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Report No. 156

III. Adultery

9.43. In the First Report on the Draft Indian Penal Code, adultery was not made an offence. However, the First Law Commission in its Second Report on the Draft Indian Penal Code, after giving due consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code.1

1. Second Report on the Draft Indian Penal Code (1847), Law Commission.

9.44. The offence of adultery under section 497 is very limited in scope in comparison to the misconduct of adultery in divorce (civil) proceedings. The offence is committed only by a man who has sexual intercourse with the wife of another man without the letter's consent or connivance. The wife is not punishable for being an adulteress or even as an abettor. Punishment is imprisonment of either description for a term up to five years or with fine or with both.

9.45. The Law Commission in its 42nd Report recommended the retention of section 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. The Commission also recommended that five years' imprisonment is "unreal and not called for in any circumstances and should be reduced to two years".1 The Commission recommended that the section may be revised as follows:-

"497. Adultery.-If a man has sexual intercourse with a woman 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, the man and the woman are guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."2

1. Forty-second Report on the Indian Penal Cade, (1971), para. 20.18.

2. Ibid.

9.46. The constitutionality of section 497 was challenged under Article 32 as violative of the right to equality in Article 14 in Sowmithri Vishnu v. Union of India, AIR 1985 SC 1618: 1985 Supp SCC 137. The basis of challenge was that the section makes an irrational classification between men and women and it unjustifiably denies to women the right given to men. This section confers upon the husband the right to prosecute the adulterer but does not confer any right upon the wife of the adulterer to do so. The Supreme Court negatived the contention and upheld the constitutionality of section 497.

Clause 199 of the Indian Penal Code Amendment Bill, 1976 reads as section 497:

"Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape, commits 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."

The I.P.C. (Amendment) Bill has brought in the concept of equality between sexes in marriage vis-a-vis the offence of adultery in the substituted section 497. However, the Law Commission recommends that the phraseology of clause 199 has to be modified on the following lines to reflect the concept of equality between sexes. Accordingly clause 199 shall read as:

"Section 497.-Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse not amounting to the offence of rape, commits 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."

The Supreme Court in Sowmithri Vishnu case had observed that "it is for the Legislature to consider whether section 497 should be amended appropriately so as to take note of the 'transformation' which the society has undergone". The proposed change reflects the transformation of women's status in the Indian society. The punishment of five years remains the same.

9.47. If section 497 is amended on the lines indicated above, sub-section (2) of section 198 of the Code of Criminal Procedure, 1973 needs to be suitably amended.



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