INTRODUCTION

The Indian penal code,1860 have certain legal provisions that might seem to be
unconstitutional but are followed by a range of judicial pronouncements still in favour of
them one such example is section 497 of the IPC which made adultery a criminal offence the
term adultery has its origin from the Latin word adulterium wherein, ad stands for towards
and alter means other1. In India marriages are considered to be sacred to the extent that it is
believed that marriages are made in heaven. Though India has developed a lot after the
codification of punishment of adultery but yet the penal provisions of adultery remained as it
is thereby breaking up the principal of law is ever changing therefore looking at today’s
scenario there occurs a need for revisiting the provision and making them more gender
neutral but the question that raises is how can such an change be made the researcher has
briefly dealt with the current adultery provisions as given under the IPC 1860 and has given
recommendations regarding the changes to be made in the law by trying to analyse why and
on what basis the law is drafted as it is now.

As already stated adultery is punishable in India as per the IPC 1860 wherein the section
punishes only the men having sexual intercourse with the wives of another men the 42nd
report of the law commission had already recommended to bring about the change and even
including women also punishable for adultery2.on the basis of which even the central
government had taken views of thirty states in India that there have been no changes for now.

2. ANALYSING THE LAW OF ADULTERY IN INDIA

If we look at the legal definition of adultery in India as given under section 497 as:

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

1
See, Jovan Payes, “Adultery and the Old Testament”, http://biblicalfaith.wordpress.com/2008/06/12/adultery
and-the-old-testament/ ; see also, Purkayastha, Bandana, et al. “The Study of Gender in India: A Partial
Review.” Gender and Society, vol. 17, no. 4, 2003, pp. 503–524. JSTOR, JSTOR,
www.jstor.org/stable/3594655. Purkayastha, Bandana, et al. “The Study of Gender in India: A Partial Review.”
Gender and Society, vol. 17, no. 4, 2003, pp. 503–524. JSTOR, JSTOR, www.jstor.org/stable/3594655.
2
42nd Law Commission of India, Report number: 42 326-327 (1972), accessed at
http://lawcommissionofindia.nic.in/1-50/Report42.pdf
five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor3.

By analysing the section, it is clear that the offence is committed only by a man who have
without the consent of the women’s husband had sexual intercourse her there is no
requirement of the women is married or not this was held in Samraj Nadar v. Abraham
Nadachi4 as a married woman in India is considered to be the property of the husband and
hence the act of adultery is considered to be an encroachment to the right of the husband over
his married wife. But the fact that the law punishing adultery in India is gender biased cannot
be overlooked as it is clear that the women cannot be held for it. Therefore, the researcher
after analysing this section feels that the purpose behind drafting the section in the present
way is on the firm belief that there should be no interference in a sacred relation like
marriage5

2.1 THE REQUIREMENTS OF ADULTERY

The essential requirements of adultery are there must sexual intercourse mainly with the
women’s consent and it is sufficient that there is penetration for the same6, also the men
should be aware of the fact that the women is married legally with another man there should
be sufficient knowledge of the same and the husband shouldn’t have consented the other
person to have sex with his wife and has made a complaint under section 198 of CrPC
regarding it7. The adulteress wife is completely free from the criminal charges and is not
punished the reason behind such an exemption is based on the fact a woman would never go
for an act of adultery by her own consent and hence the other party would have misled her
and she being a helpless victim of adultery8

3. THE CONSTITUTIONAL VALIDITY OF SECTION 497

There have been many instances wherein the section has been constitutionally challenged one
of the most famous case is Mr.Yusaf Abdul Aziz v. State of Bombay9 which challenged the

3
See,Sec.497 of the Indian Penal Code, 1980
4
AIR 1970 Mad.434,437
5
See, Re Rathna Padayachi, AIR 1917 Mad 220; V. Revathi v Union of India, AIR 1988 SC 835; See also,
Ministry of Home Affairs, Government of India, Committee on Reforms of Criminal Justice System 190 (2003),
http://www.mumbaipolice.org/%5Carchives_report%5Cmalimath%20committee%20report.pdf
6
Hari Singh Gour, 4 Penal Law of India (Law Publishers (India) 11th ed 2009) 4654-55 See also, Section 376,
Explanation of Indian Penal Code, 1860
7
Sec. 198 of the Code of Criminal Procedure, see also, Mahesh Patel vs State Of Chhattisgarh on 11 January,
2011, Criminal Appeal No 01 of 2005
8
Nurul Haq Bahadur v Bibi Sakina and others 2011 STPL(Web) 1023 SC
9
validity of the section on the basis of Article 14 and 15 of the constitution though the court
upheld the constitutional validity of the provision it is important to note the view given by
C.J.,Chagla who opined that reason behind upholding the validity of the section was on the
point that women in a country like India are oppressed and hence their situation cannot be
compared to that of a men. The researcher from this judgement agrees that in a patriarchal
society in India wherein women have been oppressed since ages the fact that their situation is
incomparable to the dominant male is somewhere logical, but drafting a section on the sole
basis of these factual assumptions is not a valid reason as the present situation of India is far
different as it was before 150 years ,the time when section 497 was enacted hence the
researcher feels that the time has come where there needs to be changes made to the present
law on adultery.

It can also be analysed from the above discussion that the judiciary feels that there is no
possibility to commit adultery or file a case against her husband or another women if she
finds her husband cheating now this brings us to a conclusion that there can be no case
brought against a married women who would have sexual intercourse with multiple men but
all these men can be criminally charged by the husband of such married women but this case
is not the same where a husband sleeps with multiple women the wife can neither file a case
against the husband or the adulteress the only remedy married women wold have against the
men who committed adultery is file for a divorce under section 13(1) of The Indian Marriage
Act10 but again this remedy is not sufficient enough as not every women would be wanting a
divorce and may end up living with the husband with no other go. Therefore, it is clear that in
Indian law a woman cannot commit adultery or cannot file a case against another woman.
Most countries do not have adultery as a criminal offence11 but hold it as a ground for divorce
but in India there is a mix where adultery is also criminalised and a ground for divorce this is
because the ingrained cultural ethics based on the patriarchal views of the Indian society that
marriage is sacred but there has been a serious debate going on for making the law gender
neutral while some want to decriminalise adultery as it is an individual’s freedom.

4. LEGAL REFORMS A STEP AHEAD TO SOCIAL TRANSFORMATION

There was a Report of the committee on the status of women in India by which is was said
that only law could change the social set up of India and make the country a gender neutral

10
See, sec. 13 (1) of the Hindu Marriage Act,
11
Ruth A. Miller, The Limits Of Bodily Integrity: Abortion, Adultery, And Rape Legislation In Comparative
Perspective at 122-23 (Ashgate 2007)
one in the area it needs12. The report suggested that to have a gender just society we need a
reconstruction of the social background and law is the only way to achieve it. On the basis of
appearances we can easily distinguish men and women. As there is a general perception that
women are weak and emotional at one side and men are rational and the stronger ones on the
other. But these differences is not just based on society but also on the time what was 100
years back a valid law might not be the same due to the change of time and therefore might
need reformation. If we go by the principle of the church on the law relating to marriage
which said marriage is based on the consent and promises leading to sexual intercourse and
hence making the marriage indisslovable and any activity outside marriage as adultery13. If
we look at the adultery law it is not just unfavourable to women but also to the men as in the
developing country like India where the situation is no longer the same there and there are
chances of a women committing adultery wilfully which is not the right thing. If we look at
gender it mostly deals with female issues and highlights them even after the fact that the
status of women is no longer the same as it was in the 16th century and the male position
remain unchanged, religion also plays a role in such social transformations but there is
always a image of ideal female which remains unchanged and leads these laws to prevail
even after a passage of 150 years.

5. INDIAN JUDICIARY PATHWAY JUSTIFYING THE LAW OF ADULTERY

In Sowmithri Vishnu v. Union of India14 the court clearly held it ot be not voilative of Art. 14
and 15 of the Indian constitution on the basis that a women is not a instigator but a victim
also on the question that the law promotes men having a relationship with unmarried women
the court said that it doesn’t mean that married men are allowed to have illicit relationships
but it is to show that he institution of marriage needs to be protected and hence makes that
alone punishable.

The women whose husband had committed adultery cannot file a case against her own
husband as given under sec. 198 (1) read with 198 (2) when this was challenged in the case of
Revathi v. Union of India15 the court said this is not a discrimination but a reverse
discrimination as in when a husband cannot sue his wife for being a adulteress similarly she

12
Towards Equality: Report of the Committee on the Status of Women in India (1975), P. 102, n. 2.
13
Karras, Ruth Mazo. "The Regulation of Sexuality in the Late Middle Ages: England Ans France." Speculum
86.4 (2011): 1010-039. Cambridge Journals Online. 7 Oct. 2011.Web.14 Apr. 2013. .see also Lucie
Melichárková Marriage and Adultery in Geoffrey Chaucer’s The Canterbury Tales from the Gender Point of
Viewhttps://is.muni.cz/th/266849/pedf_b/ChaucerGender.pdf
14
15
cannot do the same if the husband had committed an extra- marital affair with another
married women. The researcher from this feels that the court has taken a very legitimate
reasoning in these cases and also tried to protect the cultural ethics of Indian society.

The Defence under section 15 (3)

In the constitutional debates there was a clear rule that there should be no sex based
discrimination16 but laws like 497 seem to deviate from this approach by quoting Art.15(3) a
protective discrimination but the researcher thinks that there is not disability that makes the
granting protection to a adulterer and through various judgments the court has said that a
women is not capable of adultery but there is no firm basis to support the same.

6. THE 42ND LAW COMISSIOM REPORT AND ITS SUGGESTIONS

The Law Commission of India in its 42nd report suggested that section 497 should not be
removed from the code, but it recommended that both the man and should be made guilty as
there is no valid justification “for not treating guilty pair alike” and also reduce the maximum
punishment from five years to two years imprisonment17

The clause one ninety nine of a draft provision under IPC provided for an amendment which
was not passed which wanted the change the terms and make them gender just as

“Whoever has sexual intercourse with a person who is, and whom he or she knows, or has
reason to believe, to believe to be the wife or husband as the case may be, of another person,
such sexual intercourse not amounting to the offence of rape, commits adultery, and shall be
punished with imprisonment of either description for a term which may extend to five years,
or with fine, or with both18”.

Also in the year 2003, the Malimath Committee on reforms of the criminal justice system
submitted its report, stating that women should also be included under the offence19 . The
National Commission for Women, a statutory body for women which is a in the Indian Union
established under specific provisions of the Indian Constitution, was against the idea of

16
Constituent Assembly Debate, Vol. VII at 650
17
Law Commission of India, Report number: 42 326-327 (1972), accessed
at http://lawcommissionofindia.nic.in/1-50/Report42.pdf
18
BHAVANGI AGARWAL, ADULTERY UNDER INDIAN PENAL CODE: GENDER JUSTICE OR
GENDER INJUSTICE , RACOLB LEGAL, (Availabke at
https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=0ahUKEwj1
6vTUl47XAhUKqo8KHVbFD_0QFghTMAc&url=http%3A%2F%2Fracolblegal.com%2Fadultery-under-
indian-penal-code-gender-justice-or-gender-injustice%2F&usg=AOvVaw1qmIOVPwNk20k3oRj9kRAl
19
Ratanlal & Dhirajlal, Law of Crimes at 2710/ Bharat Law House 26th ed. 2007
inclusion of wife, and making the offence only civil wrong. The suggestion is absolutely
biased as it is towards women, in adultery still as a crime, opposite to all the discrimination
that has been dealt till here, the commission says that irrespective of whether a husband can
sue the wife or not, the wife should be able to prosecute the adulterous husband since women
are always victims and can never commit any crime.

6.1 SHOULD ADULTERY BE DE-CRIMINALIZED

There are few who argue that it a marriage being a nature of civil contract it should be let to
the parties to decide their terms and if they are fine with their spouses having extra- marital
affair then the law should not interfere and criminalize it, but in Indian society a marriage
being personal and sacramental such kind of permissions are highly criticised but also if we
impose penalty for adultery it may or may not be a effective remedy for the suffered party.
Hence it’s because of the Indian societal background that the courts are not able to de-
criminalize or add women also in the punishable category though is not a crime in most
countries of the European Union, including Austria, the Netherlands, Belgium, Finland,
Sweden and even the UK, of which we have borrowed most of our laws. It is high time that
this law is revisited even in India and amended to meet the present circumstances.

7. CONCLUSION

Indian society is dynamic. Adultery as an offence is extremely gender biased, and hence the
punishment for it follows the same pattern. The woman is looked at being incapable of taking
care of herself if her husband chooses to violate the marital bed. This law act as furtherance
to this belief and supresses any scope for achieving equality in laws governing both men and
women. When personal laws today are efficient and operate for both sexes as being equals,
and women are able to establish their own identity in society without their husbands, there is
no requirement to retain adultery as a criminal offence as well.

It must be kept in mind that adultery was drafted into the Indian Penal Code, 1870 during the
existence of the colonial rule in India. The prevailing conditions at this time were such that a
woman was looked at as being the mere property of a man. However, in the present day,
women are not mere chattel whose identities are defined by the men surrounding them, but by
their own individual personalities. Law, being dynamic in nature, must evolve with society.
Therefore, the dubious logic behind the adultery laws in India cannot be accepted in today’s
continuously evolving society.

In the modern era when the society is too liberal with the sexual offences and gender equality
is order of the day, the provision of adultery has opened for debate. It fails to answer several
questions and leads to serve hardly any proper purpose. To some extent, the gender neutral
version of the provision of adultery as recommended by Malimath Committee and Law
Commission would be appeared more logical and relevant. In the modern society, penal
statutes must be kept beyond the reach of that civil matter, especially family matter, where
such provisions are misused, misunderstood and hardly effective.

There is a need to have a second look to the provisions relating to ‘adultery’ in India, and
better way to decriminalize it and make it only as a civil wrong. Such changes are required to
translate the contemporary ‘social transformation’ assuring equality to women and the
constitutional spirit of gender equality into a reality.