According to section 497 of the Indian Penal Code 1860 - "Adultery is Whoever
has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of that
man, such sexual intercourse not amounting to the offense of rape, is guilty of
the offense 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
In India, the law of adultery is criminal under section 497 of the IPC; however,
the code's writers did not make adultery a punishable offense; it was the Second
Law Commission, after due deliberation of the topic, that concluded that it was
not appropriate to omit this offense from the code. Adultery is a crime in many
countries, and its absence from English law has been criticized by some of the
country's most prominent lawyers.
When compared to the misconduct of adultery as understood in divorce
proceedings, the offense of adultery under Section 497 has a very limited scope.
The offense is only committed by a male who has sexual intercourse with another
man's wife without the man's knowledge or consent.
The wife is not prosecuted for adultery or for assisting and actively supporting
the act. Section 198 of the Criminal Procedure Code defines a "person
aggrieved." Subsection (2) considers the woman's husband to be harmed by an
offense under Section 497 IPC, and in the absence of the husband, any person who
was caring for the woman on his behalf at the time the offense was committed,
with the court's permission. It does not regard the adulterer's wife to be a
In a prominent case of Sowmithri Vishnu vs. Union Of India
(1985 AIR 1618), Chief Justice of India said that it is commonly accepted that
the seducer is the man and not the woman.
However, sexual contact with an unmarried woman or widow has not been deemed
adultery. Adultery is a crime committed against the husband, not the wife.
When we take a look at adultery from a religious point of view, In Hinduism,
even in earlier days when a woman was not advised to take divorce and was looked
down upon if she did so, the act was adultery was not acceptable.
And in the Quran, adultery is considered to be a sin and was served with the
penalty of one hundred lashes and being stoned to death, but it is not the same
in today's time as we now believe in the humane treatment of people. Also, in
Christianity, Adultery is equal to homicide.
Defect In Section 497
We can clearly see that the law of adultery discriminates on the basis of gender
and only punishes a man for the offense and gives the green chit to the woman
who was an equal partner in the act committed. Earlier it was reasoned that
women are weaker and hence should be protected, and it was also said that it is
only the man who seduces the girl, not vice versa. Section 497's validity was
challenged in the case of Yusuf Abdul Aziz vs. the State of Bombay.
(Yusuf Abdul Aziz v. State of Bombay
(1954) SCR 930)
Because it breaches Articles 14 and 15 by claiming that a woman cannot be a
culprit or even an accomplice, a three-judge bench confirmed the
constitutionality of the abovementioned provision since it is a specific
provision intended for women and is safeguarded by Article 15. (3). And, because
Article 14 is a general law that must be interpreted in connection with other
provisions, and sex is just a categorization, it is legitimate when both are
Considering the prevailing scenario and the tremendous upheaval that society has
experienced, thinking that the man is the seducer and not the woman is a risky
idea; the shoe is now on the other leg in a lot of scenarios. The law
establishes an unreasonable distinction between man and woman by confining the
class of offenders to males, despite the fact that women or wives are equal
partners, and thus contradicts constitutional prohibitions stated in Articles
14, 15, and 21.
In the offense of adultery, only a man with whose wife any man has had
intercourse can bring the suit into action. A woman cannot bring a suit if his
husband has sex with other women. This section considers a woman to be merely a
property that a man owns and has full rights over.
This section also affects a dignity of a woman as it states that if the husband
gives consent to the sexual act of his wife, it will not be considered to be an
adulterous act. Here again, the consent of a woman does not matter.
All these defects are corrected and decriminalized adultery in the case of (Joseph
Shine vs. Union of India
Under Article 32 of the Constitution, Joseph Shine initiated a public interest
lawsuit (PIL). The petition questioned the validity of the adultery offense
under Section 497 of the IPC and Section 198(2) of the CrPC. He said that it
discriminated against males by holding them exclusively accountable for illicit
affairs while considering women as commodities.
In this case, the Supreme Court ruled that:
The law only regards the husband as an aggrieved party with the right to pursue
the act, whereas the wife has no such right. The provision is not founded on the
notion of equality. Hence violating article 14
This law discriminates against a married woman based on her gender. This clause
is founded on the misconception that a husband has total control over his wife's
sexuality and that she is his property. Because it is gender biased and
reinforces the stereotype of a husband managing his wife's sexual liberty, the
provision breaches Article 15(1) of the Constitution.
The clause allows for adultery with the husband's permission or connivance,
providing a male power over his wife's sexual autonomy. When women are seen as
victims, their uniqueness suffers, and their existence without their spouse is
called into doubt. Forced fidelity is enforced by limiting sexual autonomy,
which violates Article 21's basic right to dignity and equality.
Adultery is a crime that can lead to up to 5 years in jail for a third person.
This is not needed, according to the court. This law designates a spouse as a
sufferer and a wife as an aggrieved party. Even if the law changes to provide
women equal protection against adultery, it remains entirely private. Adultery
should be seen as a valid basis for divorce rather than a criminal offense.
Under Section 497 of the Indian Penal Code, adultery can now be used as the
foundation for any civil wrong, including divorce.
Prior adultery not only differentiates between men and women, but it also lowers
a woman's dignity. When society was saturated with male patriarchy and moralism,
this was introduced as an offense. Women were regarded as not belonging to that
culture, and they did not get the same rights and privileges as males. And
married women were not viewed as individuals but as the possession of their
husbands, as indicated by the provision for adultery.
However, things have transformed, and women are no more shrouded in the shadows
of males. Adultery is not a criminal offense since it is a private affair in
which the courts should not participate. Interfering with an individual's sexual
autonomy would be a breach of constitutional standards. Interfering with an
individual's sexual autonomy would be a breach of constitutional standards.
The Joseph Shine decision decriminalizes adultery and permits it to be used
exclusively as a foundation for civil wrongs.