What with an unmarried Women/ widow. Why such Gender

What is Section 497 (adultery) of the Indian Penal Code? Explain how it
promotes gender discrimination and Mention the stand of judiciary in this
respect?

The Supreme Court has decided to re-examine the offence of
adultery. Because it is gender discriminatory. In another judgement Supreme
court has held that Adultery itself is not cruelty to wife.

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What is Adultery?

Adultery is an act of voluntary sexual intercourse of a married
person other than with spouse.

Adultery Law in India

Under IPC (Indian Penal Code)1860, Section 497 adultery is punishable
offense. Adultery is punishable with an imprisonment for a term up-to five
years, or with fine, or both.

Section 497 of IPC

This section is gender discriminatory in nature. As this Section
punishes only men having voluntary sexual intercourse with other men’s wife, and
not women. Section 497 is violative of Article 14 (Equality before law), Article
15 (Prohibition of discrimination on grounds of religion, Race, caste, sex) of
the Constitution of India as it discriminates among the genders.

Section
198 (1) and (2) of the Code of Criminal Procedure

It mentions that only a husbanded of a women can be an
aggrieved party in offences against marriage like adultery under section 497 of
IPC and only the husband can go to the court.

How Gender Discriminatory?

Under section 497 if adultery is committed, the husband can’t
prosecute own wife but can only prosecute her adulterer. Section 497 differentiates
between consent by a married woman without her husband’s consent and a consent
given by an unmarried woman. It doesn’t criminalise the sexual intimacy of
Married Man with an unmarried Women/ widow.

Why such Gender Discrimination?

When section 497 was enacted polygamy was prevalent in the
society. Often women were starved of love of their husbands, such women could easily
be attracted to other men who offered it to them. Law Commission of India, 1847
on whose recommendation IPC, 1860 was prepared recognised, the poor condition
of women (Prevalence of Sati, Gender Discrimination, Purdah System, Female Foeticide
etc) and also accepted the responsibility to protect women.

Supreme Court Judgements

Yusuf Abdul Aziz case

Constitutional Bench ruled that Section 497 is not
inconsistent with article 14&15 of Indian Constitution as the constitution
itself provides protection to women and children.

Sowmithri Vishnu v. Union of India

Supreme Court analysed the meaning and the purpose of the
law. SC considered man and not women as seducer. Thus Upheld the validity of
Section 497 of IPC.

V. Revathi v. Union of India

 

Fifth Law
Commission in 1971 suggested about reducing the imprisonment term from 5 years
to 2 Years and making Section 497, gender Neutral. But these suggestions were not
accepted.

National Commission
for women in 2006 recommended that Adultery should be decriminalised.

Criticism Against the Law

Some criticize it that it has not been able to keep Adultery
at bay. But so is the case with other criminal Laws. No law in itself is a fool
proof against any crime.  

As this provision treats Women as a personal property of men
and does not consider women as an independent entity, which is further impediment
to Gender Empowerment.

Criminalisation of a particular act does not change social
behaviour.