whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term that may extend to two years, or with fine, or with both. Sec 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. what about different sexual orientation? What if a married woman who had sexual intercourse with woman who is already married?

1. THE LAWONADULTERY
FROM YUSUFABDULAZIZ TO JOSEPH SHRINE
IN
RECOGNITION OFWOMEN’S SEXUALITY
Pallavi Devi, PG Department of Law, Gauhati University, pallavi@gauhati.ac.in

2. :The IPC on Adultery:
◦ Criminalized Adultery under sec 497, IPC.
◦ Chapter XX in the Penal Code
◦ One of the offences Relating to Marriage
◦ Victorian Moral Standards/justified by the colonial era courts

3. Sec 497 IPC:
◦ whoever has sexual intercourse with a person who is and whom he knows or has sexual intercourse with a
person who is and whom he knows or has 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 guilt 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 case the wife shall not be punishable as an abettor.
◦ Pre-Constitutional Laws by dint of Art 13(1) to the extent of inconsistencies with FRts is void

4. Sec 498 IPC
◦ whoever takes or entices away any woman who is and whom he knows or has reason to believe
to be the wife of any other man, with intent that she may have illicit intercourse with any person,
or conceals or detains with that intent any such woman, shall be punished with imprisonment of
either description for a term that may extend to two years, or with fine, or with both.

5. Line of Reasoning in Yusuf Abdul Aziz
◦ Yusuf Abdul Aziz v State of Bombay
◦ Sec 497 did not violate the equality guarantee under Article 14

6. The Development of the Equality Doctrine under the COI
◦ Article 14-18
◦ The Mandate in the Preamble
◦ Judicial Creativity of high order in interpreting the F.Rts
◦ The doctrine of implied Fundamental Rights
◦ Right to Privacy, rights of the LGBTQ to live with dignity/ right to equality

7. The Saga of the Adultery Law
◦ Yusuf Abdul Aziz (1954)
◦ Sowmithri Vishnu v UOI (1985)
◦ Revathi v Union of India (1988)

8. Perusal of the Adultery Law
◦ In 1988 the SC said, the Adultery Law was a shield rather than a sword
◦ Why: Law calls the punishment for the man but not the woman.
◦ And any law that treats men and woman differently, forces the tests of constitutionality to be
applied
◦ Reading Article 13(2) gives the same impression
◦ The spirit of Narasu Appa Mali is a stumbling block for judiciary to intervene.

9. Sec 497 had dishonest intentions:
◦ Sec 497 IPC does not bring within its purview an extra marital relationship with an unmarried
woman or a widow.
◦ what about different sexual orientation?
◦ What if a married woman who had sexual intercourse with woman who is already married?

10. Joseph Shrine v UOI
◦ There is a gap of more than thirty years from V Revathi (1988) and more than sixty years from Yusuf Abdul
to Joseph Shrine( 2017)
◦ The judges in Shrine categorically rejected the argument that the exclusion of the wife from being
criminally responsible under section 497 is affirmative action under Article 15(3).
◦ Chief Justice Misra:
◦ Justice Chandrachud:
◦ Justice Malhotra:
◦ Justice Khanwilkar
◦ Justice Nariman

11. Adultery: A Matrimonial Offence
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12. Appreciation of Women’s Sexuality:
◦ The Court can look into Navtej Singh Johar’s line of reasoning on sexual autonomy and consent to rely
on it.
◦ Shrine, establishes a firm foundation to the recognition of marital rape.

13. . .