CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA-800001

COMPREHENSIVE STUDY ON SECTION 497 OF INDIAN PENAL

CODE

THIS FINAL DRAFT IS SUBMITTED IN THE PARTIAL FULFILMENT OF THE

COURSE TITLED:

LEGAL METHODS AND RESEARCH METHODOLOGY

SUBMITTED TO SUBMITTED BY

MR VIJAYANT SINHA SAGAR SANJAY

TEACHER ASSOCIATE B.A L.L.B (HONS)

SEMESTER -1

ROLL NO-2147
 TABLE OF CONTENTS

1. LIST OF CASES CITED 03

2. DECLARATION 04
3. ACKNOWLEDGEMENT 05
4. RESEARCH QUESTIONS 06
5. RESEARCH OBJECTIVES 06
6. HYPOTHESIS 06
7. RESEARCH METHODOLOGY 06
8. SECTION 497 OF INDIAN PENAL CODE - AN INTRODUCTION 07
8.1. ESSENTIALS OF ADULTERY 08
8.2. HISTORICAL BACKGROUND 08-09
9. CONSTITUTIONAL VALIDITY OF SECTION 497 10-14
10. IMPACT OF SECTION 497 ON INDIAN SOCIETY 15-16
11. LANDMARK CASES AND JUDGEMENTS 17-18
12. CONCLUSION 19
13. BIBLIOGRAPHY 20

2
 LIST OF CASES CITED

1. Yusuf Abdul Aziz vs The State Of Bombay

2. Sowmithri Vishnu v. Union of India
3. In V. Revathi v. Union of India
4. W.Kalyani vs State TR.Inspector of Police & anr
5. V. Revathi by Thakkar J
6. Joseph Shine Vs Union of India

3
 DECLARATIONBY THE CANDIDATE

I, hereby, declare that the work reported in the B.A L.L.B (Hons.) Project report entitled
“SECTION 497 OF INDIAN PENAL CODE” submitted at CHANAKYA NATIONAL
LAW UNIVERSITY PATNA is an authentic record of my work carried out under the
guidance of MR VIJAYANT SINHA. I have not submitted this work anywhere else for any
other degree or diploma. I am also fully responsible for the contents of my project report.

(Signature of the candidate)

SAGAR SANJAY

B.A L.L.B (Hons)

SEMESTER -1

CNLU, Patna

4
 ACKNOWLEDGEMENT

At the outset I acknowledge my deep sense of gratitude to my family members for giving
their moral support to me in the completion of this project report.

I would also like to thank my mentor, teacher and guide Mr Vijayant Sinha Faculty of Legal
methods and research methodology who gave me the opportunity to do this project during the
course of which I learned a lot and was able to find a lot of new things.

I also owe the present accomplishment of my project to my CNLU librarians, who helped me
immensely with materials throughout the project and without whom we couldn’t have
completed it in the present way.

Above all I am grateful to the almighty for giving me strength and showering his blessings on
me in making this project report a success.

THANK YOU,

SAGAR SANJAY

B.A L.L.B (HONS)

SEMESTER -1

5
 RESEARCH QUESTIONS

 Wheather the section was unconstitutional and violated fundamental rights?

 Wheather the section destroyed and deprived the dignity of women?
 Wheather the section violated articles 14 and 21 of the constitution?

RESEARCH OBJECTIVES

 To understand the constitutional validity of the section

 To understand the history of section 497 of ipc
 To see the impact of the section on the dignity of women in india
 To understand the facts, judgements and principles of landmark cases related to
section 497 of Indian penal code

HYPOTHESIS

The researcher tends to presume that the section 497 of the Indian penal code did violate the
fundamental rights of women and deprived them of their dignity.

RESEARCH METHODOLOGY

The researcher has done doctrinal type of research in which he has gone through the primary
as well as secondary sources. While doing this project, the researcher consulted various case
laws as the primary source and commentaries on them. The doctrinal type of research allows
the researcher to read, analyse and compare all that is written and present.

6
 SECTION 497 OF INDIAN PENAL CODE - AN INTRODUCTION

Adultery means voluntary sexual intercourse of a married person other than with spouse. The
legal definition of adultery however varies from country to country and statute to statute.
While at many places adultery is when a woman has voluntary sexual intercourse with a
person other than her husband, at other places adultery is when a woman has voluntary sexual
intercourse with a third person without her husband’s consent. Though the modern trend is to
decriminalize adultery, historically, many cultures have regarded adultery as a crime. Jewish,
Islamic, Christian and Hindu traditions are all unequivocal in their condemnation of adultery.
In most cultures both the man and the woman are equally punishable. However, according to
ancient Hindu law, in ancient Greece and in Roman law, only the offending female spouse
could be killed and men were not heavily punished. In India the offence of adultery is
punishable under Section 497 of the Indian Penal Code (IPC), 1860. As it stands, this Section
makes only men having sexual intercourse with the wives of other men without the consent
of their husbands punishable and women cannot be punished even as abettors. The Report of
the Malimath Committee on Criminal Justice Reforms and the 42nd Report of the Law
Commission of India recommended redefining Section 497 to make women also punishable
for adultery. The Central Government accordingly has sought the views of all the 30 states in
the country regarding the implementation of the said recommendations. This paper attempts
to establish the redundancy of Section 497 in the light of Personal and Matrimonial laws and
changing social conditions subsequently making a case against amending and for completely
deleting Section 497 from the IPC. 4 According to Section 497 of Indian Penal Code, 1860,
Adultery is defined 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, 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.”

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ESSENTIALS OF ADULTERY

That the accused had sexual intercourse with the woman in question;

That she was the lawful married wife of another man;

That the accused knew or had reason to believe that she was the lawfully married wife of
another man;

That the husband of the woman did not consent to or connive at such intercourse;

That the sexual intercourse so had did not amount to rape.

HISTORICAL BACKGROUND OF ADULTERY

In India Manu the law giver of India in his manusmriti (the oldest form of law in India)
provided for the punishment of those who were addicted or had become accustomed to
intercourse with other men’s wives “ by punishment which cause terror followed by
banishment” Justice Nariman said. The Dharmasutras speak with different voices. In the
Apastamba Dharmasutra ,adultery is punishable as a crime and the punishment varied and
upon the class and the caste of the man in the woman involved in the case. However in the
Gautama Dharmasutra it is stated that if a man commits adultery he must observe a life of
chastity for two years; and if he does so with the wife of a vedic scholar, then for a period of
three years.

Justice Narima said in 17th century England,adultery was only a ground for divorce but
became or was declared as a capital punishment in Cromwell’s puritanical England in 1650
which was nullified as soon as king Charles 2 came back to restore monarchy. He said in the
first draft of Indian penal code by Lord Macaulay, he refused to make it a penal offence or
an offence of capital punishment.

Narrating the adultery scenario in India Justice Nariman said “The background in which such
a provision was enacted now needs to be stated. In 1860 when the penal code was enacted the
vast majority of population in the country, namely hindus had no law of divorce, as marriage

8
was considered to be a sacrament. Equally a hindu man could marry any number of women
until 1955.”1

“It is therefore not far to see as to why a married man having sexual intercourse with an
unmarried woman was not the subject matter of the offence. Since adultery did not exist as a
ground of divorce in law and since a man could marry any number of women among hindus
it was clear that there was no sense in punishing a married man in having sex with an
unmarried woman as he could easily marry her at a later stage. Two of the fundamental props
or bases of this archaic law have been long gone. Post 1955-1956 with the evident of the
Hindu code, so to speak a Hindu man can marry only one wife, and adultery became a ground
for divorce in hindu law.”2

1
timesofindia.indiatimes.com/india/why-was-adultery-law-enacted-in-1860-why-it-had-to-go-
now/articleshow/65987873.cms
2
https://timesofindia.indiatimes.com/india/why-was-adultery-law-enacted-in-1860-why-it-had-to-go-
now/articleshow/65987873.cms

9
 CONSTITUTIONAL VALIDITY OF SECTION 497 OF INDIAN PENAL CODE

Immediately after the commencement of the Constitution of India, Section 497 IPC was
assailed on the ground that it goes against the spirit of equality embodied in the Constitution.

In 1951, one Mr Yusuf Abdul Aziz, charged with adultery, contended before the Bombay
High Court that Section 497 IPC is unconstitutional as it, in contravention of Articles 14 and
15 of the Constitution, operates unequally between a man and a woman by making only the
former responsible for adultery. It, thereby, he argued, discriminates in favour of women and
against men only on the ground of sex.

13 Recalling the historical background of Section 497 and the then prevailing social
conditions and the sexual mores oppressive to women, and the unequal status of women, the
High Court of Bombay upheld the constitutional validity of the provision. Chagla, C.J.,
observed:

"What led to this discrimination in this country is not the fact that women had a sex different
from that of men, but that women in this country were so situated that special legislation was
required in order to protect them, and it was from this point of view that one finds in Section
497 a position in law which takes a sympathetic and charitable view of the weakness of
women in this country." The Court also opined that the alleged discrimination in favour of
women was saved by the provisions of Article 15(3) of the Constitution which permits the
State to make "any special provision for women and children".

Yusuf Abdul3 , on appeal to the Supreme Court argued that Section 497, by assuming that the
offence of adultery could only be committed by a man and mandating a court that the
adulteress wife be not punished even as an abettor, offended the spirit of equality enshrined in
Articles 14 and 15 of the Constitution. Such an immunity assured to the adulteress wife

3
Yusuf Abdul Aziz vs The State Of Bombay 1954 AIR 321, 1954 SCR 930

10
(even) for her willing participation in the adulterous sexual activity, it was argued, did
amount to a sort of licence to her to commit and abet the offence of adultery.

Vivian Bose, J., speaking for the Constitutional Bench (comprising M.C. Mahajan, C.J.,
Mukherjea, S.R. Das and Ghulam Hasan, JJ.) was not impressed by the appellant's
interpretation of Section 497 as well as of Articles 14 and 15. His Lordship, like Chagla, C.J.,
relying heavily upon Article 15(3), held that Section 497 is a special provision made for
women and therefore is saved by clause (3) of Article 15. To the argument that Article 15(3)
should be confined only to provisions which are beneficial to women and should not be used
to give them a licence to commit and abet a crime with impunity, the Apex Court responded:

"We are unable to read any such restriction into the clause; nor are we able to agree that a
provision which prohibits punishment is tantamount to a licence to commit the offence of
which punishment has been prohibited."

More than three decades after the Supreme Court's pronouncement in Yusuf Abdul Aziz case
constitutional vires of Section 497 came to be reagitated in Sowmithri Vishnu v. Union of
India4 . It was contended that Section 497, being contrary to Article 14 of the Constitution,
makes an irrational classification between women and men as it: (i) confers upon the husband
the right to prosecute the adulterer but it does not confer a corresponding right upon the wife
to prosecute the woman with whom her husband has committed adultery, (ii) does not confer
any right on the wife to prosecute the husband who has committed adultery with another
woman, and (iii) does not take in its ambit the cases where the husband has sexual relations
with unmarried women, with the result that the husbands have a free licence under the law to
have extramarital relationship with unmarried women.

The Supreme Court rejected these arguments and ruled that Section 497 does not offend
either Article 14 or Article 15 of the Constitution. The Apex Court also brushed aside the
argument that Section 497, in the changed social "transformation" in feminine attitudes and

4
1985 AIR 1618, 1985 SCR Supl. (1) 741

11
status of the woman in a marriage, is a flagrant instance of "gender discrimination",
"legislative despotism" and "male chauvinism", by opining that it is for the legislature to take
note of such a "transformation" while making appropriate amendments to Section 497. The
argument that Section 497 is a kind of "romantic paternalism" premised on the traditional
assumption that a woman, like a chattel, is the property of man, was also rejected by the
Court.

The woman petitioner also argued that the right to life, as interpreted by the Supreme Court
in the recent past, includes the right to reputation and the absence in Section 497 of the
provision mandating the court to hear the married woman with whom the accused has
allegedly committed adultery violates her constitutional right to life under Article 21.
Assuming that the right to be heard is concomitant with the principles of natural justice and
believing that a trial court allows the married woman to depose her say before it records
adverse findings against her, the Apex Court held that the absence of a provision mandating
hearing the adulteress wife in Section 497 does not make the section unconstitutional.

However, one may find it difficult to convince himself about the rationale of the disability of
the "wife" of the adulterer to prosecute her unfaithful husband. In V. Revathi v. Union of 15
India5 . this disability was relied upon by a wife to challenge the constitutional propriety of
Section 198(2) read with Section 198(1) CrPC, which, as mentioned earlier, empower the
husband of the adulteress wife to prosecute the adulterer but does not permit the wife of an
adulterer to prosecute her promiscuous husband. Probably realising that the section also does
not permit the husband of the adulteress wife to prosecute her for her infidelity and recalling
the ratio of Sowmithri Vishnu case, she asserted that whether or not the law permits the
husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting
her unfaithful husband. Such a statutory provision, which is premised on gender
discrimination in contravention of the gender equality guaranteed in the Constitution, is, the
petitioner wife argued, unconstitutional as it amounts to an "obnoxious discrimination".

5
V. Revathi vs Union Of India & Ors, 1988 AIR 835, 1988 SCR (3) 73

12
Upholding the constitutionality of Section 497 IPC and Section 198(2) CrPC, which
according to the Court "go hand in hand and constitute a legislative packet" to deal with "an
outsider" to the matrimonial unit who invades the peace and privacy of the matrimonial unit,
Thakkar, J. of the Apex Court observed:

"The community punishes the 'outsider' who breaks into the matrimonial home and
occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship
with one of the spouses subject to the rider that the erring 'man' alone can be punished and
not the erring woman. ... There is thus reverse discrimination in 'favour' of the woman rather
than 'against' her. The law does not envisage the punishment of any of the spouses at the
instance of each other. Thus there is no discrimination against the woman insofar as she is not
permitted to prosecute her husband. A husband is not permitted because the wife is not
treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with
Section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out
even-handed justice to both of them in the matter of prosecuting each other or securing the
incarceration of each other."

The constitutional validity of Section 497 is upheld ostensibly on the impression that it is
favourable to the woman as it keeps her out of the purview of criminal law. Such an approach
is predominantly premised on a set of moot assumptions pertaining to female sexuality and
the inability of the higher judiciary to appreciate current social "transformation". The Court,
time 16 and again, asserted that it is for the legislature to take cognizance of the social
"transformation" and not for it.

It is obvious that no adultery can be committed unless a woman is a consenting partner. The
judicial perception that only a man can be "an outsider", who has potential to invade the
peace and privacy of the matrimonial unit and to poison the relationship between the
unfaithful wife and her husband, therefore, seems to be, with due respect, less convincing and
unrealistic. "An outsider woman", can, like "an outsider man", be equally capable of
"invading" the matrimonial peace and privacy as well as of "poisoning" the relationship of
not only her own matrimonial home but also that of her paramour. Similarly, the judicial

13
opinion that Section 198(1) read with Section 198(2) CrPC, disqualifying the wife of an
unfaithful husband for prosecuting him for his promiscuous behaviour, with due respect, is
unconvincing and illogical.

14
 IMPACT OF SECTION 497 OF INDIAN PENAL CODE ON THE SOCIETY

The section 497 of the Indian penal code or the adultery had very serious impact on the
fragile minds of the people of the nation. The historical story behind the incorporation of the
section in the Indian penal code in 1860 tells us a lot about it. Adultery as a ground of divorce
was practiced from a long time as before that there was no hindu law which prohibited it.

The hindu men were free to have as many marriages as they wanted and their sexual
intercourse with a married woman was not considered to be an offence.

However CJ Dipak Mishra in the case of Joseph Shine vs Union of India6 Decriminalized
adultery under section 497 of ipc and observed that it was no more an offence.

Critics voicing their opinion in favour of legalising adultery put forth the view that adultery
was rightly decriminalised as it was not gender neutral. If two persons want to get into
consensual sex, it is no one’s concern to stop them from doing so.

How the society perceives this and how correct is this in a moral sense should be outside the
purview of this law. In the eyes of law, it should just be two adults who had consensual sexual
intercourse. Further, there should be no confusion between personal laws and community laws,
because when it comes to legalising community laws they are done so considering the moral
fabric of the society and the same is not true for personal laws.

In the 1950-55 when the Hindu Code bills and the Dowry Prohibition Acts(1961) were passed,
the popular sentiment was that men are the ones who commit wrong and hence, there is a need
to give a special layer of protection for women’s condition as they were in a vulnerable
condition in the society at that time. But now women are literate, independent, aware of their
rights, and hence, there is no need for such a law in the present scenario.

However striking down the section also created a tremor in the society. Apart from the
positive impacts that the judgement that it was criticized by a large chunk of the society.

“In order to maintain a smooth functioning of the society, there are few things which are
necessary and marriage is one among them. It is very much essential for society because it

6
WRIT PETITION (CRIMINAL) NO. 194 OF 2017

15
gives future generations a stable and caring environment. Adultery not only threatens but also
destroys such an environment.

Legalising adultery can be considered something that is influenced by the western civilisation,
and here an important point to be taken note of is that the divorce rate in the western countries
is 52% and still on a rise. In order to stop India from following the same fashion it is very
essential not to encourage extra-marital affairs which would be on a rise if adultery is
decriminalised”.

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 LANDMARK CASES AND JUDGEMENTS

 W.Kalyani vs State TR.Inspector of Police & anr7

In this case, the appellant, though she is charged under Sections 497 of the Penal Code, she
cannot be punished under it. The provision is currently under criticism from certain quarters
for showing a strong gender bias for it makes the position of a married woman almost as a
property of her husband. But in terms of the law as it stands, it is evident from a plain reading
of the 11 Section that only a man can be proceeded against and punished for the offence of
adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an
abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to
the charge of adultery and she cannot be proceeded against for that offence
 V. Revathi by Thakkar J8

It was observed in this case: “The argument in support of the challenge is that whether or not
the husband has the right to prosecute the disloyal wife, the wife must have the right to
prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife
has been disloyal to him has no right under the law to prosecute his wife, inasmuch as by the
very definition of the offence, only a man can commit it, not a woman. The philosophy
underlying the scheme of these provisions appears to be that as between the husband and the
wife social goods will be promoted by permitting them to 'make up' or 'break up' the
matrimonial tie rather than to drag each other to the criminal court. They can either condone
the offence in a spirit of 'forgive and forget' and live together or separate by approaching a
matrimonial court and snapping the matrimonial tie by securing divorce. They are not
enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved
from the trauma of one of their parents being jailed at the instance of the other parent.
Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of
little consequence. For, the court is not the arbiter of the wisdom or the philosophy of the law.
It is the arbiter merely of the constitutionality of the law.”

7
2011 STPL(Web) 1023 SC
8
AIR 1988 SC 835

17
  Joseph Shine Vs Union of India9

In this case “Joseph Shine, a 41-year-old non-resident Keralite filled Public Interest
Litigation under article 32 of the constitution, the petition challenged the constitutionality of
the offence of adultery which was defined under section 497 of IPC. In a 45-page petition,
Shine had liberally quoted American poet Ralph Waldo Emerson, women rights activist Mary
Wollstonecraft, and former UN secretary Kofi Anna in order to emphasize his views on
women rights and gender equality”

The constitution bench of the apex court headed by CJ Dipak Mishra observed that
“ a husband is not the master of his wife, women should be treated with equality along with
men. Justice Chandrachud held, the law perpetuates the subordinate status of women, denies
sexual autonomy, dignity and is based on gender stereotypes. Critics have called the law of
adultery as one that is staggeringly sexist, Crudely anti-women and additionally violative of
the right to equality”10.

9
WRIT PETITION (CRIMINAL) NO. 194 OF 2017
10
https://blog.ipleaders.in/legalising-adultery-in-india/

18
 CONCLUSION

It is still to be seen where the present debate on the opinion of the Supreme Court leads us to.
Although the Supreme Court has put forth its view that the law wrongly treats women as the
property of men and goes against the fundamental rights, adultery is still a valid ground for
divorce. Hence, it can be viewed as something which places a reasonable restriction, which
means that there are valid limitations on sexual autonomy.

Hence, it can be concluded that the legal system should not regulate whom one should sleep
with but rather regulate the process of separation if one of the two partners violate the sanctity
of marriage. Moreover the criminalisation of broken trust in a marriage neither leads to a couple
coming back to a blissful way of life nor does it change the social behaviour of the society.

The decriminalisation of it was thus a great decision taken by the apex court as it free the
women from facing the resentment of the society. It thus provided women with equal parity as
men.

19
 BIBLIOGRAPHY

STATUTES REFERRED

 The Indian Penal Code

 1860 The Code of Criminal Procedure, 1973

WEBSITES

 · www.wikipedia.org
 · www.indiankanoon.org
 www.legalserviceindia.com
 https://blog.ipleaders.in/legalising-adultery-in-india/

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