Thursday, June 20, 2024

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๐™ฐ๐™ต๐™ต๐™พ๐š๐™ณ๐™ฐ๐™ฑ๐™ป๐™ด & ๐™ฐ๐™ฒ๐™ฒ๐™ด๐š‚๐š‚๐™ธ๐™ฑ๐™ป๐™ด

IPCMODEL ANSWER

ADULTERY

Explain briefly the concept of Adultery given under Indian Penal Code, 1860.

Since the time immemorial, Indian Society was considered as a patriarchal society where great dominance power had been given to a man and in our society, woman was always treated like a chattel. In India, woman was treated like an object and used by a man just to satisfy his lust. This societal behaviour and structure were against the women and affects the right of women. That was why, just to protect the rights of women, section 497 was added in Indian Penal Code, 1860.

Section 497 of Indian Penal Code, 1860, deals with the provisions of โ€œAdulteryโ€. According to this section 497, if a man commits sexual intercourse with the wife of another person without his consent, then in such a case the former person will not be held liable for having committed the offence of rape but he will be punished for having committed the offence of adultery given under section 497 of Indian Penal Code, 1860.

If a person commits sexual intercourse with the wife of another person without the consent of latterโ€™s husband, he will not be held liable for having the offence of rape. The main reason behind this is that he commits sexual intercourse with the woman with her consent. If he commits the sexual intercourse without the consent of that woman, then in such a case, he can be held liable for having committed the offence of rape. In case of โ€˜adulteryโ€™ given under section 497 of Indian Penal Code, 1860, he commits the sexual intercourse with the consent of woman but he is held liable and convicted under section 497 of Indian Penal Code, 1860, only because he commits the sexual intercourse without the husband of the woman.

  

According to section 497 of Indian Penal Code, 1860, a person can be convicted only if he commits the sexual intercourse with a married woman. If a man even if he is married commits the sexual intercourse with an unmarried woman, then in such a case, he cannot be held liable for having committed the offence of adultery.

In the year 1860, when the concept of โ€˜adulteryโ€™ was introduced under section 497 of Indian Penal Code, 1860, the main aim was to protect the rights and dignity of woman. According to section 497 of Indian Penal Code, 1860, a woman is not considered as an abettor but she is considered as a victim.

That is why, section 497 provides the punishment for a man and not for a woman. In case of adultery, if a woman commits a sexual intercourse with another person without the consent of her husband, then in such a case, husband of woman or wife of accused cannot initiate criminal proceedings against that woman. The only right which the husband of woman has to get the divorce from her wife. That was why, the constitutional validity of this section 497 was challenged in so many cases and at last it was declared unconstitutional.

In the leading case of Yusuf Aziz vs State of Bombay (SC 1954), the constitutionality of section 497 of Indian Penal Code, 1860, was challenged on the ground that it breaches the fundamental right of equality given under article 14 and 15 of Indian Constitution. But in this case, the Supreme Court held that section 497 of Indian Penal Code, 1860, is not ultra vires to article 14 and 15 of Indian Constitution. The court said that it is a man who commits the offence of adultery and this offence has been committed against the woman. So, to protect the dignity of woman, Parliament has right to make any law in favour of woman by exercising the power given under article 15(3) of Indian Constitution.

  

In the leading case of Sowmithri v Union of India (SC 1985), again the constitutionality of section 497 of Indian Penal Code, 1860, was challenged on the ground that it is contrary to article 14 of the Indian Constitution because it makes an irrational classification between man and woman and the main points which were raised in the present case are as follows: –

  1. Section 497 confers husband the right to prosecute the adulterer but does not confer any right to 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 account the case where a married man commits sexual intercourse with an unmarried woman.

On these grounds, section 497 of Indian Penal Code, 1860, was challenged and contented that it violates article 14 and 21 of the Indian Constitution. But in the present case, Supreme Court rejected these contentions and held that this section 497 is constitutionally valid and does not violate article 14 and 21 of Indian Constitution.

In this case the Supreme Court held that it is a man who is seducer and in case of adultery, woman is neither an abettor nor an author of the crime. It is agreed that time has changed and in this time period, a woman may be a seducer but it is a task of legislature to think over it. The court said when this section was added in Indian Penal Code, 1860, at that time the intention of legislature was to protect the dignity of woman. That is why, this section is constitutionally valid and not violative of article 14 and 21.

  

Even after this judgment, this issued was not resolved and again in the case of Joseph Shine v. Union of India (SC 2018), the constitutional validity of this section 497 was challenged. But in this case, the Supreme Court of India overruled its previous judgments and struck down this section and declared this section unconstitutional on the ground that this section 497 violates the fundamental rights provided under articles 14, 15, 19 and 21 given to a woman.

The Supreme Court declared this section unconstitutional just to bring the equality between a man and woman. The Supreme Court said that section 497 represents the patriarchal society where great importance is given to the consent of a male partner and ignore the freedom of female partner. That is why, to bring the equality between man and woman and to protect the fundamental rights of woman given under article 14, 15, 19 and 21, the Supreme court declared this section unconstitutional.

  

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