, such concerns were laid to rest due to the presence of Article 15(3) of the Constitution, which states that, 'Nothing in this article (i.e. Article 15 as a whole) shall prevent the State from making any special provision for women and children'. It is in furtherance of this principle enshrined in the Constitution that women continued to be left out from the purview of punishment for the commission of adultery.

Hence, as far as 'Adultery' is concerned... a case of adultery can't be filed against a woman even if she is guilty of having been involved in an extra-marital relation. A case under this section (i.e. section 497 of the IPC) can only be filed against the male with whom she enters into such a relation.

Section 497 of the Indian Penal Code, 1860, states that, ‘ 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.’

However, unlike what the men's rights activists would like us to believe, section 497 ‘is not’ in favour of women at all... or at the most, it goes against women's interests more than it serves their interests.

1) No wife can bring to justice, the lover of her husband. But a husband can, with the help of this section, persecute his wife's lover.

2)  If a married man is having a having an affair with an unmarried woman or a divorcee or a widow, it shall NOT be treated as adultery under this section. Even if a man is having an affair with a married woman, it shall not be treated to be a crime under this section, if the husband of the woman concerned, consents to it or if the affair is carried out with his connivance. This effectively means that husbands can freely indulge in having extramarital affairs with spinsters, widows, prostitutes or even married women whose husbands have consented to such a relation, directly or indirectly.

3) Women cannot file a case of adultery against their husbands under this section, even if he is having an extramarital affair with a married woman. On the other hand, the husband of an adulterer wife can not only file a case of adultery against his wife's lover and bring him to justice, under this section, but can also file for a divorce from his wife, on the ground of adultery, if the charges brought under this section, are proved.

4) Last but not the least, the section does not even provide any provision which enables the court to hear the woman against whom the husband brings charges of having indulged in an extramarital affair. However, fortunately, in this case, the courts have already agreed that there is nothing in the section that prevents the concerned woman from being heard at the trial, if she makes an application to the court to that effect.

Basically, this section was enacted, solely and exclusively, to protect the rights of the husbands. Though the men's rights activists managed to portray this as a pro-women and anti-men provision of the Indian Penal Code, 1860, merely because of the fact that an adulterer wife is not punished for adultery and it is the man with whom she was committing the adultery, who goes behind the bars.

Law, as we know it, is an ever changing, dynamic subject. Any law, if it fails to keep pace with the changing times, becomes obsolete. Hence there is a need to revisit and review the present provision of the Indian Penal Code, dealing with adultery in India and make necessary changes, especially in the backdrop of the fact that other countries are increasingly doing away with adultery as a crime altogether, though, as had been rightly stated by the High Court of Bombay, ‘Merely because adultery is not an offence in many countries and there is variance in quantum of sentence, Section 497 cannot be held as ultra vires to constitutional provisions.’[21]

[1].Encyclopaedia Britannica, available at: http://www.britannica.com/EBchecked/topic/6618/adultery (Last Modified February 09, 2009).