Section 497 of Indian Penal Code provides the law relating to adultery.
Adultery is an incursion on the right of the husband over his wife. It is a
misdemeanor against the sanctity of the wedlock and, an act, which is done by a
man. It is a standoffish and illicit act. The Apex Court previously considered
that it cannot be said that in construing the offence of adultery, any
constitutional provision is encroached by curbing the class of wrongdoer to men
The previous stand of higher judiciary was that Section 497 of IPC is not
paradoxical of Article 21 of the Indian Constitution. But, recently, the Supreme
Court has acknowledged 150 years old law on adultery as unlawful, which treats
husband as the master of his wife. It antagonizes the dignity of a woman. The
Court held that husband is not the master of wife. Section 497 of IPC is
categorically and conspicuously arbitrary and absurd because it provides
unlimited rights to husband to deal with the wife as he likes which is very much
When a man steals your wife, there is no better revenge than to let him keep
her. – Sacha Guitry
A plain reading of SECTION 497 of IPC tells us about the provision relating to
the offence of ‘adultery’. It reads as follows :
Adultery - 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
rape, is guilty of the offence 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 both. In such case the wife shall not be punishable as an
This is an offence against marriage. Adultery is an offence committed by a third
person against a husband in respect of his wife. A married man having sexual
- (a) An unmarried woman, or
- (b) With a widow, or
- (c) A married woman whose husband consents to it, or
- (d) With a divorced woman,
Commits no offence under this section.
History of Section 497
Justice R F Nariman said all ancient civilizations punished the Sin of
In Judaism, which again is an ancient religion, the Ten Commandments delivered
by the Lord to Moses on Mount Sinai contains the Seventh Commandment- thou
shalt not commit adultery- set out in the book of Exodus in the Old Testament.
In Christianity, we find adultery being condemned as immoral and a sin for both
men and women, as is evidenced by St. Paul’s to the Corinthians.
In India, too, Manusmriti provided for punishment for those addicted to
intercourse with other men’s wives by punishment which cause terror, followed
The Dharmasutras speak with different voices. In the Apastamba Dharmasutra,
adultery is punishable as a crime, the punishment depending upon the class or
caste of the man and woman.
Law of Adultery In Other Countries
The criminal law of adultery varies from country to country. It is not uniform.
It differs according to the religious norms, attitude of the people and many
Some countries where adultery is still a crime:
- United States of America (some states)
Some countries which have done away with adultery as a crime-
Some Cases In Which Law Relating To Adultery Was Challenged Before The Court:-
Yusuf Aziz v/s State of Bombay:
- New Zealand
The adultery law first came under challenge in
1951 in this case. Petitioner contended that the adultery law violated the
fundamental right of equality guaranteed under Articles 14 and 15 of the
Three years later in 1954, the Supreme Court ruled that Section is commonly
accepted that it is the man who is the seducer, and not the woman. The Court
stated that women could only be a victim of adultery and not a perpetrator of
the crime under Section 497.
Sowmithri Vishnu v/s Union of India
The Supreme Court held that the section
is not discriminatory between man and woman, i.e. an under inclusive definition
is not necessarily discriminatory. It does not offend either Article 14 or 15 of
The Court held that men were not allowed to prosecute their wives for the
offence of adultery in order to protect the sanctity of marriage. For the same
reason, women could not be allowed to prosecute their husbands.
V.Revathi V/S Union Of India
The Supreme Court held that not including women
in prosecution of adultery cases promoted social good. It offered the couple a
chance to make up and keep the sanctity of marriage intact. The Supreme Court
observed that adultery law was a shield rather than a sword.
Besides, these above judgments, there were two more important views in
connection with adultery law.
The Law Commission of India Report of 1971 (42nd report) and the Malimath
Committee on Criminal Reforms of 2013 recommended amendment to the adultery law.
Both argued to make Section 497 of the IPC gender neutral.
The offence of adultery reflects discrimination. It rests in larger part on the
idea that a woman is the property of the male. An analysis of Section 497 along
with various observations by the Supreme Court and High Courts, bring us to the
conclusion that only a man can commit adultery. The married woman who is
involved in the conduct is not punishable as the adulteress, because she is
treated as a victim, not as the author of the crime, because she has no
entity and she is a non-person. The section negates the free will of the woman
in adulterous conduct and does not concern itself with the intentions behind her
act. This is probably because the woman is looked down upon as an object, as an
inanimate property, whose rights are almost transferable.
Joseph Shine V/S Union Of India (2017) – The Case In Which Supreme Court
Struck Down The Law Relating To Adultery
In December 2017, Joseph Shine filed a petition challenging the validity
of Section 497. The three-judge bench, headed by the then-Chief Justice of
India, Dipak Mishra, had referred the petition to a five-judge Constitution
Bench, which comprised of Dipak Mishra, and Justices R F Nariman, A M
Khanwilkar, DY Chandrachud and Indu Malhotra, admitting that the law seem to be
archaic. While hearing the matter previously, the Court had observed that the
law seemed to be based on certain societal presumptions. In four separate and
concurring judgments, the Court struck down the law and declared that the
husband is not the master of his wife. However, adultery still remains a civil
offence. It can be a ground for divorce. The judgment directly blows the archaic
and patriarchal law in our country.
The Judgment held the following things:-
Section 497 Is Archaic And Is Constitutionally Invalid
Section 497 deprives
a woman of her autonomy, dignity and privacy. It compounds the encroachment on
her right to life and personal liberty by adopting a notion of marriage which
subverts true equality. Sexual autonomy is a value which is an integral party
and falls within the ambit of personal liberty under Article 21 of India
Constitution. Respect for sexual autonomy is established only when both the
spouses treat each other with dignity and equality. This section is a denial of
substantive equality in that it reinforces the notion that women are unequal
participants in a marriage, incapable of freely consenting to a sexual act in a
legal order which regards them as a sexual property of their spouse. In this
way, it is violative of Article 14. It is based on gender stereotypes and
violates the non-discrimination clause of Article 15. Besides, the emphasis on
the element of connivance or the consent of the husband tantamount to the
subordination of the women. Therefore, it clearly offends Article 21 of the
Section 497 To No Longer Be A Criminal Offence
A crime is something which
is committed on the society as a whole, while adultery is more of a personal
issue. Adultery dosen’t fit into the concept of the crime as that would
otherwise invade the extreme privacy sphere of a marriage. However, it continues
to stand as a civil wrong and a ground for divorce. What happens after adultery
is committed should be left to the husband and wife to decide as it is something
which should only involve their personal discretion. Hence, declaring adultery
as a crime would somehow creep injustice into the system.
A Husband Is Not The Master Of His Wife
The judgment places reliance in
the fact that women should not be considered as the property of their husbands
or fathers, for that matter, anymore. They have an equal status in society and
should be given every opportunity to put their stance forward.
Section 497 Is Absolutely And Manifestly Arbitrary:
It is absolutely and
manifestly arbitrary and irrational because it confers a license on the husband
to deal with his wife, as he likes which is extremely excessive and
disproportionate. The provision of Section 497 of IPC does not enable the wife
to file any criminal prosecution against the husband.
The Supreme Court has acknowledged 150 years old law on adultery as
unconstitutional, which treats husband as the master of his wife. The then Chief
Justice of India declares, The adultery law is arbitrary and offends the dignity
of a woman.
In this recent landmark judgment, the Apex Court directly blows the archaic and
patriarchal law in our country. Supreme Court in Joseph Shine case, has clearly
laid down that the beauty of the Indian Constitution is that it includes ‘I’,
‘you’ and ‘we’. The women cannot be considered as a property of men in the
modern progressive jurisprudential parameters and expansive constitutional
It further lays down that when there is consent of the man to develop
relationship outside the wedlock then there is no offence. The Apex Court
declares that autonomy, desire, choice and identity are the important aspects of
the dignity of woman.
In this regard, the Apex Court refers the judgment of K.S. Puttaswamy and
another v/s Union of India and others (2017) in which Court declares that right
to privacy is a fundamental right as prescribed under Article 21 of the
Constitution. The Court has recognized the conceptual dignity and equality of
woman, which cannot be curtailed.
Moreover, the Supreme Court asserted that adultery can be a ground for civil
issues such as dissolution of marriage however, it cannot be a criminal offence.
Adultery might not be the cause of an unhappy marriage however, it could be the
result of an unhappy marriage.
Along with Section 497 of IPC, Section 198 of CrPC is also declared
unconstitutional thereby decriminalizing the offence of adultery. Justice DY
Chandrachud asserted that, the history of Section 497 reveals that the law on
adultery was for the benefi of the husband, for him to secure ownership over the
sexuality of his wife. It was aimed at preventing the woman from exercising her
- B.M. Gandhi, IPC (Lucknow : Eastern Book Company, 2017)
- pragati publication – by Dr. Arshi Pal Kaur
- Sacha Guitry – Book of Humurous Quotations – 1998
- Times of India - by Dhananjay Mahapatra
- indiatoday – by Prabhash K Dutta
- legalbites – by Nandini Gupta and Gargi
Written By: Lakshita Sootrakar
- To File Divorce on Grounds of Adultery in Delhi and NCR
Contact Adv.Tapan Choudhury at Ph no: 9650499965 (Available
- To File Divorce on Grounds of Adultery in Pune
Contact NirDita Law Firm at Ph no: 8851978611 (Available