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The Constitutional validity of Section 497 of IPC and Section 198(2) of CrPC

Adultery was the symptom for broken marriages not the reason for broken marriages. Many people do not know about Adultery and its law. Adultery is defined as a voluntary sexual intercourse by a married person with a partner other than his/her spouse. The legal definition of Adultery varies in different jurisdictions and statutes. Adultery in India is a criminal offence and hence there are provisions related to Adultery Indian Penal Code, 1860. Section 497.

Now I am going to tell about the history and the previous judgment related to Adultery in which manner this concept came in to existence and people using this culture in what manner. In according to religion the punishment of committing Adultery is different. after this the impact of this law in the society and also after decriminalizing the law in the society the two criteria are not so grateful for society, and lastly the latest judgment of it that is good for society or not by reading this you will get the knowledge.

An institution like marriage[1] heavily relies on commitment, loyalty and faithfulness of partners. Among all the religions and all the countries, marriage has been given a sacred position. Therefore, if either of the spouses commits Adultery, they are not only breaking the promises that were made to each other but also ruining the sanctity of the marriage.

The offence of Adultery previously, held the man who committed the act of Adultery guilty and stated that the married woman was a helpless victim of Adultery and she was free from "criminal responsibility". It also stated that the man committing the offence of Adultery was unfaithful to the married man and he is solely responsible for sexual liaison.

However, after Joseph Shine, a non-resident Keralite, filed Public Interest Litigation under Article 32[2] of the Constitution of India challenging the constitutionality of the offence of Adultery, the apex court struck down the offence of Adultery as it violates the basic dignity of women and treats women as the personal property of the husband.

Though the act of Adultery is no longer a criminal offence but it is still a ground for divorce in both Hindu and Muslim personal law and therefore, the objective of this article is to legally educate the spouse about the legal remedies that are available to him or her and the availability of legal procedures in India which could be taken against his or her spouse if they commit the offence of Adultery.

It talks about the definition of Adultery, the collection of evidence against the spouse, the legal procedure to be followed, hiring a lawyer and presenting the case before the court in case the couple wants to opt for divorce and terminate their marriage. In this situation, the burden of proof relies heavily on the spouse who is seeking divorce on the grounds that his or her spouse has committed the act of Adultery.

Meaning of Adultery

The word Adultery is derived from the Latin word 'Adulterium'[1] which is termed as the extramarital sex and is considered objectionable on social, religious, moral, or legal grounds. Merriam-Webster dictionary defined Adultery as:
Voluntary sexual intercourse between a married person and someone other than that person's current spouse or partner.

Under Section 497 of the Indian Penal Code, 1860 the act of committing Adultery is criminalized, it states that any person who has sexual intercourse with a married woman without the consent or connivance of her spouse, such act amounts to the offence of Adultery. The punishment for committing Adultery may extend up to imprisonment for five years, or with fine, or both.
  • Adultery according to religion
    India is a country known for its unity in diversity. Our country is a secular country where sentiments of all the religions are equally respected. Every religion follows its own views and objectives. However, in the matter of Adultery more or less every religion is highly critical. Different religions have different views on Adultery but the core view remains the same. In every religion, Adultery is treated as a crime. However, the forms of punishment may vary among religions. It is treated as a delinquent act as it violates the religious sentiment of every religion.

    Since time immemorial it is considered to be a sin not only on the religious or legal ground but on the spiritual ground as well.
  • Traditional Hindu views regarding Adultery are that it creates disorder in the society and degradation of family value. In Hinduism, marriage is a sacrament, believed to be for seven consequent births, where both the spouses are supposed to be loyal to each other. They are believed not to have a sexual relationship other than their spouse.

    � According to Islam, Adultery, rape, and fornication which are unlawful are considered as Zina. According to the Quran, Zina is huded [2]crime for what punishments are fixed by god. The punishments range from amputation of hands and crucifixion to public lashing to public stoning to death. In particular to Adultery, according to Quran, an adulterous person should be stoned to death.
  • According to the Bible, Adultery as a sin deserving death for both men and women. Adultery is treated as unethical and immoral and evil for the society.
  • According to Buddhism, sexual intercourse outside wedlock is a sin that increases sufferings. In Buddhism, Adultery is the 3rd of the five fundamental precepts that one must refrain.
  • According to Judaism, which is one of the ancient religions, there is a provision of the death penalty for both adulterer and adulteress.

Constitutional validity of Section 497 of IPC and Section 198(2) of CrPC [1]

Indian Penal Code 1860

Section 497-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 the offence of 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 a case, the wife shall not be punishable as an abettor.

Criminal Procedure Code 1973

Section 198-Prosecution for offences against marriage:
  1. No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence.
  2. For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:
Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

Section 497 violates Articles 14 [Equality before law]

Section 497 treats men and women unequally, as women are not subject to prosecution for Adultery, and women cannot prosecute their husbands for Adultery. Additionally, if there is "consent or connivance" of the husband of a woman who has committed Adultery, no offence can be established. The section lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary and therefore violative of Article 14.

Section 198(2) CrPC also violates Article 14 [Equality before law]

Section 198(2) CrPC des not consider the wife of the adulterer as an aggrieved person. The rationale of the provision suffers from the absence of logicality of approach and therefore it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.

Violation of Article 15(1) [Prohibition of discrimination]

Article 15(1) [1]prohibits the State from discriminating on grounds only of sex. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, the offence of Adultery discriminates between a married man and a married woman to her detriment on the ground of sex only. The provision is discriminatory and therefore, violative of Article 15(1).

Violation of dignity of woman and Article 21 [Right to life]

Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the essential dignity which a woman is entitled to have by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women.

Besides, the emphasis on the element of connivance or consent of the husband tantamount to the subordination of women. Therefore, the same offends Article 21.

Violation of right to privacy and right to choose

This Court has recognized sexual privacy as a natural right, protected under the Constitution. Sharing of physical intimacies is a reflection of choice.[2] To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right.

Opposed to "constitutional morality"

It is not the common morality of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires enforcement of the constitutional guarantees of equality before the law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497.

Breakdown of marriage

In many cases, a sexual relationship by one of the spouses outside of the marriage may lead to the breakdown of marriage. But often, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie.

History and judgment of Adultery

The enactment of Adultery law dates back to colonial times when the Indian Penal Code was enacted in 1860. The Indian Penal Code criminalised Adultery under Section 497. However, Adultery was not provided as a ground for divorce until the enactment of Hindu Marriage Act in 1955. There were two reasons for the absence of Adultery as a ground for divorce:

Before the enactment of the Hindu Marriage Act of 1955, [1]Hindus did not have any provision for divorce since marriage was considered a sacrament in ancient times. Since there was no law for divorce, the provision for Adultery as a ground for divorce was not present.

Another reason was that in ancient times, a Hindu[2] man was allowed to marry any number of women and indulge in sexual intercourse with them. Therefore, a provision for punishing the husband for indulging in sexual intercourse was pointless since the man could eventually marry the woman with whom he had sexual relations.

However, things changed after the advent of Hindu Marriage Code in 1955 under which a Hindu man could marry only one woman. Therefore, in order to protect the institution of marriage and prevent its breakdown, Adultery was enacted as a ground for divorce. This would deter the man from indulging in sexual relations with the woman other than his wife.
It is, however, critical to note that even after the announcement of Adultery as a ground for divorce; it was still criminalised[3] under Section 497 of IPC[4].

It was for this reason that criminalisation of Adultery was questioned from time to time by various women rights activists and lawyers. There are three cases in which Adultery law was challenged in the Court.
  1. Previous Judgments on Adultery

    • Yusuf Aziz V. State of Bombay 1954 [1]

      This was the first case in which the Adultery law was challenged in 1951. It was challenged for being violative of Fundamental Rights under Articles 14 and 15 of the Constitution. The petitioners contended that Section 497 of IPC discriminated against men by not penalising women in an adulterous relationship. The court held that Section 497 of IPC is constitutionally valid under Article 15(3) of the Indian Constitution.

      The court asserted that the rationale behind introducing Adultery law was that in most cases, it is the woman who is the victim and hence, cannot be a perpetrator. However, the irony in the case was that although the court considered women as the victims in cases of Adultery, they did not provide them with the right to file a complaint.
    • Sowmithri Vishnu V. Union of India 1985 [2]

      Even after the judgment, in this case, the ambiguity around the validity of Adultery law could not be resolved. The Supreme Court held that in order to protect the sanctity of marriage, both the husband and the wife should not be allowed to file a complaint against each other in case of an adulterous relationship. However, the court retained the criminalization of marriage under IPC.

      The court also held that if an unmarried woman indulges in a sexual relationship with a married man, she would not be held liable for Adultery and if an unmarried man enters into a sexual relationship with a married woman, then that man would be held liable for punishment under Section 497 of IPC.
    • V Revathy v. Union of India 1988 [3]

      The court in this case held that the rationale behind the non-prosecution of women in cases of Adultery was to protect the sanctity of a marriage and in turn, promoted a social good. It was "a shield rather than a sword" and it gave the couples a chance to "make up". Therefore, the court held that Adultery law does not infringe on anybody's constitutional rights and hence, it was completely valid.
  2. Decriminalization of Adultery

    The Supreme Court's judgment in the present case:
    The constitutionality of Section 497 of IPC was challenged in the case of Joseph Shine v. Union of India, 2018[1]. In this case, the petitioners contended that criminal law should be used only as the last method of social control and it should not be used to check or control private morality or immorality. Centre, on the other hand, argued that Adultery is an intentional action which impinges on the sexual fidelity and sanctity of marriage. It is an action knowingly and willingly done with the full knowledge that it would hurt the family, the children and the spouse.

    After hearing both the sides, the Supreme Court in a Bench headed by the then Chief Justice of India, Deepak Misra, pronounced that Section 497 of the Indian Penal Code is unconstitutional and hence, struck it down. The court held that the provision was based on gender stereotypes and hence violated Article 14 (equal protection of laws) and Article 15 (non-discrimination on grounds of sex) of the Indian Constitution.

    The court also struck down Section 198 (2) of the Criminal Procedure Code which allowed a husband to bring charges against the man with whom his wife has committed Adultery.[2] The Court also held that for Adultery to be termed as a criminal offence, it is essential that one of the spouses committed suicide in the course of the events. In such a case, the other spouse would be made liable for abatement to suicide under Section 306 of IPC.

    Chief Justice Deepak Misra, while pronouncing the judgement, observed that any provision asserting husband as the master of the wife and treating women with inequality cannot be considered constitutional. Responding to the question of consent, CJI Misra observed that in case of absence of consent of the married woman, it amounts to rape.

    On the contrary, if the sexual intercourse is done with the consent of both the adults, then the act fails to qualify the test of an offence. Justice Indu Malhotra, while reading her judgment, observed that Section 497 "institutionalizes discrimination" and therefore, such a provision needs to be struck down.

    The Supreme Court on the question of passing a judgement for a new, gender-neutral Adultery offence, remarked that subjecting interpersonal relationships to the severity of criminal law would amount to an intrusion into the right to privacy guaranteed under [3]Article 21 of the Indian Constitution.

    The decision of the Supreme Court was lauded across horizons from lawyers to activists welcoming the decision of striking down the antiquated law treating women as the properties of their husbands. According to various women activists the provision for criminalisation of Adultery was evident of unequal treatment to women and was against her status as an individual

The judgment in this case is not only crucial for the protection of women's marital rights but also for the further implications it may have. All the judges agreed that a woman has the right to individual choice, bodily integrity and personal autonomy in the context of family and home. The judgment to decriminalize Adultery calls into question the constitutionality of two other prominent laws infringing women's rights.

One of them is the restitution of conjugal rights which forces one of the spouses, who has left the other house, to return against her will and the other is the exception of marital rape in which rape committed within a marriage does not amount to rape under criminal law.

And if any aggrieved spouse commits suicide because of life partner's adulterous relation, then if evidence is produced, it could be treated as an abetment to suicide. "Mere Adultery can't be a crime, unless it attracts the scope of Section 306[1]

Although marriage is a both a civil contract and a sacrament, it is not a standard form of contract. Therefore, it should be up to the discretion of the husband and wife as to whether they want to penalize the other spouse in case they enter into an adulterous relationship or not. It is unwarranted to make provisions in penal law to regulate a personal and private contract like Marriage.

Even the presence of Adultery as a ground for divorce is to reach a settlement and not prosecute the person for that offence since prosecution cannot be an effective remedy for the aggrieved against whom Adultery has been committed. Due to this, most western countries have decriminalized Adultery and even in countries where it still exists, prosecution is rarely the preferred path.

During the time when Adultery was termed as an offence under IPC, the actions of the men entering into sexual relationships with married women were socially acceptable due to which the married women were left devoid of love and affection. Also, there was absence of codified personal and matrimonial laws during that time. It was due to this reason that the act of Adultery was criminalized in order to protect the interests of the women. Even though the provision was for protecting the interest of the women, they were not given a right to file a complaint against her adulterous husband.

It was only in 1955 that Hindu Marriage Act[2] came into existence and mentioned Adultery as a ground for divorce. With the passage of time and the prevalence of monogamy, women have begun to establish their independent identities in the society and are no longer considered as chattels of their husbands. Therefore, the need to criminalize Adultery was slowly turning redundant and it was defeating the purpose for which it was criminalized. Hence, the decision of the Supreme Court of India to decriminalise Adultery is laudable and will form the basis for upholding women's bodily integrity and independence in the future.

Opinion: So during research I got to know the proper meaning of Adultery in IPC, before the judgment of joshep's case it was really unconstitutional, and the IPC was so ancient so we can amend whatever violative our fundamental rights. After decriminalizing Adultery now its protect the equality. But think about it if the section 497 offence for both men and women.

That scenario will also same because we can't filed a suit against any spouse we only file a suit against the third person. May be the third person is innocent or he or she have not he knowledge of the marriage status, there are many things which is very controversial but I think there must be an amendment in IPC which will be offence for Adultery, If any spouse commit Adultery then he or she will be punish under law not the third person.

  1. AIR 1954 SC 321 (1985
  2. SCC 72 (2012) 1 SCC 358
  4. supreme-court-struck-Adultery-law-section-497-ipc
  5.  Article 21 of the Indian Constitution.
  6. 1954 AIR 321, 1954 SCR 930
  7. 1985 AIR 1618, 1985 SCR Supl. (1) 741
  8. 1988 AIR 835, 1988 SCR (3) 73
  9. Art 15 COI p.25.p89
  10. world/2018/sep/27
  11. T.O.I Adultery art. 86 [2] 14
  12. Section 497 of IPC

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