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.
Understanding the Section
Section 497 of the Indian Penal Code (IPC) addressed the offence of adultery, stating that a man who engages in sexual intercourse with the wife of another man, knowing that she was married and without the consent or connivance of her husband, would be guilty of the offence of adultery, provided that it did not amount to rape.
Under this section, the law allowed for the punishment of only the man who had sexual relations with a married woman, treating the woman, or wife, as a victim of the offence and not as an abettor in the process, based on the assumption that the wife was under the protection of her husband.
Essential Elements
In order to prove the crime of adultery, four things are necessary:
- Sexual Intercourse: There must have been sexual intercourse between a man and married woman, and it must have been voluntary on the part of the woman.
- Knowledge: The accused man must have known or have reason to believe that the woman was married to another man.
- Without Consent: The act must have been done without the consent or connivance of the husband. If the husband consented or was involved, the act would not fall under this section.
- Does not amount to Rape: The sexual intercourse must not amount to rape; that is, it must have been consensual on the part of the woman.
- Liability of the Man: Only the man could be punished for the act; the married woman could not be punished.
Punishment under Section 497 of the IPC
- Imprisonment of up to 5 years of either rigorous or simple imprisonment,
- A fine, or
- Both imprisonment and fine.
This made it apparent that while adultery was treated as a serious offense, the punishment was less severe than crimes like rape and abduction.
Clarification of the Rule
Women were treated in the section with no agency in adultery. The married woman was only a victim of the man’s seduction, not as a partner in the crime. Additionally, the husband’s consent or connivance was determinative, which makes women property of men; under their protection.
Illustrations
- Without Husband’s Consent: A has sexual intercourse with B, knowing she is married to C, and does so without C’s consent. A commits adultery under Section 497.
- With Husband’s Consent: A has sexual intercourse with B, the married woman, but with her husband C’s consent. A would not be committing adultery.
- With Consensual relationship: A has sexual intercourse with B (the married woman) and A knew she was married. A is guilty of adultery, but B is not punishable.
Present Position
The Supreme Court of India declared in Joseph Shine vs. Union of India (2018) that adultery is no longer a crime, thereby declaring Section 497 of the Indian Penal Code unconstitutional. Adultery continues to be a cause for civil divorce and also a crime punishable under the military law for those serving in the armed forces.
Since the judgment in 2018, adultery is no longer a criminal offence in India but remains a valid ground for divorce under personal and family laws.
The prior position was reflective of antiquated views of marriage and gender. Accordingly, to the prior decriminalization of adultery, Indian law has now moved toward the position of recognizing marriage as equals, free from the notion about treating women as property.