Section 497: Revisiting adultery judgments in India

New Delhi, Sep 27: Adultery is recognised as a criminal offence, remarkably, punishes the man who has had consensual sexual intercourse with a married woman, but not the married, unmarried/divorced/widowed woman who has had consensual sexual intercourse with a married man.

The current constitutional challenge pertains to the decriminalisation of this act, enshrined in Section 497 of the Indian Penal Code, which mandates a maximum punishment of five years in prison.

Section 497 reads: "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."

As the Supreme Court takes up the matter today, it is pertinent to revisit the cases. Here are some of the notable cases under adultery law

Navy commander K M Nanavati

One of India's popular cases of marital infidelity and drama is that of navy commander K M Nanavati , who shot dead his wife Shelvia's lover. the businessman Prem Ahuja. While Nanavati faced prosecution for murder, Sylvia did not. That 1950s crime of passion was the reason India abolished jury system. That case has inspired several Bollywood movies, the most recent being Rustom.

Yusuf Aziz case

In 1951, Yusuf Aziz challenged its constitutionality, but Bombay High Court upheld the section, saying that the Constitution has such special legislations for women.

The court held that by no means was a licence given to women, but the said section exempted them from culpability as per Article 15 (3) of the Constitution, which reads that nothing in Article 15 shall prevent the state from making "special provisions" for women.

In 1971, the Fifth Law Commission recommended changes in the provision, including making the law gender-neutral and reducing the prison term from five to two years.

Sowmithri Vishnu case

Another important judgement regarding adultery law under Section 497 came in Sowmithri Vishnu versus Union of India case of 1985. The Centre has cited this judgment in its 2018-affidavit to back Section 497 of the IPC.

In Sowmithri Vishnu v Union of India (1958), the court not only reiterated the ratio held in Yusuf Aziz that women cannot be held as adulterous, but went one step further to claim that women could not be brought under the purview of this section as "it is commonly accepted that it is the man who is the seducer, and not the woman."

The Supreme Court held that men were not allowed to prosecute their wives for the offence of adultery in order to protect the sanctity of marriage.

Revathy case

In the next significant case, V Revathy v Union of India (1988), the court had interpreted the reasoning to not include women under the law because it promoted "social good in the society", as the law gave the couple a chance to "make up" and condone the offence and thereby not bring each other to court. It was also opined by the court that adultery needs to be seen as a "shield rather than a sword".

The court ruled that the existing adultery law did not infringe upon any constitutional provision by restricting the ambit of Section 497 to men.