In plain reading, Section 497 seems gender biased, but we shall have to bear in mind the time in which this law was enacted, and the position of women through the ages in our society. A simple interpretation of the above provision would indicate that a man having sexual intercourse (not amounting to rape) with the wife of another man, with express knowledge of the same, will be held guilty of the offence of Adultery. In addition to this Section 497 provides that the woman, will not be held responsible for this offence. Since this provision is different from rape, it means that the sexual relationship was established by the consent of both individuals while the man is liable under this section, the woman stays immune.
In the case of Sowmithri Vishnu v Union of India (Sowmithri Vishnu v. Union of India, 1985 Supp SCC 137), before the Supreme Court these points were raised. The Court did not interfere with the ingredients of Section 497. The Supreme Court held that the Section 497 is not violative of the Article 14 or Article 15 of the Indian Constitution
With regard to the application of this provision where the husband has a sexual relationship with another woman and the wife cannot prosecute under this section for adultery, the Supreme Court stated that this was a decision of the legislature and cannot be interfered with. The Court also pointed out that Section 497 does not mean that the husband has the free license to have an extra marital affair, as it only made a specific kind of extra-marital relation as an offence which it considered to be most seen and common. The Court identified that in such incidents, the wife has the option to seek divorce or apply for separation under the personal laws as adultery is recognized as a ground for divorce application. The Supreme Court considered the structure and ingredients of Section 497 as a policy of law and therefore restricting the scope of adultery with regard to the wife’s illicit relationship is not violative of any constitutional provision.
The issue of immunity to the wife was also raised in this case where the Court held the legislator formulated the law on the presumption that the wife who is involved in an extra-marital sexual relationship is not a author of a crime but is a victim. The presumption was based on the idea that adultery is an offence against the sanctity of a matrimonial home, and the offence is generally considered to be committed by a man. Considering this background of the legislature, the Court was satisfied that the provision was valid under the Indian Constitution.
Hence, after reading of the above judgement, It is anticipated that both the sides of the coin of Section 497 IPC has been revealed, and as there has been many recommendations for amendment, none has been finalised so far. In the judgment the Court has focussed more on upholding the will of the Legislature and has avoided taking an activist role. Instead of identifying the provision as unfair or gender biased, the Court has tried to list down different ways in which other statutes have tackled the issue of adultery. The plain reading of the provision indicates that the provision gives immunity to the wife participating in the adulterous relationship and also leave no option before the wife if the husband participates in an illicit relationship but the opinion of the Supreme Court indicates that the law caters to these issues by a divorce petition but not under the Indian Penal Code.