Against the personal choices and beliefs, there have been some restrictions which have followed to the modern society of today came with the advent of marriage institution. Which meant union of man and woman to the exclusion of all others. This was taken in more serious sense qua women and therefore a wife to someone was considered as unapproachable to another man and whosoever attempted to include into this sacred and prohibited arena was considered to be a criminal committing an offence of adultery. In ancient and medieval societies, even the women have been brutally treated for the offense up to the instances of stoning to death, however, with the coming of modern laws and a specific reference could be drawn to the codified law under section 497 of IPC, 1860, wherein a sexual intercourse with a wife of another man without consent and connivance of that man is considered an offense of adultery, punishable with imprisonment with up to a term of five years or with fine or both.
The very noticeable aspect of this section is that no offense is attributed to the wife. She is not taken as an abettor and another significant aspect is that if this relation is established to be with the consent or connivance of the husband, then it not considered as an offense.
Thus what is protected is the will of a married man qua his wife. He may permit her a relation or he may not. His permission becomes quite a relevant position here and this is the sole reason why feminists have from time to time raised objection against the patriarchal nature of this law, since no laws of adultery implies on a married man if he has consensual physical relation with an unmarried adult women even without the consent of his wife. This liner codification has been tagged as hypocrisy by the activists. If we study carefully the genesis of adultery laws, it is found that it owed much to the capability of females to bear child and protection of a right of men to raise his own and of none other, since DNA tests had not come in the picture back then.
The essential ingredient thus of section 497 are:
a. It must be committed with the wife of another man.
b. The person must either have the knowledge and reason to believe that the women is wife of another person.
c. It must be without the consent or connivance of the husband of another woman.
d. It must not amount to offense of rape. (offense of rape is more severely punishable)
In Yusuf Abdul Azis V/s. State of Bombay, 1954 GIJ 886 (SC), the apex court was presented with the proposition that section 497 is Violate of Article 14, 15 and 21 of the constitution i.e. it is ultra vires the constitution on principles of equality and personal liberty with the question mark that why only a man is liable? The Hon’ble Apex court after a thorough brooding of the matter observed that by virtue of Article 15 (3), the state can make special provision for women and children and this classification and provision is reasonable and has a sound nexus to the object of protecting women in the society.
