IPC 497 – Adultery recent Development

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IPC 497 – Adultery recent Development

Dr. G.Singh


IPC 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 offense of rape, is guilty of the offense 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.

Most important thing for a civilized society is rules or law. Law exist for every society all over the word and it exist from the begning. I can not claim about the time when human was just an animal and he was in forests but as soon as human started forming societies he drafted rules for their members. It may possible that at different time drafted rules was different but they exist.

As long as I can remember the ramayan yug was also based on law, it is true the governing authority and passing of laws was different but it exist in certain form.

It may not be important that how rules or law formed but it is important that law should be in a shape which is suitable to punish criminals without differentiating between members. What I want to say is law should be equal for every member without knwing about relegion/cast/gender etc of accused.

Yes India has almost similar approach, we have a lady with blind eye as symbol of justice. Which says law is equal for everyone and it can not differentiate between members. But it is truly implimented ?

People may have different views on this but my view is the symbol used for justice is never implimented truly. When and wherever emotion will be considered as basic for justice, injustice will be there inbuild. It may possible that people don’t see it in time or they ignore it delibratly but injustice is injustice.

Although there are many example but IPC 497 is recent example for this injustice. When and How the section was passed that is not important (although information can be searched in google) but what is important is its content.

I remember a story.

Long time ago in North Hills a king and his kingdom was known for his his Law, Justice and Implementations. Citizens of state were also aware about their rights. One day king went to forest with his son. Because of his son one men was killed and his son was found guilty. This was the first time when kings reputation was tarnished because he failed to provide justice, he was emotionally attached with his son and he let him free.

Why ? One incident and kings fame was nowhere because he choose emotion over Justice. Where he was wrong ? What happen to his kingdom ? What happen to his son ? How citizens of kingdom reacted ? All and many more question rise but they are not part of this story. Let me come to the point.

When and wherever JUSTICE & EMOTION move together justice cant be ensured. India where society is emotionally attached with females expecting justice for Male is dream or fantasy. Let us see what happen when emotion and justice stand together.

Murder : One person coming back from office late night. His parents, wife and kids waiting at home but he never returned back because he was murdered for some reason. As per Law the criminal must be punished and he get what he deserved. Law and Justice not worrying about victims parents, wife and kids just because they are not part of Law. Law is there to just ensure justice not to see beyond the limit of crime. Here what happen to parents, wife and kids can’t be the part of justice. Punishment is same in both the cases, if the men is one ans only son of family or family has 3 son.

Rape : One female (scientifically male also can be victim of rape but there is no law for MALE RAPE so i exclude that) when coming back late night, she was raped by someone. She is alive, she return back for those waiting at home. Law must be drafted to provide justice. The person must be punished. What should be punishment is matter of debate but one thing is confirm it can’t be same as in murder. Why ?

Is our Law drafted for the same ? No. Here Law took a different path from what it suppose to take. In case of murder the accused is assumed to be INNOCENT until he is proved CRIMINAL. That is correct because no-one can be criminal until proved. IO can be wrong and in many cases it happen. But when it is RAPE law took entirely different path, Is start from the assumption that ACCUSED is CRIMINAL and he will be CRIMINAL until he is proved INNOCENT. There can be thausands of logic behind this assumption but one of them is how she can prove ? I am asking how he can prove ? If female can’t prove situation doesn’t change for male.

Here at-place of serving justice LAW and COURTS start playing with emotion. The most popular logic is SHE WILL DIE EVERYDAY AFTER RAPE. Why and how it is part of JUSTICE. She may be disturbed or may not be no-one knows but it is not part of JUSTICE it is part of society.

When LAW & EMOTION stand together Rape looks like a much bigger crime then MURDER but when we stand where on LAW & JUSTICE exist MURDER is much bigger crime and it must be.

India where society is not only emotional but biased toward females. Law maker must carefully exclude EMOTION from JUSTICE. Unfortunately Law maker failed at this point and Delhi HC commented about this in one of his judgment regarding.

Another example of section where law maker did injustice toward men or they failed to provide justice to men just because they wanted to save one gender from punishment. Yes I am talking about IPC 497. In this section soul of justice was killed.

IPC 497 in original form was drafted to punish men (a specific gender) without worrying whose fault was. That way the soul of justice was killed. Because the law was gender biased.

Recently the biased nature was challenged in SC, motive was to make it gender neutral so that men and women both can be punished for the crime. And SC of India take action on the biased Law and at place of making in Gender Neutral the section itself is removed from Law. SC of India said physical relation between men & women are not criminal offense therefore none can be punished. Although still adultery can be used to apply for Divorce.

Different people have different opinion about the development. Some people are happy with the ruling and some other saying it is attack on the institution of Marriage. There are other view too, but I am just focusing on men and his future (not because I am against women but there are many more resources available for women).

Personally I believe marriage is CIVIL in nature and the offenses related to handled in CIVIL manner. So the adultery too.

But This is true when we are having this as a basic rule. Unfortunately we Indians are habitual of making Marriage and related offenses as Criminal, specially when it is about men. Just for example recently SC of India declared ‘Instant Triple Talak’ and immediately Govt declared it a criminal & punishable offense. We Indian do not consider Marriage as Civil but we assume it as Criminal. So how recent development going to affect men ?

SC says ‘women can’t be treated as subordinates’, Section 497 IPC ‘deprives women of dignity’, hence ‘Adultery’ decriminalized and held, unconstitutional!

Now if Wife commits adultery, and the husband looks for some remedy, he has NIL!

Till yesterday too, the husband could have prosecuted wife paramour only u/s 497 IPC, as the wife had immunity against it and couldn’t have been prosecuted for adultery earlier too. Now even paramour is free from any prosecution!

Apart from that, by virtue of decriminalization of 497 IPC, asking your wife to leave adultery or not to sleep around with anyone will also be treated as Domestic Violence against wife!

If the husband do not like or cooperate with wife’s adulterous behaviour, he should be ready to be prosecuted for having commited cruelty against wife!

Husband can no doubt seek civil remedy like Divorce or Judicial Separation from Family Court, making adultery a ground, BUT for that too court will demand irrebuttable, reliable and concrete evidence to prove adultery, any good evidence like virtually a blue film, which in itself is a herculean task!

Now, if Husband commits adultery, he can very well be prosecuted with the full package of all the existing gender biased laws!

Most importantly, with the observation ‘that mere adultery cannot be a crime, but if any aggrieved spouse commits suicide because of life partner’s adulterous relation, then if evidence produced, it could be treated as an abetment to suicide’, as reported by SCC; is the Hon’ble Supreme Court trying to suggest that suicide is the only option left for the aggrieved spouse to prosecute the adulterous partner?

suicide is the only option left for the aggrieved spouse (husband) to prosecute the adulterous partner