Criminal Law

Sowmithri Vishnu v. Union of India

AIR 1985 SC 1618

Facts

Sowmithri Vishnu challenged the former Section 497 IPC.
The provision criminalised a man’s sexual intercourse with another man’s wife without the husband’s consent.
It did not:
allow a wife to prosecute her husband for adultery;
punish the married woman;
cover intercourse by a married man with an unmarried woman.
The petitioner argued that the provision was discriminatory and irrational.
She contended that it treated:
husbands as owners of wives;
women as passive objects;
similar extramarital relationships differently.

Whether Section 497 violated Articles 14 and 15.
Whether limiting the offence to intercourse with a married woman was arbitrary.
Whether excluding women from prosecution and denying wives an equivalent remedy was unconstitutional.

The Court applied the traditional presumption of constitutionality.
It held that the legislature may define the scope of an offence and address one part of a perceived social problem at a time.
Under the then-prevailing reasoning, exemption of women remained protected by Article 15(3).
The Court treated adultery as an offence directed against the stability of marriage and the intrusion of an outsider into the matrimonial home.

The Court rejected the argument that every participant in an extramarital relationship had to be punished equally.
It characterised the married woman as a victim rather than the author of the offence.
The outside man was regarded as the person invading the marital relationship.
It also rejected the demand that a wife should be able to prosecute her husband or the woman with whom he had relations.
According to the Court, expanding criminal liability was a matter for Parliament rather than judicial interpretation.
The provision’s limited reach was treated as legislative policy, not unconstitutional under-inclusion.
This reasoning reflected a paternalistic understanding of marriage:
the husband was treated as the person whose marital interest was invaded;
the wife’s independent sexual agency was denied;
the husband’s consent could prevent the act from being an offence.
The Court did not regard these features as constitutionally fatal at the time.
Later constitutional jurisprudence on equality, dignity and privacy exposed the weakness of this approach.
Joseph Shine expressly rejected the view that treating women as incapable victims is genuine protection.

The Supreme Court upheld Section 497 and dismissed the challenge.
It maintained the male-only liability and female exemption.
The judgment has been overruled in substance by Joseph Shine, which struck down the adultery offence as discriminatory and paternalistic.
Use this case for: the former judicial defence of adultery as an offence against marriage and the historical treatment of women as victims rather than autonomous participants.