Adultery was considered as the criminal act in India before 2018. Sec. 497
defines and punishes the act of adultery. Sec. 497 of IPC, 1860 indirectly
protects the right of husband against another man who cohabits with the former's
wife. Earlier, adultery was considered as both immoral and illegal act. This was
the offence where a man files complaint against another man. Female have been
exempted from punishment under sec. 497.
Meaning thereby, neither she can be
prosecuted as an abettor nor as an offender. If we simply read sec. 497 of IPC,
it says that whoever indulges in sexual intercourse (not amounting to rape) with
the person whom the former knows or has reason to believe that the latter is the
wife of another man, without taking husband's consent, is guilty of committing
the offence of adultery. The offender shall be punished with imprisonment
maximum up to 5 years or with fine or both.
It is also mentioned in sec. 497
specifically that wife will not be punished as an abettor. The only option left
with husband is to take divorce from his wife who indulged in the offence of
adultery. Further on, this provides an exception in cases where married man
consummates with a widow, with the husband's consent, unmarried girl or divorced
woman. In such cases, adultery is not said to have committed.
But, in 2018, with the epic judgment given by the highest Court of country in
Joseph Shine case, sec. 497 was eliminated from the Indian Penal Code. This
historical judgment of Supreme Court threw away the 150 years old Adultery law
in India, pronouncing that husband is no more master of his wife. The judgment
was upheld by 5 bench led by CJI Deepak Mishra, who gave his opinion that
adultery law was mainly discriminative in nature as it presumes one party as
victim and another party as accused.
There is no reasonable cause behind doing
such discrimination ends up in infringement of Art. 14 as it created a sense of biasedness between two genders. Further, the court held that adultery empowers
husband arbitrary control over his wife. It is very unethical that if husband
consents the consummation of his wife with some other man, it will not be
considered as adultery, which definitely violates the dignity of women.
But at the same time, decriminalizing the act of adultery had created other
problems. Marriage is considered as sacramental and creates a bond of trust
between the two partners. It is necessary in smooth functioning of society.
Adultery damages a caring and stable environment which is created between the
two married couples. Legalizing adultery is simply promoting extra marital
Having extra- marital affair is not a tradition in India and Indian
society does not accept the practice of adultery and considered it as an immoral
act. Adultery is a most common practice in western world and no doubt we have
tried our level best to adopt westernization and in this, we have been working
against our Indian culture. No doubt, decriminalization of adultery from India
by repealing sec. 497 is one of the landmark judgments and many intellectuals
have welcomed it citing its positive effect but there are some equivalent
negative implications also.
Meaning of Adultery
Adultery derived from the latin term Ďadulterium' which means having extra-
marital affair. It is deemed to be unpleasant in terms of religious, social,
ethical and legal grounds. Adultery is a sexual act where both the parties
indulging have consented. Adultery is a voluntary sexual act done between a
married woman and another married or unmarried man. Adultery was a criminal act
which punishes the third party which indulges in sexual intercourse with a wife
of another man. The crime of adultery is not a crime against woman but a crime
Literally, adultery is an act of sexual intercourse between man with another
women other than his own legally wedded wife. Adultery is not a continuous
offence, so one single act of intercourse is enough to prove that adultery had
been committed. For the offence of adultery, only third party is punished as he
had violated the purity of marriage.
History of Adultery law in India
The origin of adultery laws is too old. The traces of harsh laws against
adultery can be seen in the Greek and Roman laws, where this law was applicable
only in if the females were married. This means that Roman and Greek laws
allowed the sex between man and a slave or unmarried girl. In the backdate, the
Code of Hammurabi (1754 BC), where in the 7th commandment of Old Testament of
Bible, adulterous acts were being cuddled. It was believed that Jesus Christ
detested the adultery and believed that even looking at females with a lustful
feeling is a sin.
Judaism punishes both the male and female who got indulged in
the adulterous act. Initially, the term was used by King of England, Henry VIII,
so that he could get rid of his wife, Catherine Howard. Historically, if we see,
then adultery was a serious public crime in many countries and offenders were
punished with severe punishments like public hanging, mutilation, stone pelting
by public etc.
As the long lasting culture of India does not allow such acts to be illegal as
these are considered to be offences against marriage. Hindu Mythology never
accepted adultery and considered it as a crime both from moral and societal
perspectives. Having an extramarital affair by one spouse definitely refers to
the breaking of trust of another spouse in the marriage and considered it as a
sin. Due to inferiority of women in post vedic eras, Hindu Laws punishes only
adulterous wife or female and not the husbands because of their status was equal
Latter were given warning not to repeat the sin again. Many Indian
manuscripts have also included various provisions punishing the act of adultery.
The first draft by Law Commission of IPC in 1837 does not included adultery as
an offence but, when Lord Macaulay was drafting the law of crimes i.e. Indian
Penal Code, he was in favour of including adultery under Indian Penal Code, and
this ideology of Macaulay was accepted by the legislature and included the
adultery as a serious crime and prescribe punishment for the same.
Law against adultery in India before 2018 judgment
Before the 2018 verdict on decriminalization of adultery, it was considered as
a criminal offence. Sec. 497 of IPC, 1860 contains the provision for punishing
the adultery making it an offence. This means that adultery is a pre-
constitutional law made prior to the commencement of Constitution. In the
20th century, females were considered as inferior to males, and husbands have
the control over their wives.
At that time, there were no rights given to women
which were independent to those of their male partners. Women were believed to
be the private property of their husbands hence the adultery is made an offence
committed against husband and thus only husbands were given the right to
prosecute the third party. Besides being a criminal offence, adultery can also
be taken as a ground of divorce under sec. 13 (1) (i) of Hindu Marriage Act,
Sec. 497 of IPC, 1860 had defined adultery as- Any person who indulges in
voluntary sexual contact with another person knowing or believing her to be the
wife of another person, then, the former will be punished for committing the act
of adultery with imprisonment of not more than 5 years or fine or with both.
The provision under sec. 497 punished only the male offender who commits the
offence of adultery with the wife of another person without latter's consent. It
is very vague that the crime had been committed by both the third party and wife
but only the third party will have to suffer. Even if the male who indulges in
adultery is married, then his wife does not have the same right to prosecute the
female, with whom his husband had done act of consummation. She was only left
with the option to take divorce from her husband.
Basic Elements of sec. 497 of IPC
There were 4 basic elements which must be present to prove that act of
adultery had been committed:
- Act of sexual intercourse must be committed with the wife of another
- Person committing the act of adultery had the knowledge that woman is
the wife of another person.
- The sexual intercourse had committed without the husband's connivance.
- Such sexual intercourse shall be voluntary.
Exception is provided under sec. 497 where it is clearly laid down that wife
will not be prosecuted for the offence of guilty. The wife was neither
punishable as an adulterous party nor as an abettor. The punishment under sec.
497 is limited only up to the third party. Sec. 497 of Ranbir Penal Code
(Jammu-Kashmir's separate law of crimes), before passing of State Reorganization
Act, 2019, penalizes wife also as an abettor.
Adultery as a ground for divorce:
Adultery was not only considered as the
criminal offence but also it affects the personal lives of spouses of the
parties involved in the adulterous act. That's why Hindu personal laws also
provided the right to victim to take divorce from his or her spouse on the
grounds of adultery. Indulging in extra marital affair by any married person is
deemed to be cruelty upon his or her legally wedded partner.
Sec. 13 (1) (i) of Hindu Marriage Act, 1955 says that if after the marriage
solemnized, any person indulges in voluntary sexual intercourse with another
person other than his or her legally wedded spouse, then the aggrieved party
will be liable to take it a s a ground for divorce.
This section signifies that
adultery can be taken as a ground for dissolution of marriage and judicial
separation (under sec. 10 (1) of HMA, 1955). It means that still Hindu marriage
law provides adultery as a ground for taking civil remedies. Even after the
decriminalizing of adultery and repeal of sec. 497 from IPC, 1860, adultery is a
valid ground for taking divorce.
Constitutional Validity of sec. 497 prior to 2018 judgment:
The constitutional validity of sec. 497 was a burning issue and always remained
a matter of doubt. Several pronouncements were made by judiciary validating the
law against adultery.
Yusuf Abdul Aziz V. State of Bombay
(1954 SCR 930)
This was the first case which challenged sec. 497 of IPC, where the issue raised
was that sec. 497 of IPC was unconstitutional as it violated Art. 14, 15 and
21of the Constitution. The Apex Court held that sec. 497 is not ultra vires under Art.
14, 15 and 21of Indian Constitution and it do not discriminate between the two
genders as man is most likely to be the seducer and not the woman. Woman could
only be the sufferer in adulterous act and not the abettor. The court held that
state had power to made special laws favouring women under Art. 15(3) of Indian
Smt.Soumithri Vishnu V. Union of India
(1985 AIR 1618)
It was alleged that sec. 497 must be held unconstitutional for being in
violation of Art. 14 and 15 on ground that it makes a gender differentiation as
it allows the husband of women (indulged in adultery) to sue the third party but
not provide any right to the wife whose husband had indulged in the adultery.
Moreover, this section permits husband to have sexual relations with unmarried,
divorced or widow women. But court rejected the arguments supporting allegations
and held that just like husbands could not file allegations of adultery against
their wives to protect the dignity of wives and purity of marriage, similarly,
wives can also not prosecute their husbands.
V. Revathi V. Union of India
(1988 AIR 835)
The Apex court held that not prosecuting the women is having a social concern
behind it and giving second opportunity to married couples in order to protect
their marital status. Court had observed adultery law as a cover instead of a
Apart from this, 42nd Law Commission Report and Malimath Committee recommended
the need for amendments in adultery law and making it a gender neutral.
Decriminalization of Adultery and reasons behind it:
After a long controversy and debate over the constitutionality of adultery
laws, finally on 27th September 2018, in Joseph Shine case, the Highest Court of
the country had repealed sec. 497 of IPC, 1860, decriminalizing the act of
Joseph Shine V. Union of India
(2018 SCC Online SC 1676)
In this case, Petitioner Joseph shine, a Kerala based NRI filed Public Interest
Litigation through advocate Kaleeswaran Raj, before Supreme Court under Art. 32
of Constitution of India, challenging the constitutional validity of sec. 497
along with sec. 198 (2) of CrPC, 1973 and plead to decriminalize the offence of
adultery. PIL was filed before 3 judge bench led by the then CJI Mr. Dipak
Mishra who transferred the case to constitutional bench consisted of CJI Dipak
Mishra, J.J. A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman and Indu Malhotra.
All the judges gave their separate opinions regarding the issue and at last
ordered to struck down sec. 497 of IPC along with sec. 198(2) of CrPC, 1973, on
the ground that husband will not furthermore be the master of his wife. Sec. 497
prescribes the definition of adultery and its punishment. Sec. 198(2) of CrPC
says that no person apart from husband of wife should be considered as the
victim of the offence under sec. 497 and 498of IPC. The section gave the
exclusive right to husband to bring charges against third party (i.e. his wife's
lover). However, adultery will remain ground for seeking civil remedies like
judicial separation, divorce, etc. the court find adultery laws as arbitrary.
Opinion of the Constitutional Bench
Ex- CJI Mishra had spoken his part and on behalf of J. Khanwilkar that adultery
could not be and should not be considered as a crime, but will definitely be a
valid ground in order is aggrieved husband or wife desires to divorce his or her
spouse who indulged in adultery. CJI opined that if due to any legislation,
subordination of any gender will cause then definitely, it would be
unconstitutional in eyes of law.
According to J. Nariman, adultery laws have
been violating equality and living a dignified life rights under Art. 14, 15 and
21 of Indian Constitution. Now, we have to finish the old existing custom of
husband being ruler and wife being victim. J. Chandrachud opined that
decriminalizing of adultery can be a step forward to reduce the effect of
Patriarchy system and was in favour of gender equality.
Further on, review petition had been filed before Supreme Court on 25th June,
2020, 5 judge review bench led by current CJI Sharad A. Bobde. This Review Bench
had also upheld the 2018 judgment, giving reason that there is no reasonable
ground on which the review could be done and no solid proof in support of claims
(made in review petition) that decriminalization of adultery will lead to
disorder in sexual morality.
Positive Implications of Decriminalizing Adultery
Finally, the country's highest court had taken a historic step and scrapped out
150 year old law. Overall, SC had acknowledged the lackness of sec. 497 of IPC
that it restricts the freedom of woman and her private life and is gender biased
law. It had been a clear violation of her right to life. First of all, it makes
a sense that women were the property of men.
With whom a woman should indulge in
sexual intercourse will be decided by her husband. Meaning thereby, if her
husband approves or consented to his wife's relationship with third party, it
would not be considered as adultery which was a matter of concern which needed
to be changed.
Sec. 497 of IPC read with sec. 198(2) of CrPC was the perfect
example of arbitrariness of patriarchy system. The law discriminates between
both the genders as in this offence where both the parties shave consented, one
became the victim and other became the offender. Hence the law is in violation
of Art. 14, 15 and 21.
Unlike the rights were given to husband of married woman to sue the male
offender under sec. 497 (IPC) and 198 (2) of CrPC, adultery law restricts the
wife of adulterer spouse not to action against another married woman (consented
party in adulterous act). This is one step towards women's sexual autonomy
should be given respect and to abolish gender stereotype law. Moreover, the law
authorized the husband to put all the blame for his marital breakdown to an
he reason behind that why adultery besides of decriminalization had
existing in the law books as a ground to take divorce is that it is more
necessary for the married couples to know where is the lackness in their
marriage and not to blame an outsider for the breakdown of their marriage.
Marriage is based on trust and once the trust has been broken, the couples could
take divorce with mutual consent.
There are equivalent negative implications of decriminalizing adultery.
According to some critics, criminalization of adultery is necessary for the
smooth running of society. The act of adultery is not acceptable in our Indian
culture and hence considered as an immoral act by society. In order to adopt
western culture, we will be destroying our traditional institution of marriage.
The adultery is legalized in western countries and due to this divorce rates are
We are also in the same race and in order to stop following the
same trend, it is necessary not to promote extra marital affairs and thus
adultery should be made a punishable offence. The adulterous act would
definitely going to encourage extra- marital affairs which will ultimately lead
to high level family conflicts.
Secondly, it would result in increased number of
divorce cases which would ultimately effect the nourishment of child and his or
her future. Sarcastic comments of society to the spouses of parties indulged in
adultery, could even lead to increase in suicidal rates. This means that
legalizing of adultery will not only result into breaking of matrimonial
sanctity but also loss of an innocent life. Decriminalizing of adultery will not
be a gender neutral law instead of that it will lead to exploitation of sanctity
At last, I would like to conclude that decriminalizing of adultery is one of the
historic judgments and may be accepted by many, but according to me it is one of
the hysterical judgments in the history of Indian judiciary. Although the
verdict had been pronounced with the view to insert positive implications, but
somewhere, court had neglected its adverse effect.
Courts are expected to
maintain the sacred bond of marriage between the couples but here, court had
came forward with such a decision that itself increases a hope that the marriage
will be broke out. The main objective of decriminalizing of adultery was to
remove gender biased law and that husband could no more control the wife's
autonomy and right of life.
But this will cause a negative impact by raise in
number of divorces. Even the 42nd Law Commission Report had recommended making
of certain amendments in sec. 497 of IPC instead of repealing it completely. I
also had similar views that the Parliament should make certain modifications
instead of legalizing the adultery as a whole.
This will curb the sanctity of
marriage. I support the opinion of Supreme Court that wife should not be
considered as a property of husband and thus he should not have restricts his
wife's sexual autonomy. Legislature should make certain changes in sec. 497 to
make it a gender neutral law in real sense. Sec. 198(2) recognizes the husband
of the adulteress, as the person aggrieved and had rights to prosecute against
the adulterer under sec. 497 of IPC, but not the wife of adulterer as aggrieved
Criminalization of adultery earlier had created a strong deterrence
against commission of adultery but now decriminalization had eliminated this
fear and led the external factors to impact the marriage institution. This had
vast impact on children's future too as for better development of children, the
most important thing required is both the parents and healthy environment which
will not be there after the divorce.
Moreover, this will have a very bad effect
on the minds of the children that either of their parents were having an affair
elsewhere. Our legal system should not decide the one's sexual autonomy but must
lay down regulations regarding the mechanism of separation in case if one of the
couples had violated the purity of marriage. Thus, Parliament needs to have a
look in the adultery verdict and correct the damages done by the latter.