The Indian Penal Code was framed by the Britishers in 1860 which was

the time when women in India were considered the property of the men,
and the offence on adultery given under s 497 is a clear reflection of
this. Adultery is basically an act of having sexual relations outside
marriage.[1] This article aims to critically analyze the gender biasness in
the definition of adultery given under s 497 keeping in view the
changing circumstances and the now legalized homosexuality. The
author finally proposes an unbiased definition of adultery which could be
introduced under s 497

The Law of Adultery in India:

S 497 of the Indian Penal Code, 1860 states that:
“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.”

The Judicial Pronouncements on Validity of the Law:

The constitutional validity of the law of adultery in India has been
challenged a number of times but the court has upheld its validity and
also the ‘classification’ made under it.

In the case of Yusuf Aziz v. State,

[2] the Court ruled that the immunity granted to women from being
prosecuted under section 497 was not discriminatory but valid under
Article 15 (3) of the Constitution. It does not offend articles 14 and 15 of
the Constitution of India.

In case of V. Revathi v. Union of India and Ors,

[3] the court held that that Section 497 of the Indian Penal Code is so
designed that a husband cannot prosecute the wife for defiling the
sanctity of the matrimonial tie by committing adultery. Thus the law
permits neither the husband of the offending wife to prosecute his wife
nor does the law permit the wife to prosecute the offending husband for
being disloyal to her. Thus both the husband and the wife are disabled
from striking each other with the weapon of criminal law.

In case of Sowmithri Vishnu v. Union of India and Anr

,[4] the court held that the contemplation of the law, evidently, is that
the wife, who is involved in an illicit relationship with another man, is a
victim and not the author of the crime.

Analysis of the definition:

Now on analyzing the definition from beginning to end, we find the very
second line of this section mentions the phrase ‘wife of another man.’
And here appears the very first point of gender discrimination. This
phrase gives an idea that a married man having sexual relations with an
unmarried woman will not be guilty of committing adultery.

The offence of adultery has been kept under the chapter titled ‘offence
relating to marriage’ because this offence hits at the very root of the
institution of marriage destroying the sanctity of a marital relation. And
to preserve the sanctity of the marriage is not the duty of just one
spouse rather both husband and wife.

But the language of this section gives a feeling that if the husband of
the lady, with whom the person convicted of adultery had sexual
intercourse, had given his wife his consent to have relation outside
marriage then her wife’s relation with a third man will not destroy the
sanctity of their marital relationships which is not true. Also, this
discriminates between husband and wife as partners to a marriage since
it does not include ‘husband of another woman’ exonerating the female
partner in the extra-marital relation of the charge of adultery.

The next phrase mentions ‘without the consent or connivance of that

man’ which clearly indicates that adultery is not an offence per se but is
an offence only when the husband of the adulterer did not consent to it
and also that the consent of the wife of person convicted of adultery is
not considered in deciding whether her husband has committed adultery
or not. This once again discriminates between the two sexes by not
considering the consent of the wife of the person convicted of adultery
in deciding whether her husband who had had sexual relations outside
marriage is guilty of the offence of adultery or not.

The argument generally given in favor of this definition is that the

inheritance of children of marriage is altered when wife beget children
from a man other than her husband. Firstly if that is the case then even
if husband consents, the inheritance will be altered and secondly if it
actually about begetting children, a wife can also consent to extra
marital relation of her husband to allow the other women to beget a
child for her and her husband. And so, even the consent of this woman
should be taken into consideration.

Also as far as the opinion of the court that ‘the law permits neither the
husband of the offending wife to prosecute his wife nor does the law
permit the wife to prosecute the offending husband for being disloyal to
her’[5] is concerned then why the consent of the husband and not of the
wife is given importance in deciding the offence.

Now today when even the courts have discussed matters like live in
relationships and have secured the rights of the female partner in a live
in relationship to property of her male partner and also discussed the
matter of homosexuality and have decriminalized consensual non-
vaginal sexual acts between adults[6] the Legislature should come up
with a definition which even punishes a man who has had sexual
relation with a married man because the current definition fails to do so.

The last line of this section mentions ‘in such case the wife shall not be
punishable as an abettor’. In support of this the Supreme Court held that
woman is neither the seducer nor the author of the crime but the victim.
[7]. But this view does not hold correct in the present time.

But at the same time the allegation, put forth by many critics, that this
act only holds the male partner to sexual intercourse guilty of adultery
is not true as even where a female is having sexual relation with ‘wife of
another man’, even she will be guilty. And so it cannot be said that this
definition discriminates between men and women in holding them guilty
of adultery.

Proposed amended definition:

When the Legislature comes up with an amended version of s 497 it
should necessarily take all the above mentioned points into
considerations. The author, after keeping in mind all the above lacunas
of the law, has come up with a modified definition of adultery which is
as follows:

“Whoever voluntarily has sexual intercourse with a person, who is and

whom he knows or has reason to believe to be the spouse of another
person, 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.

Explanation: the word ‘spouse’ here would mean a husband or wife.”

Conclusion:
The need to amend the law on adultery in India has not been felt in a
few years rather jurists and lawyers have been pressing the need for
amendment since decades. The courts have held that they cannot strike
down a section on the ground that it is desirable to delete it.[8] But the
paper proposes an amendment to and not a deletion of the section.
Therefore the Legislature should, with immediate affect, bring an
amendment into the law of adultery and remove the gender biasness of
this law.
[1]M. Alavi v. T.V. Safia, AIR1993Ker21.
[2] AIR1951Bom470
[3] AIR1988SC835
[4] AIR1985SC1618
[5] V. Revathi v. Union of India (UOI) and Ors., AIR1988SC835.
[6] Naz Foundation v. Government of NCT of Delhi and Others,
2010CriLJ94
[7] Sowmithri Vishnu v. Union of India (UOI) and Anr.,
AIR1985SC1618.
[8] Sowmithri Vishnu v. Union of India (UOI) and Anr.,
AIR1985SC1618.

Under Article14 of Indian constitution men and women are equal

but simultaneously Article15 (3) empowers the state to make
provisions in favour of women owing to her vulnerability. Women
are more prone to crime owing to biological facts. To remove
these disabilities and to countenance her modesty legislature
enacted many enactments and courts bridge the gap, if any
provided by legislation.
In Christian Community Welfare Council of India v. State of
Maharastra (1995 Cr LJ 4223 Bom.) Bombay High Court, to uphold
the dignity of women, held that no female persons shall be
detained or arrested without the presence of lady constable and in
no case, after sunset and before sunrise.
But apex court in appeal (State of Maharastra v. Christian
Community Welfare Council of India AIR 2004 SC 7), whilst
agreeing with the object behind the direction issued by high court,
opined that strict compliance of the said direction, in the given
circumstance, would cause practical difficulties to the
investigating agency and might give room for evading the process
of law by unscrupulous accused. Apex court further observed that
while it is necessary to protect the female sought to be arrested
by the police from police misdeeds. But apex court said that it
may not be always possible and practical to have the presence of
a lady constable when the necessity for such arrest arises.
Therefore apex court decided to modify the direction issued by
Bombay High Court without disturbing the object behind the same
and held that arresting authority, while arresting female person,
all efforts should be made to keep a lady constable present but in
circumstances where the arresting officers is reasonably satisfied
that presence of a lady constable is not available or possible and /
or the delay in arresting caused by securing the presence of a lady
constable would impede the course of investigation such arresting
officer for reasons to be recorded either before the arrest or
immediately after the arrest be permitted to arrest a female
person for lawful reasons at any time of the day or night
depending on the circumstances of the case even without the
presence of a lady constable.
But court of Criminal Procedure (Amendment) Act, 2005 seems to
be midway between absolute immunity invented by Bombay High
Court and practical approach adopted by Supreme Court, as newly
inserted (by amendment of 2005) sub-section 4 in section 46 of
Code of Criminal Procedure 1973 tells that in exceptional
circumstances woman can be arrested after sunset but by woman
officer with prior permission of judicial magistrate. Newly inserted
(by amendment of 2005) Sub-section 4 in Section 46:
(4) Save in exceptional circumstances, no women shall be arrested
after sunset and before sunrise, and where such exceptional
circumstances exit, the woman police officer shall, by making a
written report, obtain the prior permission of the judicial
magistrate of the first class within whose local jurisdiction the
offence is committed or the arrest is to be made.
Amendment in section 46 unequivocally ratify the view of apex
court that in exceptional circumstances woman can be arrested
after sunset and before sunrise but newly inserted provision over-
rides the judgment by making it mandatory that arrest after
sunset and before sunrise can be made only by women officer with
prior permission of judicial magistrate
of first class. But newly inserted provision does not make stance
clear about arrest of female at day time: can she be arrested by
male officer at day time.
When enactment is mute about this proposition then apex court
ruling that in exceptional circumstances women can be arrested
by a male officer will prevail. So, at day time, in exceptional
circumstances, women can be arrested by a male officer.
Recently,
Bina Ramani challenged her arrest in violation of newly inserted
(by amendment of 2005) provision, sub-section 4 in section 46 of
code of criminal procedure, before Additional Metropolitan
Magistrate Ms. Kamini Lau but Ms. Lau got rid of matter by saying
that she could not say anything about it, as there were
ambiguities in the law, which only the higher court had the power
to decide. What are ambiguities to be decided
Bina Ramani case make it mandatory for us to contemplate about
repercussions of violation of procedure enumerated in newly
inserted (by amendment of 2005) provision, sub-section 4 in
section 46 of Code Of Criminal Procedure 1973, and court
directives. Apex court in Mobarik Ali Ahmed V. State Of Bombay
(AIR 1957 SC 857) held that a trial will not be void simply because
the provisions relating to arrest have not been fully complied with.
Apex court further observed that if the court
has jurisdiction to try an offence, any illegality or irregularity in
arrest will not oust the jurisdiction of the court to try the offence.

In Subramania Chetty Re (Air 1941 Mad. 181) court opined that

the question whether the police officer making the arrest was
acting within or beyond his powers in effecting the arrest, does not
effect the question whether the accused person was guilty or not
guilty of the offence with which he is charged.
A moot point is what would be the implications of enactment of
sub-section 4 of section 46? Article 21 of Indian constitution says:
21. Protection of life and personal liberty.- No person shall be
deprived of his life and personal liberty except according to
procedure established by law.
It means arrest made in breach of law can be challenged under
Article 21 but it appears from above- mentioned decided
authorities that the accused can not be released on this ground
nor it can be treated as ground for bail. But compensation may be
claimed for violation of sub-section 4 of section 46. Question may
be raised whether article 21 can be invoked, if woman is arrested
by male officer without any mala fide intention on his part and
without any filthy activity.
Question also arises if woman is arrested by female officer after
sunset and before sunrise in breach of sub-section 4 of section 46
then what would be the repercussion. Still can she claim
compensation? In pursuant of above-mentioned propositions it
seems that newly inserted sub-section 4 is directory in nature
owing to absence of repercussions of breach of provisions.
Now days when there is upsurge in crime by women, indulgence of
women in drug trafficking, non availability of lady police officers,
implementation of such kind of provision is not practical but at the
same time we can not expose the women, most vulnerable group
of society, to danger of masculine misdeeds.
Extra-marital Relations and its Impact on children
Marriage is the unique bond between two people that links them
together emotionally, spiritually and sexually in an enduring union
based on common values, love and commitment. The
circumstances that contribute to the fracturing of the intimate
bond, i.e., an extra-marital relation, are diverse but most often
involve transferring of emotional energy that was once directed to
the marital harmony and for the family and children to other
sources such as career and outside interests and friends. Under
these conditions people may re-connect emotionally and
spiritually with someone outside of their relationship by fulfilling
ones need for acceptance and understanding. Extra marital
relationships such as these begin benignly but may later evolve by
becoming sexual posing a serious threat to the primary marital
relationship.
1. Impact Of Extra-Marital Relation On The Legal Marriage
Adultery is a ground for divorce under Section 13(1)(i) of Hindu
Marriage Act, section 27(1)(a) of Special Marriage Act, Section 32
(d) of Parsi Marriage and Divorce Act,1936 and under Section 10 of
the Indian Divorce Act .The ground for getting a decree for divorce
on the grounds of adultery is provided as :“The Respondent has
after solemnization of marriage, had voluntary sexual intercourse
with any person other than his or her spouse.” In other words, the
spouse who engages in extra-marital intercourse is guilty of
adultery. Under the Dissolution of Muslim Marriages Act, adultery
as such is not a ground for divorce, but if the husband “associates
with women of evil repute or leads an infamous life,” it amounts to
cruelty to wife and she can sue for divorce on that ground. This
seems sometimes akin to living in adultery. But none of these
enactments, except the Parsi Marriage and Divorce Act, confers
any such corresponding right on the husband to dissolution of
marriage for extra-marital sexual relations maintained by the wife.
In Shivakumar v Premavathi it was held that stamping the child as
an outcome an adulterous relation or charging a woman for
extramarital intercourse is a serious thing with legal
consequences. No woman can be blamed for an adulterous
relation relationship and no child can be called as illegitimate
unless there is conclusive evidence in support of such conclusions.
The case of Sunil Eknath Trambake v Leelavati Sunil Trambake
clarified that in the matter of proving the paternity of a child, a
DNA test can be ordered only in exceptional and deserving cases if
it is in the interest of the child. The charge of adultery is serious as
it casts aspersions on the character of the spouse affecting his/her
reputation in the society besides raising question marks in terms
of the parentage of the child delivered by the wife, therefore not
only the charges of adultery should be specific but also should be
established in all probabilities. The proceedings for adultery, under
the Hindu Marriage Act, are in the nature of quasi-criminal, as
such, higher standard of proof than mere preponderance of
probabilities is required as was held in Partap v Veena
2. Importance Of Parental Fidelity And Family Structure.
Obviously, the most important post-divorce problem with which
the individual and society are most vitally concerned is the
problem of finding adequate solutions to matters concerning
custody, education, maintenance of, and access to children. These
are the matters which affect significantly the children and parents
emotionally and socially .The Supreme Court gave a judicial
message in the case of Gaurav Jain v Union of India that children
are innocent and abandoning of the child by one of the parents,
excluding a good foundation of life for them, is a crime against
humanity. In Ninia Baehr v Lawrence H.Mike the Supreme Court of
Hawaii stated that: The father and the mother offer different and
complementary cognitive and emotional organizations of the world
to the infant. An intact family environment consisting of a child
and his or her mother and father presents a less burdened
environment for the development of a happy, healthy and well
adjusted child .The benefit to children which come from being
raised by their mother and father are maximum in an intact and
relatively stress free home.”
The importance of parental fidelity to the psychological well-being
of children cannot be underestimated. While an affair is taking
place children sense that the parent is expending emotional
energy outside the family. As a result the children may become
anxious or frightened, or they may sense rejection and feel they
have done something wrong. Moreover experts found, such
children are prone to have affairs themselves when they marry.
The child, eventually, after witnessing the hostile environment at
home and the parental animosity resulting from the extra-marital
of either of the parents, breaks down under the strain of conflict.
The child’s distress may take the form of school related problems,
anxiety, depression, bullying, victimization and sometimes even
health related illness.
3. Divorce: Psychological Impact On The Children.
Actually, children's psychological reactions to their parents'
divorce vary in degree dependent on three factors:
(1) the quality of their relationship with each of their parents
before the separation,
(2) the intensity and duration of the parental conflict, and
(3) the parents' ability to focus on the needs of children in their
divorce. "Divorce is deceptive. Legally it is a single event, but
psychologically it is a chain sometimes a never-ending chain¬ of
events, relocations, and radically shifting relationships strung
through time, a process that forever changes the lives of the
people involved."
Attachment theory of divorce: Children usually lose a degree of
contact with one of their very few attachment figures when a
divorce occurs. It is a confusing and stressful time for children,
regardless of whether the divorce was amicable or not. Poor
school performance, low self-esteem, behavior problems, distress
and adjustment difficulties are associated with divorce. In
adolescents from divorced families they noted more instances of
delinquent behavior, early sex activity and continued academic
issues. There are many factors that may play into how children's
attachments are altered after a divorce, gender and age being the
two most documented variables. It is also important to discuss the
outcome of divorce and how it affects children's attachment style.
Often times, divorces end in ugly custody battles between the
parents. During this time, the parents being terribly selfish as to
who is most responsible often forget they are being observed at all
times. Attachment style can be even more afflicted by court
battles in which the child has no control over whom he or she goes
with. This serves to alter attachment style negatively. This could
lead to negative attachment style resulting in no attachment style
at all.
4. Impact Of Extra-Marital Relation On Children Born Outside The
Wedlock.
Despite international and national conventions prohibiting
discrimination against any child and imposing responsibilities on
parents, society and state to protect it in every manner, an
illegitimate child born out of an extra-marital relation is still
exposed to enormous social, emotional and legal deprivation
.While the parents can foresee the consequences of their socially
and legally disapproved alliance in the form of extra-marital
relation, the child has no choice in the matter. . The sharing of the
physical company and properties between children born outside
wedlock would be at the expense of the family, and thus the peace
and stability of the marriage would be threatened. Justice Douglas
in 1968 stated that “ illegitimate children are not “non-persons”.
They are humans and have their being.”
4.1 presumption of legitimacy
Under the law there is a presumption in favor of evidence proving
legitimacy of a child born during the wedlock. The rule laid down in
Russel v Russel was followed in the case of Premchand Hira v Bai
Gopal ,was that no evidence can be adduced by spouses that no
intercourse had taken place between them if the effect of such
evidence would be do bastardize the child. The force of this
presumption in English law is indicated by the remark “…we may
almost say that every child born to a married woman is in law the
legitimate child of her husband.”
In India this presumption is statutorily recognized under Section
112 of the Evidence Act 1872 which lays down as a general rule of
presumption that a child born during the subsistence of a legal
marriage or within 280 days after its dissolution is a legitimate
child unless non-access between the parties at the relevant time
can be shown. In a recent judgment of the Supreme Court in the
case of Goutum Kundu v State of West Bengal where in an
application was filed by the wife for maintenance for herself and
her child, the husband denied that he was the father and made an
application to the court for blood group test of the child to
determine the child’s Paternity. The same was not granted. It was
held that under Section 112 of the Evidence Act, the birth of a
child during the continuance of the valid marriage is conclusive
proof of the child’s legitimacy. The blood-grouping test was an
attempt made to prove that the child born to the wife couldn’t be
the husband’s and as a conclusion of this the wife had committed
adultery. Thus, if the husband has ‘A’ blood group and the wife has
‘B’ blood group then the child will have either ‘A’ or ‘B’ or ‘AB’
blood group and if the child has ‘C’ blood group then this would
prove adultery on grounds of this circumstantial evidence. . Also,
in W v. W, a decree of divorce was passed in favor of the husband
as the white wife had given birth to a child with Negroid feature
but the Court did not allow for the blood test as they were of the
opinion that it would bastardize the child.
4.2 Legitimation under Muslim law
Muslim law does not recognize putative father for any purpose. It
clings to the concept of “filius nullis”. Under the islamic law
conception during lawful wedlock determines legitimacy of the
child .There is no process recognised under the muslim law which
confers legitimacy on an illegitimate child. However
mohammadans have adopted measures like “acknowledgement of
paternity” which are preventive measures to save the children
from being bastardised. Mohammadan Law has made a special
provision for conferring legitimacy on or rather recognizing the
legitimacy of a child, whether a son or daughter by the doctrine of
acknowledgement of ikrar . It is an acknowledgement of paternity
by his putative father. The person acknowledged must not be the
off-spring of zina , which is adultery in Muslim law, as he would be
if his mother could not possibly have been the lawful wife of the
acknowledger at any time when he could have been begotten, as
where the mother was at that time the wife of another man
.Adoption or any equivalent of the same is not recognized under
Mohammedan law.
5. Status Of The Illegitimate Child Born Out Of The Extra-
Marital Relation
Lord Ch .J. King in Marchioness of Annadale v Harris :-“If a man
says he, does mislead an innocent woman, it is both reason and
justice that he should make her reparation. The case is stronger in
respect of an innocent child, when the father has occasioned to be
brought into the world in this shameful manner, and for whom, in
justice he ought to provide. ”The Supreme Court in Gaurav Jain v
Union of India has categorically stated that the children have the
rights of equality and opportunity, dignity and care, protection and
rehabilitation by the society with both hands open to bring them
into the mainstream of social life without pre-stigma affixed on
them for no fault of his/her.
5.1 Guardianship :
The Hindu Minority and Guardianship Act ,1956 under Section 6(a)
provides that while in the case of a minor boy or a minor
unmarried girl it is the father who is the natural guardian and the
mother comes only after the father, however under Section 6 (b)
the order reverses incase of illegitimate children; the mother is the
natural guardian and the father comes only after her. An
illegitimate child does not get the father’s name. Perhaps there is
a rational distinction between a child born into a family and one
born outside and since such child would normally not be living with
the father but with the mother, it might sound logical that the
child should be identifiable with the mother; and laws on
guardianship and adoption fall in line with this reasoning .However
from the child’s perspective discrimination and bias is evident as
in a patriarchal set up like ours, child can be singled out as having
been born out of a wedlock.
5.2 Maintenance
5.2.1 Secular law: Under the provisions of the Code of Criminal
Procedure ,1973 which is applicable to all communities
irrespective of caste and religion, every child who is unable to
maintain itself is entitled to be maintained. Though the word
“illegitimate” is specifically mentioned there is no discrimination in
the entitlement on the basis of marital status of the parents of the
child. The main provision regarding grant of maintenance is
contained in Section 125 of the Code. A Magistrate of the first
class may, upon proof of such neglect or refusal, order, such
person to make a monthly allowance for the maintenance of his
wife or such child, father or mother, at such monthly rate, as such
Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct." Apart from this uniform
and secular legislation, there are provisions for maintenance of
children under the personal law statutes as well.
5.2.2 Hindu law: Under the Section 20 of the Hindu Adoptions
and Maintenance Act ,1956, minor children-whether legitimate or
illegitimate, are entitled to be maintained by their father or
mother. In K.M Adam v. Gopala Krishnan the Court imposed an
obligation on the Muslim father to maintain and support his
illegitimate Hindu child born to a Hindu woman. There was no
marriage and it was argued on behalf of the father that neither
under personal law nor under the provisions of the Hindu adoption
and maintenance Act he was entitled to maintain the child,
however the child was considered to be a Hindu as one of the
parent ,i.e. The mother is a Hindu. Illegitimate sons and daughters
are “dependants” under Section 21 of the Act and are entitled to
get maintenance from the estate of their putative father under
Section 22 – in case of a son till he is a minor and incase of a
daughter ,till she remains unmarried.
5.2.3 Muslim law: Application of maintenance to an illegitimate
child is strictly prohibited because of the concept of “nullis filuis”.
In Pavitri v Katheesumma a question arose on the maintenance of
an illegitimate daughter , born of a mohammedan male and a
hindu woman, against his putative father and his assets. The court
held that the mohammedan law imposes no burden of
maintenance of an illegitimate child on the putative father. An
illegitimate child is not entitled to be maintained by either parents
under the shia law and only from mother under the hanafi law. No
maintenance was claimed under Section 125 of the Criminal
Procedure Code. However in Nafees Ara v Asif Sadat Ali Khan the
petition was filed under Section 488 of the Criminal Procedure
Code of 1898 claiming right of maintenance for an illegitimate
child. In this case the court after referring to cases held that the
muslim law does not make any specific provision provide for
granting or prohibiting the grant of maintenance to an illegitimate
child against the father, does not mean that the civil or criminal
court have no jurisdiction to grant maintenance. Provisions of the
Criminal Procedure Code are a part of the general law of the land
which in the absence of any contradictory provision under the
mohammedan law is binding on the Muslims as on other citizens
of the country.
5.2.4 Christian law: Even though the codified law of the
Christians of India does not speak of maintenance of illegitimate
children, the secular law governing the country's masses has
made it compulsory for parents of illegitimate children to support
them (if not the successors of the illegitimate children) in the form
of a monthly amount that is to be fixed by the Magistrate. A
Christian child is bound to be maintained as per the secular law of
the land as provided by the Code of Criminal Procedure, 1973. The
main provision regarding grant of maintenance is contained in
Section 125 of the Criminal Procedure Code.
5.3 Adoption
Statutory adoption provisions exist only in the Hindu law under the
Hindu Adoptions and Maintenance act,1956. Prior to this act only
sons could be adopted and illegitimate sons could not be adopted.
The act imposes no such restrictions. Section 2, which is
applicable clause however specifically distinguishes between a
legitimate and an illegitimate child and provides that in case of an
illegitimate child the mother can give the child away in adoption
without the consent of her paramour. In case of a legitimate child
the primary right of giving in adoption is the fathers and the
mother cannot exercise such right during the lifetime of the father
unless he is disqualified as laid down under Section 8(c) of the
abovementioned Act. In the case of the giving of an illegitimate
child by his mother although Hindu law never considered an
illegitimate child as filius nullius , the relationship of such a child
with the father (except for maintenance) was not recognized but
instead the mother of such a child was recognized as seen in
Mayana v Littram .Obviously the mother should have been
recognized to have the power to give the child in adoption but our
courts have rendered conflicting decisions. in Appya Shettya
Talwar v Ramnakka Apya Talwar , the Bombay HC stated that
since the two mandatory conditions i.e. the child given in adoption
by a woman was her husband's child and the husband was
incapable of giving assent, could not be fulfilled in the case of an
illegitimate child, adoption of such a child was not possible and if
made, it was void. Since in the definition of “father”, putative
father is not included, the illegitimate child has no father and thus
even where a putative father is known and acknowledges the
child, he has no role to play in the adoption of such a child. Neither
he himself can give the child in adoption nor can he prevent the
mother from giving away the child in adoption.
6. Conclusion
The child, eventually, after witnessing the hostile environment at
home and the parental animosity resulting from the extra-marital
of either of the parents, breaks down under the strain of conflict.
The child’s distress may take the form of school related problems,
anxiety, depression, bullying, victimization and sometimes even
health related illness. Eventually, the parents must be brought
along to understand that their antagonistic tug of war is the
toxicity hurting their child. Finally the child needs to be brought
into a session with both the parents where they demonstrate their
maturity by co-operating for the child’s mental development and
growth by giving him/her the necessary family environment and
equal love, care and support from both the parents thus to
extinguish any insecurities or mental pressure the child might be
undergoing. Apart from the legal recognition of the difference in
status of a child born within and outside wedlock, it is the societal
rejection and practical problems which add to the hardship of such
children. These can be witnessed in several matters like-birth
registration, name, school admission, marriage and so on. Under
article 7(1) of the 1989 convention on Child Rights states that,
“the child shall be registered immediately after birth and shall
have the right to a name, the right to acquire a nationality and as
far as possible, the right to know and be cared by his or her
parents.”
However in the case of children whose paternity is unknown or
whose parents are not married, difficult situations arise in terms of
emotional security or property rights or social esteem. The
problem has to be tackled on two fronts- firstly by discouraging
illegitimate births and secondly by removing social prejudices and
legal inequalities. The fear of being saddled with the
responsibilities of such children would deter many adults from
indulging in illicit sexual cohabitation. The factual position
however is, that the law absolves the father of his duties towards
his illegitimate offspring as is the case of a child born out of an
extra-marital relation and thus correspondingly deprives the child
of several rights – including the right to his company. The primary
guardian of an illegitimate child is the mother as against the father
in case of a legitimate child. The objection is not to the mother’s
right but to the different legislative provisions under the personal
laws of India discriminating against the child born in or outside the
wedlock. However the sole factor which should be taken into
consideration is the best interest of the child rather than the
status of the legal relationship of the parents.

The Antiquated Shackles Of Adultery

(An Analysis of The Flaws in the Law and A Discussion Of the Pros
And Cons Of Different Recommendations To Reform The Law Of
Adultery)
“To be or not to be – that is the question” --- Shakespeare.
Introduction:
The dying voices analyzing and criticizing every aspect of the law
have risen again. The insistence of the National commission for
women and the report of the Madhav Menon committee have
breathed a new lease of life in the dying controversy. The law
relating to adultery as existing in the Indian penal code under
section 497 has been criticized ever since it’s inception. Its validity
both on the constitutional grounds as well as philosophical
grounds has been challenged time and again. It is a wonder then
that the law stands, unaltered and unperturbed, in the democratic
India.
Although there is little doubt that the law is flawed, yet there
exists some disparity about the proposed remedy. To some the
law itself is welcome, but its content is not. They believe that
adultery should be treated as a crime but the discrepancies should
be amended. To the supporters of Madhav Mennon and the
National Commission for Women the law is obsolete in the context
of the modern society and does not merit being treated as a
crime. On the other hand, the Malimath Committee on Criminal
Justice Reforms recommends that adultery should remain as a
crime but section 497 of the IPC has to be amended to the effect
that it makes women also equally liable. In the light of these
recommendations and observations of the Apex Court in various
cases, it is high time that the law needs to be re-evaluated and we
rid ourselves of the confusion
The Law as it Stands: To understand the source of the dilemma
we need to understand the law and its various points of
contention. The law relating to the crime of adultery is present in
section 497 of the Indian Penal Code.
Simply put the law declares it a crime for a man to have sexual
intercourse with the wife of another man, without the consent of
the husband; the consent may be explicit or implicit. The law also
explicitly declares that the wife in such cases may not be
prosecuted
The Complaints: To start with, the prima facie unequal treatment
meted out to men and women has been questioned frequently.
What seems arbitrary is the fact that the law may be used to
punish the man while allowing the woman, who had equally been
involved in the act, to go absolutely free. It appears discriminatory
that for the same act the man becomes the manifestation of evil
but the woman still is considered to retain her virtues. It is
unexplainable that for the same wrongful act the man is presumed
by the law to have a mens rea while no such presumption is
attributed in reference to the woman. The guiding principle of the
law is that all persons and things similarly circumstanced should
be treated alike in both the privileges conferred and liabilities
imposed. Again the evil attempted to be prevented is the an extra
marital relationship, however what the law achieves is only placing
a deterrent on the man while the other party to the affair is not
brought within the legal restrictions. Hence there neither appears
an intelligible differentia nor a nexus with the object to be
achieved . That is why the constitutional validity of the act has
been questioned, challenging the law as being violative of the
fundamental right of equality.
Another similar complaint that has plagued the use of this law is
the fact that under this law only the husband of the wife is entitled
to prosecute. The wife of the adulterous man cannot use section
497 to bring an action against either her unfaithful husband or the
women involved with her husband, while the husband of an
adulterous wife can bring an action against the man involved in
the affair.
Another malady is that in case the man is married and the woman,
with whom he has established adulterous relations, is not in an
active wedlock, then in such a case the law may not be used at all.
What strikes one as absurd is the fact that the law punishes one
and permits another equally unchaste relationship. The wrong that
is supposed to be punished is that one should not have relations
with someone in an active wedlock. Breaking a matrimonial home
is something that should be looked at sternly. Not only does such
an act take two people apart but also has everlasting impact on
the psyche of the innocent children, if any. Again, the trauma and
emotional damage suffered by the wife of an adulterous male is
equal to that of the husband of an adulterous woman, yet while
the husband has been given the right to bring action upon the
man breaking the purity of his home, the wife is denied such a
right. Thus the law, in the present state, is defective, either it
should not declare the breaking of a matrimonial alliance a crime
at all or it must punish all equivalent relationships a crime too.
Also neither the aggrieved husband nor wife may initiate
proceedings against their irresponsible spouses.

Justifications from the Framers: The framers of the law tried to

justify this aberration by relying on the social conditions of India .
The framers of the code took the example of countries such as
England and France and use them as a yardstick to judge the
condition in India. They emphasized that the condition was very
different, in India, women were subjugated and exposed to evils
such as domestic violence, sati, child marriage and polygamy, to
say the least. As an outcome of the social practices and their own
position in the society, women in India live in an extreme state of
mental stress and neglect. In such a condition it is probable that
they stray out of their marital homes in search of love and
affection that eludes them at home. Thus pinning criminal charges
on them, knowing their station would be, as described by the
framers, cruel and heartless. The framers of the code believed
that if the women did the deplorable act it was pressured by their
social and private conditions in life. Hence they were actually not
at fault and taking into account their already depleted station in
life they should not have been held liable at least in the eyes of
the law.
Unjustified Justifications: There is no denying the fact that the
framers of the law managed to describe the plight of Indian
women precisely and accurately. However their emotions should
have found vent in an effort to uplift the condition of women not
while drafting the law of the land. A crime is crime, to declare one
guilty and the other innocent in the same act is leniency and
foolhardiness. Other attempts should be made to help women
come out from such a pitiable state, but providing a loophole or
proving a vent for them to misuse unhindered, should not be a
solution. What this laxity means is that women know that they
may wander out and they shall be unpunished. Though the
intentions of the framers may have been benevolent yet all they
managed to do was to provide a safety valve in case of extreme
conditions and that is all.

Justification from the Supreme Court: The Supreme Court too

has not been silent on the issue. The Supreme Court observed that
adultery is a wrong against the sanctity of the matrimonial home.
Thus charges are pressed against the outsider who breaks the said
sanctity. The woman, in cases of adultery, is considered the victim
of a seducer. It appears that the court believes that the man has
an unstoppable seductive charm and the woman is helpless
against it. The evil that is punished by the law, in the mind of the
court, is that of seduction of a woman by another man. According
to the court the woman is considered to be the victim. Thus the
court held that the law was non discriminatory and not violating
the right to equality , thus the court upheld the constitutional
validity of the section 497. The court also opined that by not
allowing the spouses to prosecute each other the law offers a
chance to the spouse to make-up . It is humbly submitted that the
court erred in its judgment.

Another Faltering Justification: Of the individuals indulging in

an extra marital affair the responsibility of upholding the sanctity
of the matrimonial home lies on the married person than an
outsider. This responsibility is taken, impliedly, at the time of
marriage. Thus it is the philandering wife who bears this
responsibility more than anybody else. It is for her to maintain the
purity of the relationship. While consenting for an illicit
relationship the wife ignores this responsibility and hence she is
equally responsible for breaking the matrimonial alliance. The man
only provides the lure it is for the woman to be attracted or not.
Hence she who shoulders the responsibilities of marriage commits
a graver offence than the man who entices her. Thus she should
be treated as an abettor under section 497 of the I.P.C. There is no
reason for not meting out similar treatment to the wife who has
sexual intercourse with anyone else than the husband. Any
attempts at reconciliation can be made independently of the
proceedings and if the proceedings are successful the charges can
be withdrawn.

The Social Transformation: We must keep in mind that these

reasons and defenses were given decades ago. The most
important factor that has led to the re-ignition of the debate is the
drastic change in the social status of women. Women are no
longer suppressed or subjugated. The practices of sati, child
marriage, polygamy, e.t.c, have been done away with. Today there
are laws against these evils and also laws providing effective relief
against heinous acts such as domestic violence, dowry and others.
Almost all professional college has a quota for women. Thus
women today are in no way inferior to men or suppressed, and are
at par with the opposite sex. The effective implementation of
these laws and other women friendly provisions in the constitution
insures that women, today, have an edge in the society. All this
has resulted in them gaining the power of choice. They can no
longer be classified as victims in cases of adultery.
The re-discovery of the Indian sexuality has just begun.
Permissiveness is at an all-time high, the statistics tell a
completely different tale of the supposedly conservative India.
27% in Bangalore, 28% in Chennai, 22%in Delhi, 32% in Kolkata,
20% in Hyderabad and 24 % of the People in Bombay have no
qualms about extra marital affairs. Several sex surveys carried out
recently point to a definite resurgence of guilt-free extramarital
sex, as much on the initiative of women now as it was on the
bidding of men before.
There can be no further ignorance of the fact that our society has
changed drastically. Section 497 Of the I.P.C had been drafted in a
time and era where conservatism was the norm. It belongs to a
past that laid great stress on morals and where sex in itself was a
taboo activity. In that era an illicit relationship could not have
imagined about and hence it was befitting that adultery was a
crime. Today the changed views of the society have started raising
questions on the law of adultery.
Proposed Remedies: There is little doubt that the law of
adultery is not in consonance with the society and so it must
change. There exist to different views here. The recommendations
of the 42nd law commission and with the Justice Malimath
committee report can be taken into consideration and equality of
treatment in the law of adultery between men and women can be
introduced. Or the suggestions of the NCW and the Madhav Menon
committee and adultery can be converted into a social wrong than
a crime.
Weighing The Pros And Cons: In the light of the above reasons
it is lucent that there is a need for amendments in the law and it
needs to be reconsidered. In pursuance of this two major
recommendations have been made. Either the discrepancies in the
law should be removed or adultery should be removed from the
status of a crime to that of a social evil.
The Malimath committee and the 42nd Law commission have
suggested that women should also be made liable for the offense
and the law should be made sterner. This would indeed remove
the prima facie arbitrary treatment meted out to men and women.
Enforcing the suggestions would bring about equality of manner
and ultimately the same punishment shall be given for the same
act. However there is a darker side to the implementation of this
recommendation. We risk making the state a moral watchdog.
Morality is a very specific and personal matter. Controlling this
through the iron hand of the state would endanger the freedom of
personal liberty of the individuals in the state. Moreover the state
should not play a role in the private lives of the individuals, those
states, such as the Nazi Germany or the communist Russia, that
have done this in the past have not fared well. It shall also be
prudent to take the social change and the liberated moral
standards into account as the sterner law and the criminal status
may not be apposite to the contemporary India.
Contrary to the above proposal is the recommendation of the
Madhav Menon Committee and that of the National Commission
for Women. They have taken the altered social factors into
account and on that basis mooted for the removal of adultery from
a crime and its conversion into a social wrong. Implementation of
this proposal would be in consonance with the social scenario of
our country today. The recourse to divorce shall still be available
to the aggrieved party as shall be the other recourses in civil law
such as damages for mental trauma. The wife who indulges in
adultery is not entitled to maintenance . Thus the aggrieved
individual can seek redress under other areas of law. Hence
converse to popular believes the deterrent shall still exist.
Nevertheless removal of adultery from the status of a crime would
greatly reduce the deterring effect. Instead of limiting the
degeneration of morals and values from the society making
adultery a social wrong would unconsciously promote the evil of
infidelity.

My Observations: It is indeed apparent that the law as it exists is

neither socially apt nor does it stand to the principles of equality.
Thus the only certainty is that the law must be revised. But before
suggestions of the Madhav Menon Committee and the N.C.W are
to be followed the social change, that they make their basis, must
be evaluated. After due consideration it appears that there has
been a downfall in the morals and virtues of the society. From
absolute conservatism the society has progressed to absolute
liberty. Imposing no restriction on such a change would be absurd.
Thus I believe that the law of adultery should be made sterner and
the prima facie irregularities should be done away with. This shall
impose a justified restriction on the adulterous pair and act as a
deterrent. Not only does adultery destroy the sanctity and
happiness of a matrimonial alliance but it may also have far
reaching consequences on the psyche of the innocent children.
Thus such a heinous activity should be attempted to be prevented
at all costs.
Equivalent citations:
1985 AIR 1618, 1985 SCR Supl. (1) 741
Bench: Chandrachud, Y.V.
PETITIONER:
SMT. SOWMITHRI VISHNU
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT27/05/1985
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION:
1985 AIR 1618 1985 SCR Supl. (1) 741
1985 SCC Supl. 137 1985 SCALE (1)960
CITATOR INFO :
R 1988 SC 835 (4)
ACT:
Indian Penal Code, s. 497-Constitutional validity of.
HEADNOTE:
During the pendency of a divorce petition against the
petitioner/wife on the grounds of desertion and adultery, the
husband also filed a complaint against one Dharma Ebenezer u/s.
497 of the Penal Code charging him with having committed
adultery with the petitioner. Thereafter the petitioner filed this writ
petition for quashing the complaint on the grounds (1) that s. 497
of the Penal Code is violative of Art. 14 of the Constitution
because, by making an irrational classification between men and
women, it unjustifiably denies to women the right which is given to
men This argument rests on the following three grounds- (i)
Section 497 confers upon the husband the right to prosecute the
adulterer but, it does not confer any right upon the wife to
prosecute the woman with whom her husband has committed
adultery; (ii) Section 497 does not confer any right on the wife to
prosecute the husband who has committed adultery with another
woman; and, (iii) Section 497 does not take in cases where the
husband has sexual relations with an unmarried women, with the
result that husbands have, as it were, a free licence under the law
to have extramarital relationship with unmarried women; and (2)
That the right to life includes the right to reputation and therefore
if the outcome of a trial is likely to affect the reputation of a
person adversely, he or she ought to be entitled appear and to be
heard in that trial and since s. 497 does not contain a provision
that she must be impleaded as a necessary party to the
prosecution or that she would be entitled to be heard, the section
is bad as violating Art. 21 of the Constitution.
Dismissing the writ petition,
^
HELD: 1 (i) The law, as it is, does not offend Art. 14 or 15 of the
Constitution. The offence of adultery by its very definition, can be
committed by a man and not by a woman: The argument of the
petitioner really comes to this that the definition should be recast
by extending the ambit of the offence of adultery so that, both the
man and the woman should be punishable for the offence of
adultery. Where such an argument permissible, several provisions
of the penal law may have to be struck down on the ground that,
either in their definition or in their prescription of punishment,
they do not go far enough. Such arguments go to the policy of the
law, not to its constitutionality, unless while implementing the
policy, any provision of the Constitution is infringed. Therefore, it
cannot be accepted that in defining the offence of
742
adultery so as to restrict the class of offenders to men, any
constitutional provision is infringed. However, 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. [745 E-F; G-H; 746A]
1(ii) Section 497 does not envisage the prosecution of the wife by
the husband for 'adultery'. The offence of adultery as defined in
that section can only be committed by a man, not by a woman.
Indeed, the section provides expressly that the wife shall not be
punishable even as an abettor. No grievance can then be made
that the section does not allow the wife to prosecute the husband
for adultery. The contemplation of the law, evidently, is that the
wife, who is involved in an illicit relationship with another man, is a
victim and not the author of the crime. The offence of adultery, as
defined in s. 497 is considered by the Legislature as an offence
against the sanctity of the matrimonial home, an act which is
committed by a man, as it generally is. Therefore, those men who
defile that sanctity are brought within the net of the law.
[746 D-G]
1 (iii) Law does not confer freedom upon husbands to be licentious
by gallivanting with unmarried women. It only makes a specific
kind of extramarital relationship an offence, the relationship
between a man and a married woman, the man alone being the
offender. An unfaithful husband risks or, perhaps, invites a civil
action by the wife for separation. The legislature is entitled to deal
with the evil where it is felt and seen most: A man seducing the
wife of another. [746H; 747A]
(2) It is correct to say that s.497 does not contain a provision for
hearing the married woman with whom the accused is alleged to
have committed adultery. But, that does not justify the proposition
that she is not entitled to be heard at the trial. There is no doubt
that if the wife makes an application in the trial court that she
should be heard before a finding is recorded on the question of
adultery, the application would receive due consideration from the
court. There is nothing, either in the substantive or the adjectival
criminal law, which bars the court from affording a hearing to a
party, which is likely to be adversely affected directly and
immediately, by the decision of the court. The right of hearing is a
concomitant of the principles of natural justice, though not in all
situations. That right can be read into the law in appropriate
cases. Therefore, the fact that a provision for hearing the wife is
not contained in s.497 cannot render that section unconstitutional
as violating Art. 21. [748 A-D;] Francies Coralie v. Union Territory
AIR 1981 SC 736 & Board of Trustees, Fort of Bombay v. Nadkarni,
AIR 1983 SC 109 referred to.
Yusuf Abdul Aziz v. The State of Bombay [1954] SCR 930
followed.
(3) In the instant case. there was general agreement that since
the petitioner's husband has already obtained divorce against her
on the ground of desertion, no useful purpose will be served by
inquiring into the allegation whether she had adulterous
relationship with Dharma Ebenezer, against
743
whom the husband has lodged a complaint u/s. 497 of the Penal
Code-Accordingly, the Court quashed that complaint and directed
that no further proceedings will be taken therein. [74 C]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 845 of 1980. (Under
Article 32 of the Constitution of India) Mrs. Nalini Chidambaram
and Miss Seita Vaidyalingam for the Petitioner.
B. Datta and R.N. Poddar for the Respondent No. 1. Miss Lily
Thomas for the Respondent No. 2.
The Judgment of the Court was delivered by. CHANDRACHUD, C.J.
By this petition under Article 32 of the Constitution, the petitioner
challenges the validity of section 497 of the Penal Code which
defines the offence of 'adultery' and prescribes punishment for it.
A few facts, interesting but unfortunate, leading to this petition are
these:
The petitioner filed a petition for divorce against her husband on
the ground of desertion. The trial court dismissed that petition,
holding that the petitioner herself had deserted the husband and
not the other way about. Thereafter, the husband filed a petition
for divorce against the petitioner on two grounds: firstly, that she
had deserted him and secondly, that she was living in adultery
with a person called Dharma Ebenezer. The petitioner conceded in
that petition that in view of the finding recorded in the earlier
proceeding that she had deserted her husband, a decree for
divorce may be passed against her on the ground of desertion. So
far so good. But, the petitioner contended further that the Court
should not adjudicate upon the question of adultery since it was
unnecessary to do so. That plea was opposed by the husband. He
contended that he was entitled to obtain a decree of divorce
against the petitioner not only on the ground of desertion but also
on the ground of adultery and that, there was no reason why he
should be denied an opportunity to show that the petitioner was
living in adultery. The husband's contention was accepted by the
trial court but, in a revision application filed by the petitioner, the
High Court accepted her plea and held that since, the finding
recorded in the earlier petition was binding on the parties, a
decree for divorce had to be passed in favour of the
744
husband on the ground of desertion and that, it was unnecessary
to inquire into the question of adultery. We are informed at the Bar
that, pursuant to the High Court's view, a decree for divorce has
already been passed in favour of the husband on the ground that
the petitioner had deserted him.
While his petition for divorce was pending against the petitioner,
the husband filed a complaint against Dharma Ebenezer under
section 497 of the Penal Code charging him with having
committed adultery with the petitioner. This writ petition has been
filed by the petitioner for quashing that complaint on the ground
that the very provision which creates the offence of 'adultery',
namely, section 497 of the Penal Code, is unconstitutional.
Section 497 is one of the six sections is Chapter XX of the Penal
Code, which is entitled 'Of Offences Relating to Marriage'. Section
497 reads thus:
"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." By reason of section 198(1) of the Code
of Criminal Procedure, 1973, no Court can take cognizance of an
offence punishable under Chapter XX of the Penal Code except
upon a complaint made by some person aggrieved by the offence.
Sub- section (2) of section 198 provides that, for the purposes of
sub-section (1), "no person other than the husband of the woman
shall be deemed to be aggrieved by any offence punishable under
section 497 or section 498 of the Penal Code". Section 498
prescribes punishment for enticing or taking away or detaining a
married woman with criminal intent.
Mrs. Nalini Chidambaram, who appears on behalf of the petitioner,
contends that Section 497 of the Penal Code is violative of Article
14 of the Constitution because, by making an irrational
classification between man and women, it unjustifiably denies to
women the right which is given to men. This argument rests on
the
745
following three grounds: (1) Section 497 confers upon the husband
the right to prosecute the adulterer but, it does not confer any
right upon the wife to prosecute the woman with whom her
husband has committed adultery; (2) Section 497 does not confer
any right on the wife to prosecute the husband who has
committed adultery with another woman; and, (3) Section 497
does not take in cases where the husband has sexual relations
with an unmarried woman, with the result that husbands have, as
it were, a free licence under the law to have extra-marital
relationship with unmarried women. The learned counsel
complains that Section 497 is flagrant instance of 'gender
discrimination', 'legislative despotism' and 'male chauvinism'. It is
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.
These contentions have a strong emotive appeal but they have no
valid legal basis to rest upon. Taking the first of these three
grounds, the offence of adultery, by its very definition, can be
committed by a man and not by a woman : "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 ... ... is guilty of
the offence of adultery." The argument really comes to this that
the definition should be recast by extending the ambit of the
offence of adultery so that, both the man and the woman should
be punishable for the offence of adultery. Were such an argument
permissible, several provisions of the penal law my have to be
struck down on the ground that, either in their definition or in their
prescription of punishment, they do not go far enough. For
example, an argument could be advanced as to why the offence of
robbery should be punishable with imprisonment for ten years
under section 392 of the penal Code but the offence of adultery
should be punishable with a sentence of five years only : 'Breaking
a matrimonial home is not less serious a crime than breaking open
a house'. Such arguments go to the policy of the law, not to its
constitutionality, unless, while implementing the policy, any
provision of the Constitution is infringed. We cannot accept that in
defining the offence of adultery so as to restrict the class of
offenders to men, any constitutional provision is infringed. It is
commonly accepted that it is the man who is the seducer and not
the woman. This position my have undergone some change over
the years but it is for the legislature 746
to consider whether Section 497 should be amended appropriately
so as to take note of the 'transformation' which the society has
undergone. The Law Commission of India in its 42nd Report, 1971,
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 suggested modification was not accepted by the
legislature. Mrs. Anna Chandi, who was in the minority, voted for
the deletion of Section 497 on the ground that "it is the right time
to consider the question whether the offence of adultery as
envisaged in Section 497 is in tune with our present day notions of
woman's status in marriage". The repot of the Law Commission
show that there can be two opinions on the desirability of retaining
a provision like the one contained in Section 497 on the statute
book. But, we cannot strike down that section on the ground that it
is desirable to delete it.
In so far as the second of the three grounds is concerned, section
497 does not envisage the prosecution of the wife by the husband
for 'adultery'. The offence of adultery as defined in that section
can only be committed by a man, not by a woman. Indeed, the
section provides expressly that the wife shall not be punishable
even as an abettor. No grievance can then be made that the
section does not allow the wife to prosecute the husband for
adultery. The contemplation of the law, evidently, is that the wife,
who is involved in an illicit relationship with another man, is a
victim and not the author of the crime. The offence of adultery, as
defined in section 497, is considered by the Legislature as an
offence against the sanctity of the matrimonial home, an act which
is committed by a man, as it generally is. Therefore, those men
who defile that sanctity are brought within the net of the law. In a
sense, we revert to the same point : Who can prosecute whom for
which offence depends, firstly, on the definition of the offence and,
secondly, upon the restrictions placed by the law of procedure on
the right to prosecute.
The self-same answer holds good in the case of the third ground
also. Law does not confer freedom upon husbands to be licentious
by gallivanting with unmarried woman. It only makes a specific
kind of extra-marital relationship an offence, the relationship
between a man and a married woman, the man alone being the
offender. An unfaithful husband risks or, perhaps, invites a civil
action by the wife for separation. The legislature is entitled to deal
747
with the evil where it is felt and seen most : A man seducing the
wife of another. Mrs. Chidambaram says that women, both
married and unmarried, have changed their life style over the
years and there are cases where they have wrecked the peace
and happiness of other matrimonial homes. We hope this is not
too right but, an under-inclusive definition is not necessarily
discriminatory. The alleged transformation in feminine attitudes,
for good or bad may justly engage the attention of the law-makers
when the reform of penal law is undertaken. They may enlarge the
definition of adultery to keep pace with the moving times. But,
until then, the law must remain as it is. The law, it is, does not
offend either Article 14 or Article 15 of the Constitution.
Incidentally, the demand of the petitioner that sexual relationship
of a husband with an unmarried women should also be
comprehended with in the definition of 'adultery' is a crusade by a
woman against a woman. If the paramour of a married woman can
be guilty of adultery, why can an unmarried girl who has sexual
relations with a married man not be guilty of adultery ? That is the
grievance of the petitioner.
Mrs Chidambaram has challenged the validity of section 497 on
yet another ground, namely, that it violates Article 21 of the
Constitution. Relying upon the decisions of this Court in Francis
Coralie v. Union Territory and Board of Trustees, Fort of Bombay v.
Nadkarni, counsel argues that the right to life includes the right to
reputation and, therefore, if the outcome of a trial is likely to affect
the reputation of a person adversely, he or she ought to be
entitled to appear and be heard in that trial. A law which does not
confer upon such a person the right of being heard is violative of
Article 21. This argument, for its better appreciation, may be put
in a concrete shape by taking a hypothetical example : The
husband 'A' wants to get rid of his wife 'B'. He colludes with his
friend 'C' and prosecutes him for committing adultery with 'B'. C's
trial for adultery is mere pretence because, he and A are ad idem
that he should be convicted for committing adultery with B. The
argument of the counsel is that the real victim of such a
prosecution is the wife B because, it is her reputation which is
most importantly involved and assailed. Since section 497 does
not contain a provision that she must be impleaded as a necessary
party to the prosecution or that she would be entitled to be heard,
the section is said to be bad.
748
Counsel is right that section 497 does not contain a provision for
hearing the married woman with whom the accused is alleged to
have committed adultery. But, that does not justify the proposition
that she is not entitled to be heard at the trial. We have no doubt
that if the wife makes an application in the trial Court that she
should be heard before a finding is recorded on the question of
adultery, the application would receive due consideration from the
Court. There is nothing, either in the substantive or the adjectival
criminal law, which bars the court from affording a hearing to a
party, which is likely to be adversely affected, directly and
immediately, by the decision of the Court In fact, instances are not
unknown in criminal law where, though the prosecution is in the
charge of the Public Prosecutor, the private complainant is given
permission to oversee the proceedings. One step more, and the
wife could be allowed a hearing before an adverse finding is
recorded that, as alleged by her husband, the accused had
committed adultery with her. The right of hearing is a concomitant
of the principles of natural justice, though not in all situations.
That right can be read into the law in appropriate cases.
Therefore, the fact that a provision for hearing the wife is not
contained in section 497 cannot render that section
unconstitutional as violating Article 21.
Instead of embarking upon this discussion, we could have as well
dismissed the writ petition by relying upon the decision of a
Constitution Bench of this Court in Yusuf Abdul Aziz v. The State of
Bombay, which held that section 497 of the Penal Code does not
offend Articles 14 and 15 of the Constitution. However, the
petitioner's counsel had many more arguments to advance and
since, more than 30 years have gone by since the decision in
Yusuf Abdul Aziz was given, we thought that we might examine
the position afresh, particularly in the light of the alleged social
transformation in the behavioural pattern of women in matters of
sex.
Though it is true that the erring spouses have no remedy against
each other within the confines of section 497 of the Penal Code,
that is to say, they cannot prosecute each other for adultery, each
one has a remedy against the other under the civil law, for divorce
on the ground of adultery. 'Adulter' under the civil law has a wider
connotation than under the Penal Code. If we were to accept the
argument of the petitioner, Section 497 will be obliterated
749
from the statute book and adulterous relations will have a more
free play than now. For then, it will be impossible to convict
anyone of adultery at all. It is better, from the point of view of the
interests of the society, that at least a limited class of adulterous
relationship is punishable by law. Stability of marriages is not an
ideal to be scorned. There was general agreement before us that
since the petitioner's husband has already obtained divorce
against her on the ground of desertion, no useful purpose will be
served by inquiring into the allegation whether she had adulterous
relationship with Dharma Ebenezer, against whom the husband
has lodged a complaint under section 497 of the Penal Code.
Accordingly, we quash that complaint and direct that no further
proceedings will be taken therein. In the result, the writ petition is
dismissed. There will be no order as to costs.
M.L.A. Petition dismissed.
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Yusuf Abdul Aziz vs The State Of Bombay ... on 10 March,
1954
Cites 3 docs
Section 497 in The Indian Penal Code, 1860
The Indian Penal Code, 1860
Article 14 in The Constitution Of India 1949
Citedby 49 docs - [View All]
Dr. M.C. Sharma, Lecturer vs The Punjab University, ... on 16 May,
1996
Ramchandra Mahton And Anr. vs State Of Bihar And Ors. on 12
October, 1965
The State Of Bombay vs Bombay Education Society And ... on 26
May, 1954
Smt. Sowmithri Vishnu vs Union Of India & Anr on 27 May, 1985
Charan Singh And Ors. vs Union Of India And Ors. on 28
November, 1978

Equivalent citations: 1954 AIR 321, 1954 SCR 930

Bench: Bose, Vivian
PETITIONER:
YUSUF ABDUL AZIZ
Vs.
RESPONDENT:
THE STATE OF BOMBAY ANDHUSSEINBHOY LALJEE.
DATE OF JUDGMENT:
10/03/1954
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
HASAN, GHULAM
CITATION:
1954 AIR 321 1954 SCR 930
CITATOR INFO :
RF 1985 SC1618 (10)
ACT:
Constitution of India, arts. 14 and 15-Section 497 of the Indian
Penal Code (Act XLV of 1860)-Whether ultra vires the Constitution.
HEADNOTE:
Held, that s. 497 of the Indian Penal Code does not of lend arts. 14
and 15 of the Constitution.
JUDGMENT:
CRIMINAL APPELLANTE JURLSDICTION: Case No. 349 of 1951.
Appeal under article 132 (1) of the Constitution of India from the
Judgment and Order dated the 26th June, 1951, of the High Court
of Judicature,at Bombay (Chagla C. J. and Gajendragadkar J.) in
Criminal Application No. 345 of 1951. A.A. Peerbhoy, Jindra Lal and
I. N. Shroff for the appellant.
C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with
them) for respondent No. 1. 931
J.B. Dadachanji and Rajinder Narain for respondent No. 2. 1954.
March 10. The Judgment of the Court was delivered by Bose J.-The
question in this case is whether section 497 of the Indian Penal
Code contravenes articles 14 and 15 of the Constitution.
The appellant is being prosecuted for adultery under section 497
of the Indian Penal Code. As soon as the complaint was filed he
applied to the High Court of Bombay to determine the
constitutional question mentioned above under article 228 of the
Constitution. The High Court decided against him but granted him
a certificate under articles 132 (1) and 134 (1) (c).
Under section 497 the offence of adultery can only be committed
by a man but in the absence of any provision to the contrary the
woman would be punishable as an abettor. The last sentence in
section 497 prohibits this. It runs- "In such case the wife shall not
be punishable as an abettor." It is said that this offends articles 14
and 15. The portion of article 15 on which the appellant relies is
this:
"The State shall not discriminate against any citizen on grounds
only of............... sex." But what he overlooks is that is subject to
clause (3) which runs
"Nothing in this article shall prevent the State from making any
special provision for women.......... " The provision complained of is
a special provision and it is made for women, therefore it is saved
by clause (3). It was argued that clause (3) should be confined to
provisions which are beneficial to women and cannot be used to
give them a licence to commit and abet crimes. We are unable to
read any such restriction into the clause ; nor are we able to agree
that a
932
provision which prohibits punishment is tantamount ,to a licence
to commit the offence of which punishment has been prohibited.
Article 14 is general and must be read with the other provisions
which set out the ambit of fundamental rights. Sex is a sound
classification and although there can be no discriminate in general
on that ground, the Constitution itself provides for special
provisions in the case of women and children. The two articles
read together validate the impugned clause in section 497 of the
Indian Penal Code. The appellant is not a citizen of India. It was
argued that he could not invoke articles 14 and 15 for that reason.
The High Court held otherwise. It is not necessary for us to decide
this question in view of our decision on the other issue.
The appeal is dismissed.
Appeal dismissed.
Agent for respondent No.1 : R. H. Dhebar. 933

Bharat Coking Coal Ltd. vs State Of Bihar And Ors. on 11 February,

2003
Cites 1 docs

Bharat Coking Coal Ltd vs State Of Bihar on 13 May, 1994

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Jharkhand High Court

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Equivalent citations: 2003 (2) JCR 61 Jhr

Bench: T Sen

Bharat Coking Coal Ltd. vs State Of Bihar And Ors. on 11/2/2003

JUDGMENT
Tapen Sen, J.
1. Heard Mr. M.M. Banerjea, learned counsel for the petitioner and Mr.
R.S. Majumdar, learned Government Advocate for the respondents.
2. The Writ Petitioner (M/s. Bharat Coking Coal Limited) have prayed
for a declaration that the State and its authorities did not have any
jurisdiction to put on auction the lease hold areas held by it over Mauja
Lohapatti on Plot No. 1, 3290, over an area of 238.09 acres vide Deed
No. 26196 dated 2.11.1974 for a period of 20 years. They have further
made a prayer that in any view of the matter the respondent No. 6
(District Mining Officer) cannot auction the Sand Ghats in view of the
fact that under Rule 70(iv) of the Mineral Concession Rules, 1960, sand
is a major mineral and the same is used for stowing in coal mines.
Petitioners have also prayed that the settlement granted to the
respondent No. 7 be quashed, but during the course of arguments, Mr.
M.M. Banerjea, learned counsel for the petitioner abandons this prayer
saying that this prayer has become in fructuous as three month's period
has already lapsed. Petitioners have further made a prayer that
applications for grant of leases in relation to sand in various Maujas
such as Kunji, Nutandih, Telmocho as also Lohapatti had been filed
under the provisions of Mines and Minerals (Regulation and
Development) Act, 1957 as also under the provisions of the Mineral
Concession Rules, 1960 way back in the year 1981 but till date nothing
has happened and the Government is sitting tight over the matter.
3. Mr. R.S. Majumdar, learned Government advocate submits that
some of the properties are in dispute and therefore, the entire matter
has got to be looked into now afresh by the new State which has come
into existence in November, 2000.
4. Consequently, the parties have agreed that the matter be remanded
to the Secretary, Department of Mines and Geology, Government of
Jharkhand who will look into the matter and do the needful in
accordance with law. Let it be recorded that this order is being passed
on consensus of the parties. Since so much of time has lapsed and since
the petitioners have stated that the matter is pending since 1981, it
would be appropriate if the concerned authority deals with the matter
as ex-peditiously as possible and preferably within a period of six
months from the date of receipt of a copy of this order. It goes without
saying that for the convenience of all the parties, it will be the duty of
the petitioners to file a fresh set of all the documents for convenience of
the authority who will now deal with the matter.
5. Let it be recorded that this order has been passed at the threshold on
consensus and this Court has not entered into merits.
6. With the aforementioned observations and directions, this Writ
Application is disposed off. However, there shall be no order as to
costs.