497 Adultry

 

Yusuf Abdul Aziz Vs State - 26th June 1951 - AIR 1951 Bom 470

History of 497 IPC

1. In very famous and a very brilliant passage in the Introduction of the Indian Penal Code where the authors of the Code point out why they adopted this particular line in 497 Contrary to principles of law known and understood by the great Hindu law giver Manu by principles of law embodied in the Mahomedan law and even in may European systems of law, and the resons given by the authors of the code stand as a permanent tribute to the enlightenment and humane outlook of those who were responsible for framing the code.
2. The authors of the Code were oppressed by the fact that when they were enacting the code the position of women in this country was in a shocking state. They point out that women were married when they were children, they were married to men who could marry any number of wives, that they had to share the attention of the husband with several rivals. They might also have pointed out that indian society believed in and upheld the system of seclusion of women, that women were deliberately put down, that there was a belief that women were not the equal of men in any walk of life and that every possible consideration weight with the authors in taking a liberal enlightened view in FAVOR of women in this country; and therefore they point out that it would be weighing the scale against women which scale was already too much depressed by making women punishable for committing the offence of adultery. 
3. Women according to them were more often than not mere tools and passive tools in hands of men and placed as they were it was impossible for them to resist the blandishments that men might hold out aginst them. It was this background and it was in the context of this society Section 497 was enacted.
4. 497 IPC  position in law which takes a sympathetic and charitable view of the weakness of woman in this country. 
5. 497 IPC should not find a place in modern code of law. Day are past we hope when women were looked upon as property by husband. but that is a argument more in favor of doing away Section 497 
6. Is this violation of A14 & A15 of Constitution of India
1. The state shall not discriminate against any citizen on grounds only of .... sex
2. Sub-caluse(3) - of A15 - "Nothing in this article shall prevent the state from making any special provision for women..... "
1. it was argued that 15(3) should be confined to provisions which are beneficial to women and cannot be used to give them licence to commit and abet crimes.
2. Court said - we are unable to read any such restrictions into the clause; now are able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.

Joseph Shine Vs Union of India - (2019) 3 SCC 39 - link

1. 497 IPC struck down.
2. Declared ultra-vires of the constitution, no conviction under Section 497 of IPC can be sustained.
3. Being violative of A14, 15, 21 , section 198(2) CrPC which contains procedure for proseuction under XX IP C was also held unconstitutional only to the extend that it is applicable to the offence of adultery under Section 497 IPC
4. As per A141 of Constitution of India, the Law declared by the Hon'ble Supreme Court is binding on all courts within the territory of India and the law laid down by the Hon'ble SC applies to all pending proceedings

Rupesh Vs Shri Charandas 2018 SCC Online Bombay 629

1. Joseph Shine has been followed and conviction and sentence u/s 497 has been set aside under reversional Jurisdiction
2. Upon perusal of Joseph Shine decision of SC, there is no indication that the same would apply prospectively and there is nothing like prospective operation of law laid down by SC
3. Maj Gen A.S.Gauraya & another Vs S.N. Thakur (1986) 2 SCC 709