Section 497 defines and prescribes punishment for the offence Adultery.
Sec. 497. Adultery:
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 a case the wife shall not be punishable as an abettor.
1. Adultery is a sexual intercourse by a man with the wife of another person.
2. The offender knows or has reason to believe that the woman to be the wife of another man. It is not necessary that the offender should know whose wife she is. It is sufficient that she is a married woman.
3. Such intercourse must be without the consent of the husband. If the husband consents, it cannot be termed as adultery.
4. Such intercourse is not defined as a rape.
5. Punishment: Five years or with fine or with both.
6. The wife shall not be punishable as an abettor.
7. Adultery is an offence committed by a third person against a husband in respect of his wife.
8. If a married man commits sexual intercourse with an unmarried woman or with a widow, it is not adultery.
B. Smt. Sowmithri Vishnu vs. Union of India and another (AIR 1985 SC 1618)
Sowmithri and Vishnu were the wife and husband. Disputes arose between them. She went away from the matrimonial home, and had been living with one Dharma Ebenezer She filed a divorce petition before the District Judge on the grounds of desertion.
While the proceedings were pending, the husband filed a criminal case under Section 497 against Dharma Ebenezer for adultery with his wife. The trial Court gave the divorce on the ground of desertion. The husband appealed to the High Court contending that the divorce was granted on the ground of desertion but it should be on the ground of adultery.
If the divorce is granted on the ground of adultery, Dharma Ebenezer should have been punished under the offence of adultery. Wife appealed to the Supreme Court challenging the validity of Section 497. She contended:
(a) Section 497 gives the right to husband to prosecute the adulterer, but it does not give the same right to wife to prosecute the woman with whom her husband has committed adultery. It is a gender discrimination and against the spirit of equal rights given by the Constitution of India.
(b) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.
(c) Section 497 does not recognize the cases where the husband has sexual relations with an unmarried woman; with the result that husband has, as it were, a free license under the law to have extra-marital relationship with unmarried woman or widow.
The appellant also complained that Section 497 is a flagrant instance of ‘gender discrimination’, ‘legislative despotism’ and ‘male chauvinism’. She urged that the Section may, at first blush, appear as if it is a beneficial legislation intended to serve the interests of women.
But on closer examination, it would be found that the provision contained in the Section is a kind of ‘Romantic Paternalism which stems from the assumption that women, like chattels, are the property of men. She also contended that Section 497 is against the Articles 14 and 15 of the Constitution.
While appreciating the arguments of the petitioner-appellant, the Supreme Court upheld the retention of Section 497. It observed that the Section 497 does not show any discrepancy between male and female. In fact, it protects the wrong-doer-wife, who is also accomplice with adultery.
Section 497 clearly exempts the wife. The framers of the Code, and Law Commission observed the social and economical structure of the society and family institution. In our society, when a wife of a person enters into sexual intercourse with a third person, it is a civil death to the husband.
Hence this peculiar right is given to the husband. Moreover the Section imposes the liability upon the third person, who has sexual intercourse with another’s wife, not upon the wife.
The framers of Code strongly believe that it is the man to seduce the woman, but not woman. If the Section 497 is re-defined the right of action to the third person’s wife, several Sections of the Code shall have to be re-structured.
For example, ten years punishment is imposed upon the offender of dacoity. Whereas for the adulterer only 5 years punishment is imposed. Entering into another’s family life is no less than dacoity. If the same argument is taken into consideration, at least ten years punishment should be imposed upon the adulterer. The object of Section 497 is to maintain stability of marriages and family institutions.
That is why it is included in the special head of “Offences relating to marriages”. If a married man enters sexual relations with any unmarried girl or widow, there are several other remedies available to the wife of that husband. Section 497 does not infringe the provisions of Articles 14 or 15 of the Constitution.
The Supreme Court dismissed the Writ Petition and also quashed the complaint under Section 497 of the husband, opining that as there was no use to inquire into the matters of adultery, as the trial Court already granted divorce.