In our country if we look at the institution of marriage then we'll realize
that morality is attached to it. Loyalty is one of the fundamental pillars of
this institution. Spouse should be loyal to each other. If after marriage spouse
have multiple sexual partners then that loyalty is destroyed. Morality is inner
Problem arises when one partner does adultery. Adultery is when a partner has
sexual intercourse with another person and the third person has full knowledge
that the woman is married then in that case husband can file case against the
third person but not against his wife. If we reverse the case, if the husband
have sexual intercourse with another women then the wife can't file complain
either against the husband or the women. So we can see that the law is Pro-Man.
Earlier the law of adultery in India was dealt within Section 497 of the
158-year-old IPC says:
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 offence of
rape, is guilty of the offence of adultery.
The offence of adultery entailed a maximum punishment of five years, or with
fine, or both. Section 198(2) the criminal procedure code allowed a husband to
bring charges against the man with whom the wife has committed adultery. It gave
exclusive right to the husband to file case against the third person.
A five-judge Constitution bench was unanimous in holding Section 497 of the
Indian Penal Code, dealing with the offences of adultery, as unconstitutional
and struck down the penal provision.
The bench comprising Chief Justice DipakMisra and Justices RF Nariman,A M
Khanwilkar, DY Chandrachud and Indu Malhotra held that Section 497 is
unconstitutional. The CJI and Justice Khanwilkar said:
We declare Section 497 IPC and Section 198 of CRPC dealing with prosecution
of offences against marriage as unconstitutional
Background Of Adultery
The Common Law has made distinction between illegitimate sexual relation of a
married woman and that of a married man and only the women were considered to be
involved in adultery. Therefore, adultery was defined as having a sexual
intercourse with 'another man's wife'. A married man's sexual intercourse with a
single woman was not considered as adultery.
Justice Rohinton F Nariman said almost all ancient civilisations punished the
sin of adultery and Hammurabi's Code of 1754 BC prescribed death by drowning as
punishment for the offence, be it by the wife or the husband.
In India, too, Manusmriti provided for punishment for those addicted to
intercourse with other men's wives by punishment which cause terror, followed
, Justice Nariman said.
Justice Nariman said in 17th century England, adultery was only a ground for
divorce but became a capital offence in Cromwell's puritanical England in 1650,
which was nullified as soon as King Charles II came back to restore monarchy. He
said in the first draft of IPC by Lord Macaulay, he had refused to make adultery
a penal offence.
In Christianity, we find adultery being condemned as immoral and a sin for both
men and women, as is evidenced by St Paul's letter to the Corinthians. Jesus
himself stated that a man incurs sin the moment he looks at a woman with lustful
intent. However, when it came to punishing a woman for adultery, by stoning to
death in accordance with the ancient Jewish law, Jesus uttered the famous words
let him who has not sinned cast the first stone, he added.
Narrating the adultery scenario in India, Justice Nariman said:
The background in which this provision was enacted now needs to be stated. In
1860, when the Penal Code was enacted, the vast majority of the population in
this country, namely Hindus, had no law of divorce as marriage was considered to
be a sacrament. Equally, a Hindu man could marry any number of women until 1955.
It is, therefore, not far to see as to why a married man having sexual
intercourse with an unmarried woman was not the subject matter of the offence.
Since adultery did not exist as a ground in divorce law, there being no divorce
law, and since a man could marry any number of wives among Hindus, it was clear
that there was no sense in punishing a married man in having sex with an
unmarried woman as he could easily marry her at a subsequent point in time.
Two of the fundamental props or bases of this archaic law have since gone. Post
1955-1956, with the advent of the Hindu Code
, so to speak, a Hindu man
can marry only one wife, and adultery has been made a ground for divorce in
In Common law, although the Roman law concept of adultery may have been
influential, adultery was not considered as a crime. However, a husband who
wanted a divorce through Parliament had to establish a criminal action first
based on his wife's adultery. The civil suit for damages was only accepted from
a husband. A wife could not bring suit for damages against an adulterous woman
because of her illicit intercourse with her husband.
Joseph Shine V. Union Of India
In October 2017, Joseph shine filed public interest litigation under article 32
of the constitution. The petition intended to challenge the constitutional
validity of adultery under section 497 of IPC read with section 198(2) of
CrPC. This case is a very important landmark case. The date of judgment is 27
September 2018, when the constitutional bench of honorable Supreme Court Struck
down 158 year old Section 497 of IPC which criminalizes the adultery.
The issues were, whether Section 497 of IPC and 198(2) CrPC are
unconstitutional, illegal and violative of fundamental rights?
The arguments put before Court were that the background in which section 497 was
inserted is no more relevant in present. Section 497 of IPC and 198(2) of CrPC
both discriminate against women and thereby violates article 14, 15 and 21.
It violates Article 14 by not granting equality before law as the women couldn't
file complain against the another women or her husband. It violated Article 15
as well as it oppressesthe right of women and is not a beneficial legislation.
It violates Article 21 as right to privacy includes the right of two adults to
enter into a sexual relationship outside marriage. The said provision is also
hit by the ratio laid down in Justice K.S Puttaswamy (Retd. ) v. Union of
India and Ors
,. Since sexual privacy is an integral part of 'right to
privacy.' Section 198 (2) of CrPC is also violative of Article 14, 15 and 21 of
Constitution of India.
And it excludes women from prosecuting anyone engaging in adultery.
The judgment has put forward a good initiative as it struck down section 497 of
IPC and section 198(2) of CrPC as both the sections are based on discriminative
classification against women.
The provision is being discriminative in two ways:
- Firstly it does not give woman the right to prosecute an adulterous
- Secondly it does not punish a woman in adultery not even as an
The court in this landmark judgment however clarified that adultery will be a
ground for divorce. It was also stated that if an act of adultery leads the
aggrieved spouse to suicide, the adulterous partner could be prosecuted for
abetment of suicide under section 306 IPC.'
The Supreme Court unanimously struck down Section 497 of Indian penal code that
makes adultery a punishable offence. Court's stand was that the law was
unconstitutional and as it violates Article 21 (Right to life and personal
liberty) and Article 14 (Right to equality).
In conclusion one can say that the repealed sections 497 of IPC and 198(2) of
CrPC were based on discriminative classification. When we look at the background
in which the provisions were inserted, it was intended to ameliorate the
condition of women in society. Earlier the women were deprived of many benefits
but our constitution has provided for equality before law and it talks about
equality of opportunity also. This section was against the spirit of the out
constitution and therefore court held it unconstitutional.
The judgment was criticized because it would affect the stability of institution
of marriage in our society but the court has clearly pointed out that when we
say that morality is attached to marriage then we must understand that morality
in marriage is a private matter of spouse and the state mustnt interfere in it.
Also, when two people enter into sexual intercourse with their consent then
there can be no ground to file case in such matter. The remedy is available to
aggrieved spouse to seek divorce.
Supreme Court has wisely decriminalized section 497 as it is a matter of private
morality and state should not interfere in it. Section 497 to be scrapped on
these grounds and pointed out that “using laws to enforce faithfulness in
marriage is as absurd as making it legally mandatory for husband and wife to
love each other”.
The Judgment is good initiative as it has declared
adultery as unconstitutional and denied the burden of patriarchy. The Britishers
introduced the Indian Penal Code. In their own country they repealed this
provision in 1857.
The Britishers introduced the Indian Penal Code. In their own country they
repealed this provision in 1857. Justice Chandrachuds judgment in particular is
clear that denying sexual autonomy to women is unconstitutional and
unacceptable. We hope the government will now show good sense in accepting the
verdict and not seek a review.
Finally, the judgment is actually a welfare decision and contributes to the
welfare of women in our Indian society dominated by patriarchal rules.
Award Winning Article is Written By: Sapna Kumari
Authentication No: AG024335288953-30-820