The Indian Penal Code is a criminal code that governs the substantive part of criminal law in India. This blog gives an in-depth view of two controversial sections of the Indian Penal Code, section 497 and section 498. Section 497 of IPC deals with the concept of adultery and section 498 criminalizes the act of enticing away or taking away, concealing, or detaining a married woman with the intent of illicit intercourse.

We will delve into the intricacies of the sections while exploring their definitions, historical context, and some landmark judgments that have helped it evolve. We will explore how these sections have influenced societal norms and perspectives on gender equality and individual rights.

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BRIEF OVERVIEW

Section 497 IPC: Adultery

  • Section 497 of the Indian Penal Code criminalized adultery, making it an offense, if a man engaged in sexual relations with a married woman without the permission of her husband. This section did not hold women liable in the act and treated men as the only offenders.
  • While the law treated adultery as a crime, at the same time this law treated women as the property of the husband, reflecting the patriarchal mindset of the society.
  • The Supreme Court in 2018 decriminalized adultery and struck down this section in the landmark judgment of Joseph Shine v. Union Of India and declared it unconstitutional. The court held that this section violated rights such as equality and dignity as it considered women to be the property of men.

Section 498 IPC: Enticing or Taking Away or Detaining with Criminal Intent a Married Woman

  • Section 498 of the Indian Penal Code punishes anyone who tries to entice(attract or tempt by offering pleasure or advantage), take away, or detain a married woman with a criminal or an illicit (unlawful) intention.
  • The section was designed to protect the purity of marriage and prevent the interference of a third party in a marriage. Its focus was on safeguarding married women from exploitation by others.
  • This section is criticized and still debated for gender bias in modern law, as it portrays women as objects of possession and control.

IPC SECTION 497: ADULTERY

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DEFINITION

According to Section 497 of the Indian Penal Code, adultery is defined as follows:

“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 a case the wife shall not be punishable as an abettor.”

In simpler terms, any individual (man) who has a sexual relationship (not rape) with a woman he believes to be married, without the permission of her husband is guilty of the offence of adultery. He can be punished with an imprisonment of five years, a fine, or both.

Women involved in the sexual act were not held liable. On the other hand, the burden of the act was solely put upon the men.

Moreover, the section was seen as controversial because it treated women as the property of men.

The origins of the law can be traced back 150 years, during the colonial period. These sections were enshrined under the statute of the Indian Penal Code which was enacted by the British in 1860. This law reflected the Victorian-era British moral standards of the time, heavily emphasizing patriarchal values.

CASE LAWS

Here are some case laws that shaped the judgments on adultery, leading to its current position- Decriminalization of Section 497 of the Indian Penal Code.

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Yusuf Abdul Aziz v. State of Bombay (1954)

  • In this case, the constitutional validity of section 497 was challenged. It was argued that this section violated the right to equality (Article 14) guaranteed under the Indian constitution as it punished only the men, though both genders were involved.
  • The main argument was on the issue that this law punished only the men for the offense of adultery and at the same did not hold women accountable even if there was active participation from the other gender.
  • The Supreme Court of India maintained the validity and constitutionality of section 497 of the IPC on the grounds of Article 15 (3) of the constitution, which allowed for protective discrimination for women. The court ruled that the exemption of women was made to protect them as they were seen as “victims” of adultery rather than an equally responsible party of the offense.

Sowmithri Vishnu v. Union of India (1985)

  • The constitutionality of this section was again challenged in this case. The petitioner argued that this law had some severe gender bias against both men and women and it did not consider the moral and social values.
  • It was argued that this law assumed that women were the property of their husbands and at the same time, only men were allowed to file a case of adultery. Also, only men were punished for the offense even if women were involved.
  • The Supreme Court once again upheld the constitutional validity of this section stating that the law protected the purity of the marriage and at the same time held that the offense of adultery was committed against the husband and did not find the law discriminatory.

The judgment reinforced the patriarchal nature of the society as well as the traditional norms of marriage. This judgment at the same time ignored the gender bias completely.

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V Revathi v. Union of India (1988)

  • This case again challenged this section as unconstitutional because it forbade both husband and wife from prosecuting their spouse for adultery. The petitioner argued that both partners should have the right to take legal action. Only men were allowed till that time. It was argued that women should also be allowed.
  • The case mainly focused on whether the lack of common prosecution rights violated the right to equality.
  • The challenge was rejected by the Supreme Court and the validity of section 497 was upheld on the ground that prosecuting spouses and their extramarital partners would create unnecessary marital conflict.

The judgment showcased the one-sided nature of adultery law and the gender bias just to maintain the institution of marriage.

Reflecting Societal Norms

All the above judgments also reflected the deeply rooted gender bias and patriarchal mindset of the society, such as

1. WIFE BEING TREATED AS HUSBAND’S PROPERTY:

The law treated women as the property of men and placed the wife under their control. The law criminalized adultery only if the sexual act took place without the consent of the husband. If the husband permitted the relationship, the adulterer (another man) could not be prosecuted.

This law resonated with the patriarchal mindset as women had no personal autonomy in matters of sexual relations. Their rights were controlled by their husband. Women under this law were considered as the man’s possession.

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2. NO PUNISHMENT FOR WOMEN:

Section 497 of the IPC punished only the men involved in the adulterous act, even though women were active participants in the act. The law mainly focused on the man involved in the act. This was a gender bias towards men. The law removed any legal responsibility for women for the act of adultery.

3. NO PROVISIONS FOR WOMEN TO FILE CASE UNDER THE LAW:

This act focused on adultery acts of women in the marriage. If the man committed the act of adultery, the law had no provision for punishing the male counterpart. The law allowed husbands to file a case for extramarital affairs while women had no legal remedy to take action against men who committed adultery with another woman.

This one-sided approach favored men and ignored the issues of women. There was no provision to prove and punish adultery committed by the husband.

DECRIMINALIZING ADULTERY

Joseph Shine v. Union of India (2018)

  • This was the landmark case that led to the decriminalization of adultery in India. Joseph Shine, the petitioner argued that this law violated the Right to equality, Right To Privacy, and Freedom of choice. He challenged the constitutionality of Section 497.
  • The main issue in this case was that under this section, men had the absolute power to prosecute another man for adultery but at the same time, women did not have the same rights. It was argued that women were treated as the property of the women. The law did not give importance to women’s consent and failed to treat both genders equally.
  • The 5 judge bench of the Hon’ble Supreme Court including CJI D.Y. Chandrachud and the then CJI, Dipak Misra struck down section 497 and declared it unconstitutional. The court stated that this law was based on outdated gender norms and that it violated the right to equality, freedom of choice, and dignity of women.
  • The court also held that adultery would be a ground for divorce but could no longer be treated as a criminal offense.

The judgment recognized the autonomy of women, decriminalized adultery, and supported the right to privacy and personal freedom in private matters.

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KEY ARGUMENTS FOR DECRIMINALIZATION

The key arguments behind decriminalizing adultery were that:-

  1. It followed past gender norms that are not relevant in the present situation.
  2. It was also a violation of personal liberty given under Article 21 of the Indian constitution.
  3. The right to privacy includes the freedom to make personal decisions about intimate relations. The state should not be interfering in a person’s matters.
  4. The section did not treat men and women equally. The law saw women as men’s property and at the same time established double standards by not punishing the wife involved in the extramarital act. Under this section, women were denied the right to file a case against their husbands.

IMPACT OF DECRIMINALIZATION

1. There has been a change in perception of marriage and personal relations

The ruling promoted a progressive understanding of marriage, underlining that marriage was a partnership of equals. There has been an emphasis on private and personal matters. It has also been stressed that the court should not interfere in these matters unnecessarily. Marriage is now seen as a relationship based on mutual respect and equality.

2.Empowerment of Women

With decriminalization of adultery in India there has been a big impact on women’s rights. Women now have autonomy and equality, they now have the freedom to make their own decisions and do not need permission from their husbands.

Post the judgment, women don’t feel secondary to men. Equal importance is given to women’s autonomy and rights. It has encouraged society to become gender neutral and they have come to realize that it’s not always women’s fault.

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3. Reduction in Patriarchal Control

As noticed, the law saw women as a man's property. The judgment has weakened the patriarchal notions spread wide in the society. This law proved to be biased for both genders. It reflected the patriarchal norms. With this judgment, the legal system has become more gender-neutral and inclusive.

4. Gender neutrality in criminal law

There has been a good shift towards gender equality. Women are now protected from exploitation and misuse. Women had no legal standing according to this law. They were considered secondary to men.

At the same time, we have struck down a gender bias law, upholding the principle of gender neutrality. The ruling also aligns with the constitutional values and principles. This has resulted in a significant reduction in frivolous cases and litigation.

5. Privacy and Personal Liberty

With the judgment, right to freedom and privacy under article 21. The ruling changed the situation.

The law reflected the moralistic way adopted by the Victorian era. Post-judgment moral and legal subjects have been separated and are dealt with differently. With this judgment, the institution of marriage is considered a partnership of equals, wherein both partners have an equal amount of say. This has also opened up dialogues and civil remedies in marital disputes.

There also has been a shift in perception of marital fidelity, Adultery is now a ground for divorce and no longer a crime.

7. Prevention of Misuse

This section was often misused to harass the other partner. This ruling has prevented the misuse and reduced the burden on the justice system with false and frivolous cases.

NOTE: Adultery has been decriminalized and is now considered a ground for divorce.

IPC 498

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DEFINITION

IPC Section 498 states -

“Enticing or taking away or detaining with criminal intent a married woman.--Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.“

In simpler terms, any individual who takes away or confines a married woman from her husband or (any man taking care of the woman on behalf of her husband) with a criminal and unlawful intention like forming sexual relations shall be imprisoned for up to 2 years, or fine, or with both.

The law was made with a focus on protecting married women from others working with ill intentions.

KEY ELEMENTS

  • Enticing or taking away a woman: This section criminalizes enticing or taking away a married woman without the consent of her husband. Any individual who with criminal intent tries to lure or convince a woman to leave her home is considered an offender under this section.
  • Detaining: This section also punished individuals who would detain (hold up) or confine a married woman with ill intent to be considered liable under this section.
  • The intention of illicit Intercourse: The person committing such an act must do so with the intent of illicit relations (extramarital physical relation)
  • Married woman: The woman enticed, taken away, or detained should be a married woman for a case to be covered under this section
  • Punishment: The person punished under this section can face imprisonment for a term of up to 2 years, a fine, or both

CASE LAWS

Bhagwan Dutt v. Kamla Devi & Anr,

  • In this case, Bhagwan Dutt (husband) filed a case under section 498 arguing that Kamla Devi was taken away by another person. He said that she had been lured to live away from him without his consent.
  • The Supreme Court held that section 498 required the essential intent of illicit intercourse with her. The court also held that leaving her husband and resting somewhere else does not count as a case under Section 498. The court ruled in the favor of the respondent.
  • The case laid down the importance of intention in a case under section 498. leaving the husband's house or being taken away by someone without ill intention is not an offense under this section.

Sardar Prithipa V Sarwan singh

  • In this case, the appellant was accused of taking away a married woman from her husband’s custody. The issues revolved around whether the offender had detained the woman with the intention of illicit intercourse.
  • The court held that the intent to have illicit intercourse is a necessary element for a case under this section. It emphasized that all elements need to be fulfilled to charge an individual under this section.
  • The court underlined the requirement of mens rea (criminal intent) in such cases. They also stated that this section was to protect women against unlawful intention of being enticed away.

Mohd. Khaja Abdul Hafeez v. State of Andhra Pradesh

  • In this case, the appellant was accused of enticing (luring) a married woman by the lower courts. He had further appealed to the Supreme Court.
  • The Supreme Court discharged him of the crime because the prosecution had failed to prove if the accused had enticed the woman with the intention of illicit intercourse.
  • The court stated that if the woman had been taken away or enticed without any clear intent of unlawful intercourse, it did not fulfill the criteria for a case under this section.

Section 498 has been subjected to much judicial criticism as well as debate. The court has repeatedly interpreted the section, such as:

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1. Interpretation of enticing and taking away

While section 498 criminalized the act of detaining and taking away a married woman the courts have repeatedly specified that these acts should be accompanied with criminal intent to be considered as a case under this section.

2. Burden of Proving criminal intent

The courts have specified that there is a burden on the prosecution to prove the intent of illicit intercourse behind the act.

3. Protection of Marital Sanctity

Section 498 was introduced to prove the purity of marriage. However, the courts have sometimes limited this because the courts have specified the requirement for concrete proof of criminal intent.

4. Understanding Illicit intercourse

Courts interpret illicit intercourse narrowly through judgments as physical relations outside marriage

5. Narrow Application

Section 498 has been interpreted by courts as being limited in terms of applicability. The court has argued that this section is pretty restricted in proving the act. The burden is upon the prosecution to prove the act.

RELATION TO WOMEN’S RIGHTS

  • The section has been quite controversial in its relation to women's rights and interpretation.
  • The section did not recognize women’s autonomy or freedom of choice and failed to treat them as citizens with equal rights.
  • It treats women as the property of husbands and sees women as subordinate to them.
  • Women's rights have depended on the husband's consent.

PERSPECTIVES OF IPC SECTION 497 AND 498

GENDER

SECTION 497 -

  • This section had a gender bias towards both genders in specific issues.
  • This section automatically puts men on a bigger footing compared to women.
  • This section allowed only men to take up a legal position in cases related to adultery committed by the wife. The same was not allowed for women. Women did not have any legal rights.
  • This section punished only the men for the acts of adultery and did not hold the women liable for the same.

SECTION 498 -

  • This section reflects the patriarchal mindset of viewing women as the property of men.
  • The law aims to protect the institution of marriage and in the course of it treats women as objects.
  • The third party individual is criminalized for enticing and taking away women but here they fail to recognize women’s rights and autonomy. They assume that women are not capable of making independent choices in these matters.
  • The section fails to recognize women's rights and autonomy.

MORALITY AND LAW

SECTION 497-

Since the section is rooted in the Victorian era, this law seems to be a moral policing disguised as law.

The lawmakers wanted to regulate morality by criminalizing extramarital affairs.

SECTION 498-

The section was originally enacted to protect the sanctity of marriage by preventing external interference. This law is however based on patriarchal notions. It sees women as subordinates to men wherein the husband has the right to make decisions for the women.

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JUDICIAL INTERPRETATION

SECTION 497-

The judiciary in India has decriminalized adultery and struck down the section on the grounds of individual autonomy, personal liberty, and privacy of women. These laws were also debated on being regressive towards women.

Adultery has been decriminalized and struck down by the court but is still a ground for divorce.

SECTION 498-

Courts through their legal judgments have held that mens rea(criminal intent) is a necessary essential to convict under this section. This section is now less used due to a better understanding of women's rights and marriage.

2. SOCIAL PERSPECTIVES-

GENDER

  • Both sections 497 and 498 reflected a deeply patriarchal society, wherein the men (husband or guardian) had the power to make decisions on behalf of the women. Women did not have the autonomy to practice their rights
  • The social perspective of both these sections shows that it was believed that women needed to be protected and controlled by men and were considered to be the keepers of family honor. Women’s decisions and personal rights were looked at by the men.
  • The social impact of both these sections which were enacted during the colonial era was to reinforce the patriarchal norms, women’s rights and opinions were ignored. It was believed that women had no freedom of their own and they were mere possessions of men. This gave birth to various gender stereotypes including the idea that women are secondary and need to be constantly protected,

EVOLUTION OF SOCIAL MORALITY

Indian society has evolved in the way morality is perceived now.

  • There is a decline in patriarchal marriage
  • Marriage is now seen as a partnership of equal individuals.
  • There is individual freedom and human dignity for both genders.
  • There is a separation between morality and law, even the courts state that private matters do not need interference from courts and these issues can be resolved through civil remedies.
  • There is a rise in women’s empowerment and autonomy, feminists have criticized sections 497 and 498 for having patriarchal control and denying women equal freedom.
  • There Has been a recognition of personal liberty and individual choice. There is a shift towards gender-neutral laws.

CONCLUSION

The decriminalization of adultery under section 497 and the judicial interpretation of section 498 showcases the shift in perspective towards gender equality, personal rights, and freedom.

The judgment of Joseph Shine vs Union of India decriminalized Sec 497 and declared it unconstitutional. The judgment highlighted the idea that adultery is a private matter and should not be treated as a crime.

This promotes the principles of gender equality and dignity. The court emphasized how marriage is made of two equal individuals and that women are not the property of men.

Section 498 aimed to protect the purity of marriage, it reflects the patriarchal notions earlier widespread.

The section has come under light many times and evolved through judgments. It emphasizes personal liberty and mutual respect.

Both the sections and their current standing highlight the changing views of society and the legal reforms adopted to protect individual rights, gender equality, and autonomy.

The changing laws bring about gender-neutral laws in the legal system and reduce patriarchal control.

It aligns with the constitutional values of freedom and gender equality.

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FREQUENTLY ASKED QUESTIONS (FAQs)

1. What is the current status of IPC Section 497? Is section 497 still functional?

No, it has been declared unconstitutional by the government though adultery is still considered as a ground for divorce.

2. Is adultery a crime?

No, adultery is not no longer a criminal act. The law has been made unconstitutional. Adultery can now be trialed in civil courts.

3. What is the name of the landmark judgment which decriminalized adultery?

The case that decriminalized adultery is Joseph Shine vs Union of India (2018).

4. What is the nature and type of offense committed under this section?

The offenses committed under Section 498 are non-cognizable (a warrant is required to arrest and investigate the accused), bailable (bail can be provided in exchange for security,) and compoundable ( a genuine compromise can be made outside the court).

5. Do women hold any significance and applicability in section 498?

No, women’s consent is not of importance in this section. Men have the power to make decisions on behalf of women. Also, women are seen as the property of men under this section.

REFERENCES

  1. Indian Penal Code, Section 497
  2. Indian Penal Code, Section 498
  3. Joseph Shine v. Union of India
  4. Indian Penal Code
  5. Yusuf Abdul Aziz v. State of Bombay (1954)
  6. Sowmithri Vishnu v. Union of India (1985)
  7. V Revathi v. Union of India (1988)
  8. Sardar Prithipa V Sarwan singh
  9. Mohd. Khaja Abdul Hafeez v. State of Andhra Pradesh
  10. Bhagwan Dutt v. Kamla Devi & Anr
  11. Article 15 (3) of Indian Constitution
  12. Article 14 of Indian Constitution
  13. Article 21 of Indian Constitution
Shubhangi Singh's profile

Written by Shubhangi Singh

Shubhangi is law student at Chanakya National Law University and an intern at Vaquill.

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