The section contemplates that a man must have sexual intercourse with a woman who is the wife of another man and about whom he must have knowledge or must have reason to believe that she is the wife of another man. This sexual intercourse must take place without the consent or connivance of that man. This sexual intercourse must not amount to the offence of rape. The wife’s liability as an abettor in such cases has been expressly excluded by the section. The victim must be a married woman, but whether the offender is a married man or an unmarried man is of no consequence. If the victim is a widow, or an unmarried woman, or a married woman whose husband consents or connives to the sexual intercourse, the section is not attracted.
It is not necessary for the offender to know the victim’s husband’s identity because the section only says that the victim must be a married woman and the offender must either know or have reason to believe that she is the wife of another man. Consent or willingness on the part of the woman is not of any consequence. The fact of adultery has to be inferred from the totality of circumstances not reached by rash and intemperate judgment. Section 198 (1) of the Code of Criminal Procedure, 1973 says that no court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence, while section 198 (2) of this Code states clearly that for the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Indian Penal Code, provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the court, make a complaint on his behalf. Where a married woman had left the house of her husband and was found in the company of the respondent in a room in the dead of night and there was only one cot in the room and the two were found naked at the time, it was held that the circumstances clearly established an offence under section 497 by the respondent. Where the complainant was a Bengali Hindu and his alleged wife was a Bhutia Christian, and they were allegedly married according to the Nepalese custom and rites, it was held that the accused appellant could not be held guilty of committing adultery because no valid marriage had taken place. It was observed by the court that where a man and woman were living as husband and wife for a long time and the woman bore children and that they were treated by others as husband and wife could not be treated as evidence of a valid marriage to sustain a prosecution under section 497, especially so in view of section 50 of the Evidence Act. The prosecution must establish beyond doubt by cogent evidence, customary rites and performance of ceremonies that a man and a woman were married in accordance with law, and their mere living together as husband and wife would not prove that they in fact were husband and wife.
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In Brij Lai Bishnoi v. State where the evidence on record did not establish that the woman was married to the complainant husband, it was held that the mere fact that the parties were living together as husband and wife and giving birth to their progeny was not sufficient proof of marriage between them, and admission by an accused in his statement under section 313, Code of Criminal Procedure, 1973 that the woman was legally wedded wife of the complainant will not be of any avail to the prosecution, and hence the accused was entitled to acquittal. It has been held that a man who has been convicted of adultery, and continues to indulge in adulterous intercourse, would be liable to a second conviction for the fresh act. The Bombay High Court held the view that adultery is not a continuing offence, and every fresh act of adultery means a fresh conviction. Constitutionality of section 497 In Sowmithri Vishnu v. Union of India the Supreme Court was seized of the question of constitutionality of section 497 of the Code.
It affirmed its earlier view in Yusuf Abdul Aziz v. State that this section is not unconstitutional. The court observed that section 497 does not violate Article 14 on the ground that it makes an irrational classification between man and woman in that it confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband had committed adultery, and that it does not confer any right on the wife to prosecute the husband who has committed adultery with another woman, and that it does not take in cases where the husband has sexual relations with an unmarried woman with the result that a husband has a free licence under the law to have extra marital relationship with an unmarried woman. It does not offend Articles 14 and 15 on the ground that the wife with whom adultery is committed is saved from the purview of the section and is not punished as an abettor.
Sex is a sound classification accepted under Article 15 (3) of the Constitution. It is commonly accepted that it is the man who is the seducer and not the woman. The circumstances may have changed since the Indian Penal Code was enacted, but the sole prerogative is that of the legislature to see as to whether the law requires any change and, if so, what, and then do whatever it thinks should be done. Section 497 does not violate Article 21 either because even though it is true that this section does not have a specific provision that the married woman should be heard but that does not justify the proposition that the woman has no right to be heard even when she makes a request to the court that she be heard. The offence under section 497 is non-cognizable, bailable and compoundable, and is triable by magistrate of the first class.