KOLKATA: Four years ago, a state government employee had approached the police complaining about his
wife’s adulterous relationship with his child’s pool car driver. He also filed for a divorce, which is in its last leg. But the adultery probe has not been completed. However, the investigators now are likely to file a closure, after the apex court struck down Section 497 of IPC.
Probing cases under Section 497 of IPC has always been a tough ask for investigators, primarily for lack of evidence. Lawyer Sanjay Basu explained what happens to such FIRs now: “In the event an investigation is embarked upon after taking permission from the magistrate (as it is a non-cognizable offence), then in the view of the Supreme Court’s judgment, the investigating agency is liable to file a closure report since the act is not an offence anymore.” Basu said, “If a complaint is filed with the magistrate and cognizance has been taken, but the process has not been started then the complaint is liable to be dismissed in terms of Section 203. If a process has been started then a discharge application has to be filed as the act has been decriminalised by the Supreme Court,” he added.
Fifty-nine years ago, a three-judge bench of Calcutta high court had clearly laid down what constituted an offence under Section 497 of IPC and what was required to prove the charges. The HC explained, “A man, who commits an act of sexual intercourse with a prostitute or with an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery”. “This penal section, by its very definition, is ambiguous,” a senior police officer said.
“Many divorce petitions are filed citing adultery as a reason. Police, however, can only draw up criminal charges with a magistrate’s consent (the section is non-cognizable) and if the complaints fulfil specific criteria,” he said.
In Kolkata, for example, in the high-profile divorce proceedings involving cricketer Md Shami has adultery as one of the charges. However, section 497 of IPC was not drawn up, lawyer Zakir Hossain said. “Unless the police investigate the adultery charges, who will prove it? A civil court hearing the case will not investigate adultery claims,” he said.
Lawyer Tanmoy Chatterjee said, “Adultery is a ground for divorce under Section 10 of the Indian Divorce Act. It has a much wider ambit as the criminal section is only applicable to male offenders.” Sociologist Prasanta Ray believes the change was inevitable as law follows alterations in societal norms.
“Adultery in extra-marital relationships is a reality that can’t be wished away through laws. So, we as a society have to accept it. Since legal recourse wasn’t a practical solution, the law had to change. But this will embolden those who are in such relationships,” said Ray.
Psychiatrist J Ram agreed. “This was a needless law since it is difficult to prove adultery when two consenting individuals are involved,” said Ram. Ray pointed out that adultery was not well-defined in legal terms. “It was never made clear what constitutes adultery,” he said.
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