Every normal human being is born with a neuro-physiological urge and desire
to have sex. This yearning to get the physical needs satisfied, that is having
sexual passion is a "too natural" human behavior.
Marriage is a social and spiritual contract underlying a permanent relation and
connection based on the mutual consent of the spouses. It is an institution that
legalizes the outflow of sexual passion and urge with the respective spouse for
the orderly growth of population.
In most cases, adultery is found to be the result and not the cause of unhappy
marriage. Adultery may be defined as the intimate sexual relationship between a
married man or woman with someone else other than his or her spouse. Section 497
of the Indian Penal Code defines adultery which affirms that 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 consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the
offence of adultery, and shall be punished with the imprisonment of either
description for a term which may extend to five years, or with fine, or with
The notion of moral discourse of the validity of this section has several times
come across the ambit of the courts. In the case JOSEPH SHINE V. UNION OF
INDIA2, on 27th September 2018, the Supreme Court finally struck down the
ancient Victorian morality law on adultery.
The Preliminary Plight
It wouldn't be wise to consign the 158-year-old law to the proverbial dustbin of
history. But, due to the presence of lacunae in the law, several times it has
been confronted before the courts. The constitutional validity of the law on
adultery was for the first time questioned before the Bombay High Court in the
case, Yusuf Abdul Aziz V. State of Bombay
The appellant filed a petition before the High Court under article 228 of the
Indian Constitution challenging the constitutional validity of section 497 of
the IPC as it wholly punishes men who are adulterous while the women are
exempted from the liability for participation in the same activity.
It was argued that solely punishing the male offenders and leaving the female
involved unpunished is violative of Article 14 which ensures the Right of
Equality in the Indian Constitution. This was defended by the respondent stating
that the society generally accepts that it is the man who is the seducer and not
the woman. Therefore, the law prosecutes the adulterous man to protect the
sanctity of marriage.
The court opined that the question of equality cannot be put up here and that
the law is applied differently to men and women as the offense under S.497 of
the Indian Penal Code was not meant to affect the woman in any way. Hence, the
appeal was dismissed.
Law on adultery was impeached again before the honorable Supreme court
Sowmithri V. Union of India
.4 The main issues raised were that the husband
of a woman involved in the illicit act of adultery has the right to take action
against the adulterer, but the wife has neither the right to do same against
such a man and nor against the woman with whom her husband was involved in the
extra marital relationship or committed adultery.
Also, Section 497 does not take the note of the cases where a man has the
physical involvement with an unmarried woman, which makes the husband free to
establish extra marital affair with an unmarried woman.
The Court took into consideration the arguments from both the petitioner and
respondent, concluded that the arguments by the petitioner have emotional
relevance but do not have any legal basis for support. The appeal by Sowmithri
Vishnu was denied and it was also expressed that it is the man who is the
seducer, and the offence of adultery can only be committed by a man by
Women Inured To Injustice
The wife could not sue her adulterous disloyal husband and the respective
adulteress woman engaged. In other words, women could neither sue and nor be
sued for the offence of adultery. Section 198(2) of The Code of Criminal
Procedure provided only for resentful husband the right to sue the man with whom
his wife was involved in an illicit relationship.
These provisions are made for social good and for the maintenance of sanctity of
the institution of marriage, as held in V. Revathi v. Union of India
where the petitioner challenged the constitutional validity of clause 1 & 2 of
Section 198, CrPc. This clearly showed the helplessness and predicamental sate
Despite being impeached several times in the courts, Section 497 stood valid for
years in the Indian Penal Code. But in contemporary times, adultery is no longer
an offence punishable under IPC. It may be considered immoral and merely a civil
wrong which can be a firm ground for divorce.
Pronouncement To Ameliorte Situation
A non-resident Keralite, Joseph Shine has filed a Public Interest Litigation
before the hon'ble Supreme Court under Article 32 of the Indian Constitution. He
did so because one of his friends being falsely charged of rape by a co-worker
in his factory, committed suicide. The petition filed challenged the law on
Adultery covered under Section 497 of The Indian Penal Code, read with Section
198(2) of CrPC, 1973 which provided how a complainant can file charges against
the offences cover under section 497 and 498 od IPC.
The object to file this petition was to protect man from such false charges and
mental harassment. The petitioner opposed the law on adultery and believed it to
be arbitrary and discriminatory as it is a gender-based law. Also claimed that
such laws demolish the dignity of a woman and intervene in the extreme privacy
of a marital relationship.
The Constitution of India guarantees the Right to Life to every person under
Article 21. And Right to Life does not only include the physical life but
everything that is prerequisite to live a dignified life.
The case of Joseph Shine v. Union of India
was heard by the Indian
Supreme Court in September 2018. The case dealt with the constitutionality of
Section 497 of the Indian Penal Code, which criminalized adultery. The
petitioner, Joseph Shine, argued that the law was discriminatory and violated
the right to equality and privacy guaranteed by the Indian Constitution. The
respondent, the Union of India, defended the law as a means of protecting the
sanctity of marriage.
The Supreme Court, in this landmark decision, struck down Section 497 of the
Indian Penal Code as unconstitutional. The Court held that the law was
arbitrary, discriminatory and violated the right to equality guaranteed under
Article 14 of the Indian Constitution. The Court also held that the law violated
the right to privacy guaranteed under Article 21 of the Constitution.
The Court noted that the law only criminalized the man involved in adultery, and
not the woman. The Court held that this was discriminatory, as it assumed that
the woman involved in adultery was a victim and not a perpetrator. The Court
held that this assumption was based on gender stereotypes and was therefore
The Court also noted that the law violated the right to privacy, as it allowed
the state to intrude into the private lives of individuals. The Court held that
the right to privacy extended to the intimate relationships of individuals, and
that the state had no business interfering in such relationships.
The judgment in Joseph Shine v. Union of India
is a significant step
forward for gender equality and individual rights in India. The Court's decision
to strike down Section 497 of the Indian Penal Code as unconstitutional reflects
a growing recognition of the need to eliminate discriminatory laws that
perpetuate gender stereotypes and violate individual rights. The judgment also
reaffirms the importance of the right to privacy as a fundamental right
guaranteed by the Indian Constitution.
The decriminalization of adultery is a positive development for several reasons.
First and foremost, it promotes the values of gender equality and individual
autonomy. Prior to this decision, only men could be punished for committing
adultery, while women were treated as passive victims. This approach was based
on outdated gender stereotypes and reinforced patriarchal attitudes that view
women as the property of their husbands. By striking down this discriminatory
law, the Supreme Court of India has taken a step towards ensuring that both men
and women are treated equally under the law.
Secondly, the decriminalization of adultery recognizes the importance of
personal privacy and freedom. The previous law allowed the state to interfere in
the private lives of individuals and dictate how they conduct their intimate
relationships. This violates the basic human right to privacy, which is
enshrined in the Indian Constitution. By striking down the law criminalizing
adultery, the Court has recognized the importance of individual autonomy and the
need for the state to respect personal privacy.
Also, decriminalization of adultery is likely to have positive social
consequences. Criminalizing adultery could lead to social stigma and ostracism,
which can be detrimental to the well-being of individuals and families. By
decriminalizing adultery, the Court has removed this legal sanction and provided
individuals with greater freedom to make their own choices about their
relationships. This is likely to reduce social stigma and promote more open and
honest communication within relationships.
The decriminalization of adultery is a positive development for India. It
promotes the values of gender equality and individual autonomy, recognizes the
importance of personal privacy and freedom, and is likely to have positive
social consequences. This decision reflects a growing recognition of the need to
eliminate discriminatory laws and promote human rights in India.
- The Indian Penal Code, 1860 (Act 45 of 1860), S. 497
- AIR 2018 SC 1676
- AIR 1951 SC 321
- AIR 1985 SC 1618
- 1988 AIR 835 1988 SCR
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