Abolition of Section 497 and Honour Killing in India

Research Paper authored by Abhay Kumar, law student from Lloyd Law College, Greater Noida

The word “adultery” derives its origin from the French word “avoutre”, which has evolved from the Latin verb “adulterium” which means “to corrupt”. The dictionary meaning of adultery is that a married man commits adultery if he has sex with a woman with whom he has not entered into wedlock.

Under Indian law, section 497 IPC makes adultery a criminal offence and prescribes a sentence of imprisonment of up to five years. The offence of adultery under Section 497 is much more limited in scope than the misconduct in adultery, as is understood in divorce proceedings. This offence is committed only by the person who had intercourse with another person’s wife with subsequent consent or collusion. The wife is not punishable for being an adulterer, or even as an insult to the transgressor. Section 198 CrPC deals with a “distressed person”. Sub-section(2)- The woman’s husband is presumed to have suffered from the offence committed under section 497 IPC and in the absence of the husband, some person who cared for the woman at the time when the crime was committed with the permission of the Court. It does not consider the adulterer’s wife to be a distressed person.

Section 497 IPC and Section 198(2) CrPC together constitute a legislative package to deal with the crime of adultery.

Objective 

The purpose of section 497 is to preserve the sanctity of marriage.

However, this object is not in favour of the Supreme Court. In Joseph Shine, the Court observed:

“… is being advocated by the state to protect and preserve the sanctity of marriage, as the obsessive object is not, in fact, the object of section 497…”

It was further observed that the sanctity of the married could be destroyed by a married man having sex with an unmarried woman or widow who is not punished by the legislature. Further, if the husband consents or consents in intercourse which amounts to adultery, the offence is not committed, which suggests that it is not the sanctity of the marriage that is sought to be protected and protected, but an ownership right to the husband.

Indian Penal Code

Section 497; Adultery — 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 a case, the wife shall not be punishable as an abettor.

Criminal Procedure Code

Section 198; Prosecution for offences against marriage — (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:

(2) For the purposes of subsection (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 said Code:

Provided that in the absence of the husband, some person who had the care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

Classification of offence 

The offence of adultery is non-cognizable (a case in which a police officer cannot arrest the accused without an arrest warrant). Also, it is a bailable offence. 

Who can file a complaint

Only the husband of the woman with whom adultery is committed is treated as an aggrieved person, and only he can file a complaint. However, in his absence, some other man, who cared for the woman at the time when such a crime was committed, may file a complaint on behalf of the husband if the Court permits. [Section 19 [(2) CRPC]

Ingredients

To constitute an offence of adultery, the following should be established: –

  1. Intercourse between a married woman and man who is not her husband;
  2. A man having intercourse with a married woman should know or have reason to believe that she is the wife of another man;
  3. Such sexual intercourse should be with his consent, i.e. he should not pay the amount for rape;
  4. Intercourse with a married woman should be without the consent or consent of her husband.

Chapterization:

  1. Introduction
  2. Adultery in India –Origin And History
  3. Objectives and Ingredients
  4. Proposed Reforms in the Present Law of Adultery in India
  5. Historical Perspective of Adultery and Comparative Study on the Laws on Adultery
  6. Honor Killing in India
  7. Adultery-A Critical Analysis
  8. UN and Gender Inequality in Adultery
  9. Case Analysis
  10. Conclusion and Suggestions

References:

Read Full Paper here-

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