In this case, Public Interest Litigation has been filed under Article 32 of the Constitution in the Supreme Court of India for challenging the validity of Section 497 of the IPC along with Section 198(2) of the Criminal Procedure Code. This petition has been filled by Joseph Shine, who is a non-residence of Kerala.
Section 497 of the IPC deals with adultery, means sexual intercourse between two people who are not married to each other or between a married and unmarried person. Adultery can be punishable for five years of imprisonment or fine, or both and wife is not punishable under this section.
Section 198(2) of the Criminal Procedure Code specifies the offences against marriage. This section specifies that only husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 and 498 of the IPC.
She contended that language of this section is very vague and it violates Article 14 and 21 of the Constitution, as this section didn’t punish the woman and also didn’t cover unmarried woman. This was not the first time that validity of section 497 has been challenged, it is challenged earlier even in case of Yusuf Abdul Aziz v/s State of Bombay (1954 AIR 321), Sowmithri Vishnu v/s Union of India (1985 AIR 1618), and in Revathi v/s Union of India and ors. (1988 AIR 835), but in all these case courts held that Section 497 is constitutional and valid. In this case, the court allowed the petition and five-judge bench started hearing the matter.
QUESTION OF LAW
Whether Section 497 of the IPC and Section 198(2) of the Criminal Procedure Code violate the fundamental right?
- Section 497 of IPC violates Article 14 (Right to Equality) and Article 21 (Right to Life) of the Constitution.
- This section treated wife as husband’s property, if the husband gave his consent for adultery, then it will not consider as adultery.
- This section only punishes the husband, not the wife, so there is a distinction between man and woman.
The five-judge bench held that Section 497 of the IPC is unconstitutional and adultery didn’t consider as a criminal offence and Section 198(2) which defines the procedure for filing a complaint about adultery is also unconstitutional. The court held that it is not a criminal offence but adultery can be a ground for divorce in family law. Section 497 of IPC only punished husband and didn’t cover an unmarried woman who violates the Article 14 of the Constitution, i.e., right to equality although under Article 15(3) provides special provision for a woman, this section didn’t fall in this provision. It also violates the right to privacy under the ambit of Article 21 of the Constitution as it violates the sexual autonomy of spouses. Because of this adultery was decriminalised and only ground for divorce.
Submitted By: Nidhi Garg