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Indian Law on Adultery: A Socio-legal Perspective on the Institution of Family

This is a narrative review on the topic adultery which considers the socio-legal perspective on the institution of family. The author has laid emphasis on the morality debate of adultery questioning its existence in the Indian Penal Code. The journey of its constitutional validity is significant. The litigation that has paved the way for democratic tenets regarding section 497 has been covered. The historical context of adultery law in the Hindu scriptures and its presence in Christianity and Islamic scriptures.

The author has analyzed about the key ingredients of adultery which contribute to the commission of the act. Deep analysis has been done over the interference of state into personal laws of citizens. The interference has been questioned by almost each religion. The laws which are framed around the practices have been cited and discussed. Sociological analysis over the criminalization of adultery has been critically examined.

The concept adultery revolves around the issue where the spouse has committed betrayal towards another and has engaged into a sexual intercourse outside the marriage. Adultery has been defined under Section 497 of Indian Penal Code. The other provision which is read along with it is Section 198 of Criminal Procedure Code, 1973. It states husband as aggrieved one and also it states husband can be convicted for committing adultery. In the known history of human civilization, adultery was also forbidden since it directly jeopardized the institution of matrimony, which was invaded by strangers.

The ironical part which arises is wife cannot be held guilty of adultery and punished for it. The above provision of adultery was held unconstitutional in 2018 and was then repealed from the Indian Penal Code,1860. The questions were always there regarding the arbitrariness of the act as it held only men punishable for it. The effects and repercussions of adultery have been discussed in the article as to how it provides as a ground for divorce under Section 13 of Hindu Marriage Act, 1955.

Historical context
In order to trace the relevance and existence of the present provisions its roots and history has to be analyzed. The adultery law has its presence since the inception of marriage as an institution. According to Manusmriti engaging into a sexual intercourse outside a marriage was not considered ethical and was punishable. The classical case is depicted in the purana which was of Ahalya, where she was duped by Indra as her husband for which she was cursed for the commission of the act and changed as stone.

The adultery provisions are mentioned under Section 497 of IPC. These provisions were not added in the first draft 1837 but Lord Macaulay felt that these provisions are baseless and questioned the efficacy of this being added to the IPC. He felt that these fall under the ambit of personal laws and should be left to the community itself. The second Law Commission recommended to add the adultery provisions in IPC for a reason that, men who commits adultery should not get away and should be punished for marital infidelity offences.

The punishment enshrined in Section 497 is the offender will face imprisionment which will be extended upto 5 years or fine provided wife is not an abettor. Section 198 (1) of the Code of Criminal Procedure 1973 says that no court shall take cognizance of an offense punishable under chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offense while Section 198 (2) of this Code states clearly that for sub-section (1), no person other than the husband of the women shall be deemed to be aggrieved by any offense punishable under Section 497. Since Section 497 was a pre constitutional provision, back then women were considered as a property and adultery was the theft of the property it literally caused injury to the property of the husband.

Key ingredients of adultery law:
  1. The provision states that only a man who has committed adultery can be punished for the act, i.e., imprisoned for 5 years and fined or both.
  2. Women are exempted from the provision.
  3. If a wife has knowledge about the fact that her husband has engaged in sexual intercourse outside the marriage and she accepts it, it would not amount to adultery.

The Supreme Court in the case of Joseph Shine v. UOI struck down the provision and held it to be unconstitutional. The object of Section 497 is to preserve sanctity of marriage. The society abhors marital infidelity. However, this object does not find favour with the Supreme Court. In Joseph Shine, the Court observed thus: "� the ostensible object, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not, in fact, the object of Section 497 at all �"

It was further observed that the sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow which is not penalised by the legislature. Also, if the husband consents or connives at the sexual intercourse that amounts to adultery, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband.[1]

The journey of questioning the constitutional validity emerged from the several cases one of them was Sowmithri Vishnu v. UOI & Anr 1985. In the above case the petitioner sought for divorce from her husband, the trial court rejected the petition stating that she herself has left the company of her husband. In counter to it husband filed a divorce petition as she deserted him and she was living in adultery with other man.

The High Court accepted her plea and held that since, the finding recorded in the earlier petition was binding on the parties, a decree for divorce had to be passed in favour of the husband on the ground of desertion and that, it was unnecessary to inquire into the question of adultery.[2] The High Court stated that the concept of adultery has to be broadened and breaking into a matrimonial home is no less serious a crime than breaking open a house.

Such arguments focus on a law�s policy rather than its constitutionality, unless a constitutional provision is violated while the policy is being carried out. We cannot accept that any fundamental requirement has been violated by classifying adultery as a crime that only applies to male offenders. It is accepted that the men who is the seducer and not the women.[3]

In the case of Joseph shine v. UOI 2018 Hon�ble Supreme Court overruled the judgment of Sowmithri v. UOI 1985 and held that section 497 IPC to be unconstitutional. The court held that these provisions were violative of article 14,15 and 21 as they defeated the objective of fundamental rights. A statute that denies women the ability to pursue legal action is not gender-neutral. This clause violates article 14 of the constitution and discriminates against women. The clause breaches Article 15 of the constitution by discriminating against a married woman on the basis of her sex and harming her. Article 15 does not apply to beneficial legislation that includes such a provision. A woman's sexuality is an intrinsic element of who she is; neither the government nor the institution of marriage have the right to diminish it.

Interference of criminal laws into personal laws

one of the best example of this is of triple talaq. In the case of Shayara Bano v. UOI 2017 the Supreme Court held that the custom of triple talaq to be unconstitutional. Ms. Shayara Bano and Mr. Ahmed got married in 2002, the wife claims that at the time of marriage the husband�s family claimed for dowry and was given. With the pace of time the husband intoxicated her, abused her when fell ill he left her. In 2015 her husband divorced her by the practice of triple talaq. Ms. Bano filed a writ petition claiming that triple talaq violates her right to equality, right to livelihood, and right against discrimination.

In a 3:2 split, the majority held that the practice of triple talaq- was 'manifestly arbitrary� and unconstitutional. Chief Justice Khehar and Justice Nazeer dissented, stating that talaq-e-biddat was protected by the Right to Religion and that it was the job of Parliament to frame a law to govern the practice.[4] The maximum punishment given for committing the practice is 3 years. This is one of the classical instances where the criminal laws interfered into the personal laws.

The other instances in hindu law where the practices were criminalized where
  1. Child marriage: The practice of child marriage was very much prevalent since the inception of marriage as an institution. According to the Hindu concept of marriage it only occurs when not only two individuals but two families come together. The child marriage assures that both the families are now relieved from their duties. It was only in 1929 the Child Marriage Restraint Act was introduced to curb the concept of child marriage. It was the first time when personal laws relating to child marriage were criminalized.
  2. Dowry prohibition: The Act was introduced to criminalize persons involved in dowry. This act is an example of the State getting involved in criminalizing the practices of personal laws which are unjust.
  3. Banning of sati pratha: The act introduced to strike down sati pratha was the Sati Abolition Act, 1829. It was a pre-constitutional law which banned the commission of sati pratha throughout India.

Adultery: Sociological Analysis

Adultery in the layman language for society means extra marital affair. The society terms it as ethically wrong. Society considers that committing adultery is against the morals of a marriage. The early roman opinion about committing adultery can be see in the Cato's speech, which Gellius quoted literally, is clear on the husband's right to kill his wife if he caught her red-handed committing adultery. However, it lacks precision about the identity of the censor, the nature of the family council, and the wife's punishment in the case of the husband divorcing his wife.[5] The famous jurist Ulpian believed that it was most unfair for a man to require from a wife the high moral values and chastity that he does not himself practice.

In a country like ours where democracy is practiced and the state ensures equality, justice and fraternity among citizens somewhat it seemed to have been compromised regarding the adultery provision. The Hindu Marriage Act provides adultery as a ground for divorce and IPC provides the accused to be punished for a term of 5 years or fine. The above two provisions defeat the institution of marriage and sets a not so good example in the society. This could be one of the reasons for the rise of live-in relationships across society. The adultery as a whole strengthens distrust, immorality and bad conduct among society.

Adultery in India has evolved from being a legally punishable offense to a matter of personal choice and autonomy. The decriminalization of adultery was a step toward recognizing individual rights and gender equality. Nevertheless, the impact of adultery on marital relationships remains a subject of profound concern and debate.

In a rapidly changing society, discussions about adultery reflect broader conversations about the nature of marriage, personal autonomy, and the need for laws that are in tune with evolving social norms. The legal framework will continue to adapt to these changing perspectives as India navigates its path toward a more equitable and inclusive society. The spouses in the partnership as well as any children they may have may suffer long-term effects as a result of adultery. Consequences might include despair, tension, emotional inflammation, and anxiety, as well as future behaviour, mediated inhibition, and bereavement. Adultery has been overcome by some families with time and therapy.

As far as cultural opinions about adultery is concerned the act of Marcus aurelieus is famous as he didn�t accepted her as his wife after she committed adultery with other man, he claimed that she had lost her chastity. This somehow shaped the mentality of romans as to adultery. This played a significant role in shaping the founding stone of stoicism as well. It is believed by the Christians this rule demonstrates God's desire for individuals to practise sexual faithfulness inside marriage and abstinence prior to marriage. Adultery is defined as having sexual relations with someone you are not married to. Adultery is forbidden in Christianity.

Christians regard home life and marital relationships as a boon and place a high importance on relationship's permanence. They think that the Church should serve as an example for family life. Christians and jews shape their opinions as with respect to adultery on the basis of Hebrew bible.i.e., Old Testament. According to it the person who has committed will be given capital punishment. It can be concluded that somewhat in less or more cultures adultery is morally and ethically wrong.

Legality vs. Morality Debate

Adultery as defined under Section 497 punishes a person, but the interpretation of the term person is very narrow that it only involves the husband or the other individual who commits it with the wife, as a whole wife sis not included in the term. Supreme Court has recognized sexual relationships as a private and natural right, protected under the constitution. In a democracy, there is assurance of fundamental rights and adultery violates such fundamental rights under the guise of saving matrimonial relationships. The sexual relationship outside the marriage by any of the spouses is the cause of divorce and devastation of matrimonial life but actually, it is not a cause, but a consequence of pre-existing disruption of matrimonial tie.

It should be used as a ground for the divorce between the spouses but including state into the personal matter of spouse and criminalizing someone for making consent-full sexual intercourse with someone outside the marriage was always illegal and unconstitutional. Everyone has the right to privacy and the right to choose under Article 21 of the constitution to make decisions by own without the interference, consent, or permission of the husband.[6]

Long gone are the days when women were considered and treated as a property of a man, when litigation regarding adultery post independence started to emerge the judges gave the same logic. In the matter of Sachindranath v/s Banmala,[7] the learned judge stated that- "Unchastity on the part of a woman and also sexual intercourse by a man with a woman outside wedlock are sins against the ethics of matrimonial morality in this country".

The societal norms of the society are very much dynamic they keep on changing and also it depends upon the cultural aspect as well and the influence one has over another. Because of the increasing acceptance of diverse family structures and individual liberty viewpoints in society, legal definitions and ethical norms may not always align. Some people just consider adultery from a legal standpoint, but others consider the ethical implications of the conduct based on the particulars of the relationship. The state involvement into personal laws is a very debatable point, throughout the time it has been argued that the sate involvement into serious practices which are against the fundamental tenets is necessary.

The element of essentiality and non essentiality of practices concerning to a particular religion is significant, as supreme court in many cases applies this test which is very much logical. But every other day knocking the doors of personal laws somewhat questions the concept of secularism. The other issue which is very much prevalent these days is of uniform civil code a concept introduced by the state, it is a combined effort to govern all the personal laws of citizens under one umbrella.

India is the cradle of different cultures which comprises of citizens which different ethnic groups, linguistic groups with different cuisines, rituals and practices. This also brings a lot of responsibility among citizens to respect each other�s culture. But sometimes a lot of diversity brings problems as well. If the state frames laws which benefit people one ethnicity the other may feel alienated which is evident in the case of Sri Lanka where civil war broke out due to above reasons. In India the supreme court has always been accountable to and ensures transparency and does not let the arbitrariness prevail.

In conclusion, the socio-legal exploration of adultery in the Indian context has revealed a complex interplay between historical traditions, religious scriptures, and evolving constitutional principles. The journey from the ancient roots of adultery being condemned in Hindu scriptures to its inclusion in the Indian Penal Code and subsequent constitutional challenges reflects the dynamic nature of societal norms and legal frameworks.

The landmark case of Joseph Shine v. UOI in 2018 marked a pivotal moment in Indian legal history as the Supreme Court struck down Section 497 of the IPC, deeming it unconstitutional. The ruling not only questioned the arbitrary nature of the law but also highlighted the need to uphold fundamental rights, including equality, under the Constitution. The decision emphasized that the state's role should not be to preserve the proprietary rights of a husband but to ensure gender-neutral justice and protect individual autonomy.

The historical context of adultery laws, rooted in ancient texts and societal norms, underwent scrutiny, leading to a recognition that laws must align with contemporary values and constitutional principles. The sociological analysis of adultery revealed a shift from viewing it as a crime against the sanctity of marriage to recognizing it as a matter of personal choice and autonomy. The decriminalization of adultery was a step towards acknowledging individual rights and promoting gender equality, reflecting the evolving social norms of a democratic society.

The interference of criminal laws into personal laws, as seen in cases like triple talaq, child marriage, dowry prohibition, and the banning of sati-pratha, has been a subject of debate. While some argue that such interventions are necessary to curb unjust practices, others emphasize the importance of respecting diverse cultural practices under the umbrella of a secular state.

The legality versus morality debate surrounding adultery underscores the changing dynamics of societal norms and ethical considerations. The Supreme Court's recognition of sexual relationships as a private and natural right protected under the constitution reflects a commitment to individual autonomy and privacy. The conclusion drawn is that adultery, while potentially leading to the breakdown of marital relationships, should be addressed through civil remedies like divorce rather than criminal punishment.

As India navigates its path toward a more equitable and inclusive society, the legal landscape will continue to adapt to changing perspectives on marriage, personal autonomy, and individual rights. The socio-legal exploration of adultery serves as a microcosm of the broader conversations within the country, reflecting the delicate balance between tradition and progress in a democratic and diverse society.

  1. Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676....
  2. Sowmithri Vishnu v. UOI 1985, available at (Last Visited July 31, 2022).
  3. Ibid.
  4. Shayara Bano v. UOI 2017 available at (Last visited November 9, 2023).
  5. Aulus Gellius Noctes Atticae 10 23 4. See, also, J Zablocki "The image of a Roman family in Noctes Atticae by Aulus Gellius" (1996) 2 Pomoerium at 41-42.
  6. Adultery Was Never A Crime; It Is A Moral Wrong available at (Last visited February 9, 2021).
  7. Sachindranath v. Banmala 1960

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