UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B.A., LL.B. (Hons.) Labor/Criminal Laws

SEMESTER – 7TH

RESEARCH PAPER

FOR

DECRIMINALIZATION OF ADULTERY

Under the Supervision of: Prof. Nikita Begum Talukdar

ABDULLAH

R154216005

500055158
 DECRIMINALIZATION OF ADULTERY

INTRODUCTION

Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns
“

warmth and respect when it respects more the individuality of a woman. The said concept gets a
further accent when a woman is treated with the real spirit of equality with a man. Any system
treating a woman with indignity, inequity and inequality or discrimination invites the wrath of
the Constitution. Any provision that might have, few decades back, got the stamp of serene
approval may have to meet its epitaph with the efflux of time and growing constitutional
precepts and progressive perception. A woman cannot be asked to think as a man or as how the
society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time
to say that a husband is not the master. Equality is the governing parameter. All historical
perceptions should evaporate and their obituaries be written. It is advisable to remember what
John Stuart Mill had observed:-
The legal subordination of one sex to another – is wrong in itself, and now one of the chief
hindrances to human improvement; and that it ought to be replaced by a system of
perfect equality, admitting no power and privilege on the one side, nor disability on the other.
We are commencing with the aforesaid prefatory note as we are adverting to the constitutional
validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal
Procedure .
It is necessary to state that though there is necessity of certainty of law, yet with the societal
changes and more so, when the rights are expanded by the Court in respect of certain aspects
having regard to the reflective perception of the organic and living Constitution, it is not apposite
to have an inflexible stand on the foundation that the concept of certainty of law should be
allowed to prevail and govern. The progression in law and the perceptual shift compels the
present to have a penetrating look to the past.1
When we say so, we may not be understood that precedents are not to be treated as such and that
in the excuse of perceptual shift, the binding nature of precedent should not be allowed to retain
its status or allowed to be diluted. When a constitutional court faces such a challenge, namely, to
be detained by a precedent or to grow out of the same because of the normative On the
Subjection of Women, Chapter 1 (John Stuart Mill, 1869) changes that have occurred in the
other arenas of law and the obtaining precedent does not cohesively fit into the same, the concept
of cohesive adjustment has to be in accord with the growing legal interpretation and the analysis
has to be different, more so, where the emerging concept recognises a particular right to be
planted in the compartment of a fundamental right, such as Articles 14 and 21 of the

1
AIR 1985 SC 1618
Constitution. In such a backdrop, when the constitutionality of a provision is assailed, the Court
is compelled to have a keen scrutiny of the provision in the context of developed and progressive
interpretation. A constitutional court cannot remain entrenched in a precedent, for the
controversy relates to the lives of human beings who transcendentally grow. It can be announced
with certitude that transformative constitutionalism asserts itself every moment and asserts itself
to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be
viewed from another perspective. What might be acceptable at one point of time may melt into
total insignificance at another point of time. However, it is worthy to note that the change
perceived should not be in a sphere of fancy or individual fascination, but should be founded on
the solid bedrock of change that the society has perceived, the spheres in which the legislature
has responded and the rights that have been accentuated by the constitutional courts.
Despite conferring many a right on women within the parameters of progressive jurisprudence
and expansive constitutional vision, the Court cannot conceive of women still being treated as a
property of men, and secondly, where the delicate relationship between a husband and wife does
not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third
party culpable.2
Understanding the gendered nature of Section 497 needs an inquiry into the origins of the
provision itself as well as the offence of adultery more broadly. The history of adultery throws
light upon disparate attitudes toward male and female infidelity, and reveals the double standard
in law and morality that has been applied to men and women. Throughout history, adultery has
been regarded as an offence; it has been treated as a religious transgression, as a crime deserving
harsh punishment, as a private wrong, or as a combination of these. The earliest recorded
injunctions against adultery are found in the ancient code of the Babylonian king Hammurabi,
dating from circa 1750 B.C. The code prescribed that a married woman caught in adultery be
bound to her lover and thrown into water so that they drown together. By contrast, Assyrian law
considered adultery to be a private wrong for which the husband or father of the woman
committing adultery could seek compensation from her partner. English historian Faramerz
Dabhoiwala notes that the primary purpose of these laws was to protect the property rights of
men.
In Ancient Greco-Roman societies, there existed a sexual double standard according to which
adultery constituted a violation of a husband’s exclusive sexual access to his wife, for which the
law allowed for acts of revenge. In 17 B.C., Emperor Augustus passed the Lex Julia de adulteriis
coercendis, which stipulated that a father was allowed to kill his daughter and her partner when
caught committing adultery in his or her husband’s house. While in the Judaic belief adultery
merited death by stoning for both the adulteress and her partner, Christianity viewed adultery
more as a moral and spiritual failure than as a public crime. The penalties of the Lex Julia were
made more severe by Christian emperors. Emperor Constantine, for instance, introduced the
death penalty for adultery, which allowed the husband the right to kill his wife if she committed
adultery.29 Under the Lex Julia, adultery was primarily a female offence, and the law reflected
the sentiments of upper-class Roman males.Faramerz Dabhoiwala, The Origins of Sex: A

2
Naz Foundation v. Government of NCT of Delhi and Others, 2010 CriLJ94
History of the First Sexual Revolution (2012), at page 5 David Turner, Adultery in The Oxford
Encyclopaedia of Women in World History (2008), at page 30 Vern Bullough, Medieval
Concepts of Adultery, at page 7 The Oxford Encyclopaedia of Women in World History,
(Bonnie G Smith ed.), Oxford, at page 27 Martin Siegel, For Better or for Worse: Adultery,
Crime & the Constitution, Vol. 30, Journal of Family Law (1991), at page 46 Vern Bullough,
Medieval Concepts of Adultery, at page 7James A. Brundage, Law, Sex, and Christian Society in
Medieval Europe, Once monogamy came to be accepted as the norm in Britain between the
fourth and fifth centuries, adultery came to be recognized as a serious wrong that interfered with
a husband’s “rights” over his wife. The imposition of criminal sanctions on adultery was also
largely based on ideas and beliefs about sexual morality which acquired the force of law in
Christian Europe during the Middle Ages. The development of canon law in the twelfth century
enshrined the perception of adultery as a spiritual misdemeanour. In the sixteenth century,
following the Reformation, adultery became a crucial issue because Protestants placed new
emphasis on marriage as a linchpin of the social and moral order. Several prominent sixteenth
century reformers, including Martin Luther and John Calvin, argued that a marriage was
irreparably damaged by infidelity, and they advocated divorce in such cases . ”

Joseph Shine vs. Union of India

On October 2017, Joseph Shine, a non-resident Keralite, filed public interest litigation under
Article 32 of the Constitution. The petition challenged the constitutionality of the offence of
adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.

IPC Section 497 criminalizes adultery by blaming a man who has sex with someone else's wife.
Adultery was punishable by a maximum term of imprisonment of five years. Women, including
the consenting parties, were exempt from criminal proceedings. Also, a married woman cannot
file a complaint under art. 497 IPC, when her husband had sex with a single woman. This was
related to section 198, par. 2 CrPC, which defines how the applicant can pay fees for crimes
committed in accordance with IPC sections 497 and 498.
Lawyer Jayna Kothari, CLPR Executive Director, represented the intervener Vimochan. She
attacked a law that declared adultery a crime, citing the fundamental right to privacy recognized
by the Supreme Court in the Puttaswama case. She claimed that the right to an intimate
association was an aspect of privacy protected by the Constitution.
Section 497 was unconstitutional because the basis for criminalizing adultery was the assumption
that a woman was considered her husband's property and that she could not have unions outside
marriage. However, the same restrictions did not apply to the husband. Paragraph 497 violates
women's right to privacy and freedom by discriminating against married women and committing
gender stereotypes.The portion of Article 15 on which the appellant relies is this.
The state does not discriminate against any citizen based on sex. However, they ignore the fact
that it is subject to clause (3), which is in force: nothing in this article prohibits the state from
introducing special provisions for women. The provision to which the complaint refers is a
special provision and is intended for women, which is why it is included in clause (3).
It has been argued that clause (3) should be limited to beneficial provisions for women and
cannot be used to license them to commit and commit crimes. We cannot read this restriction in
the clause; nor can we agree that a law prohibiting fines amounts to a license to commit a crime
for which a penalty has been prohibited.
The Court ruled that section 497 is unconstitutional and constitutes a violation of art. 14, 15 and
21 of the Indian Constitution and determined that section 198 for. 2 CrPC is unconstitutional in
that it applies to Sec 497 IPC.
In the case of Yusuf Abdul Aziz v. State of Bombay3, the division bench of the Bombay High
court held that section 497 of IPC does not violate Art.14,15 and 21 of the Indian constitution.
In the case of Sowmithri Vishnu v. Union of India and Anr4. the court held that the scope of the
offence of adultery, women should also be punished.
Globally, many countries have decriminalized adultery, while in some cases this remains the
main reason for divorce. Section 497 of the IPC is considered a violation of the fundamental
right to equality under art. 14, that is, fair procedures before the law that further prevent women
from prosecution, added to this article 497 also violate the right to privacy of the individual in
accordance with art. 21 of the Indian Constitution.
During the previous hearing of the case, the court noted that the law appeared to be based on
certain "social assumptions."
In four separate but converging trials, the court criticized the law and declared that the husband
could not own his wife. Here are the five main points we judge:

1. Section 497 is arbitrary: Throughout the judgment it has been clarified that the nature of
Section 497 is arbitrary. First, she does not preserve the "sanctity of marriage" because the
husband may agree that his wife may have an affair with someone else. On the contrary, the
judgment indicates that it serves to protect the "property rights" that the husband has over his
wife. Moreover, a wife cannot complain about her husband or her lover. There are no rules for a
married man to have an affair with a single woman or widow.

2. Women cannot be bound by social expectations: the other side of the judgment clearly states:
"It is not possible to ask women to think as a man or as society wishes. Such thinking is
disgusting because it kills their basic identity." In a society like India, women's roles and
expectations are deeply rooted in society. It is therefore revolutionary for the Supreme Court to

3
AIR 1954 SC 321 : 1954 SCR 930
4
AIR 1985 SC 1618
recognize that women cannot be forced to act in accordance with the will of society. It is not
tinted enough to consider the type of marriage or why a partner cheated.
3. Husband Doesn't Own Wife: The court adds, "And it is time to say that the husband is not
lord. Equality is the paramount parameter." Activists criticized chapter 497, saying that he was
completely "friend of men." "and that as long as he existed he perpetuated the idea that the wife
was the property of the husband.
4. This is contrary to art. 14, 15 of the Constitution: art. 14 guarantees equality for all citizens of
India and art. 15 states that no one can be discriminated against on grounds of religion, race,
caste, sex, etc. The court noted that the very nature of section 497 was contradictory because it
perceived women as subordinates of men and thus contrary to the constitution of India.
5. Why Adultery Must Be a Crime: The verdict clearly explains that in criminalizing the act, the
law entered an extremely particular sphere - married life. According to art. 21 of the
Constitution, all guarantee personal dignity and freedom, but in making adultery a crime
individuals would be deprived of their dignity and privacy. "The independence of the individual
in making choices about his sexuality in the most intimate spaces of life must be protected from
public censorship," Malhotra wrote in his trial, thus questioning why this is a crime at all. She
added that because adultery was a moral evil and not a public one that affected the lives of many
others, it did not deserve to be considered a crime.
.
The Judgement in the case of Joseph Shine v. Union of India is a good initiative and an ideal of
transformative justice. The court has struck down section 497 of IPC and Section 198(2) of CrPC
and has decriminalized adultery. The stated sections are discriminative as there is no provision or
right of a woman to prosecute her husband who indulges in adultery and it does not punish a
woman in adultery not even as an abettor.
This Judgement is criticized as it makes adultery non punishable and affects the social
institutions of marriage and family.

SOCIOLOGICAL ASPECT OF ADULTERY

Women were treated as victims of the crime of adultery because their husbands of love and
affection often starved them and could easily surrender to anyone who offered them or even
offered them. It was therefore decided to limit men from sexual contact with other men's wives
while limiting their extramarital relationships to single women in order to create a sense of
security among women.
These grounds for assessment, however, do not confirm the criminal nature of the act. Now
philosopher Joel Feinberg gives us different rules for determining what behavior can rightly
make a state a crime. But the critical scrutiny of adultery-related criminal rules against various
criminalization rules reveals the absence of any legitimate legislative intentions and their highly
discriminatory nature, but also the non-compliance with any of these principles.
Feinberg describes that state interference in a citizen's behavior is usually morally justified only
if it is justified by the need to avoid harm or unjustified risk of harm to a party other than the
person with whom he interferes. More specifically, the need to prevent harm (private or public)
to parties other than the actor is always a good reason for legal coercion. After testing against
different rules, the results are:
• Harm to third parties: This theory confirms that preventing harm to non-perpetrators is a
legitimate goal of applied law. However, in the case of adultery, a woman's husband is not
harmed by such an act of his wife, which makes him ineffective in reducing any kind of harm to
a person other than the actor, ie husband. Another justification for this criminalization is that
there should be no other equally effective means at a higher cost compared to other values.5
However, attributing it to the nature of a civil crime under the Domestic Violence Act as
psychological torture would more effectively resolve this goal. In fact, considering it a marital
crime that would allow her to divorce and separate in court would be a major impediment.
• Crime against third parties: Your justification is that a criminal prohibition is justified only if it
prevents a serious crime against people who are not an actor and would be an effective means of
achieving this. However, adultery based on patriarchal moral concepts considers any wife's act,
performed without her husband's consent, to be a violation of her right to property. There is no
element of physical or emotional crime committed against the husband and this does not even
prevent the commission of any future crime, but it does lead to hostility in the harmonious
relationship between husband and wife. Moreover, this provision covers only a possible crime
committed in the husband of an adulterous wife, but does not apply to a crime committed in the
wife of a male adulterer.
• Third Party Benefit Principle: Joel Feinberg is in favor of criminal punishment when it is
necessary to obtain certain benefits for persons other than the person who is prohibited. Failure
to commit adultery will not benefit others. She is rooted only in the central part of patriarchal and
regressive society, which prevents a woman from exercising her right to the body without her
husband's consent. Husband's depression is not beneficial.
• Damage to yourself: This principle covers the resolution of problems related to personal injury
and forms the basis of legal paternalism. It is argued that the prohibition of criminal sanctions is
justified only if it prevents any physical, psychological or economic harm to the actor himself.
This sexual activity occurs voluntarily and does not cause any physical or psychological harm to
any of the actors involved. Involvement of consenting adults, the penalty for it is not justified.
The act of adultery is based on the personal sovereignty of persons who voluntarily assume all
risks with full consent without any forced or falsified act and should therefore be prohibited..

5
V. Revathi v. Union of India (UOI) and Ors, AIR 1988 SC 835.
• Harmless Wrongdoing: This principle covers behaviour that doesn’t actually harm anyone else
but still is outlawed. Based on the concept of Legal Moralism, punishment is considered morally
legitimate for the state to adopt for the prohibition of certain types of actions that cause neither
harm nor offence to anyone, if there are sufficient grounds that such actions would constitute or
cause evils of other “free- floating” kinds. Adultery does not find any basis in legal moralism
since it does not cause any evil outcome to any individual or the society.6 If viewed from
progressive lenses, it is a matter of choice and doesn’t affect the rights of communities or
exploitation to any third party and hence cannot remain criminalised when no harm in being
inflicted on anyone.

INTERNATIONAL ASPECT

The mutual decision of two adults regarding participation in sexual activity underpins the
jurisprudence regarding privacy and requires the removal of all restrictions on a person's decision
on whether or not to engage in sexual activity.
Such a mistake in the argument that supports the Law of Adultery was recognized by lawmakers
around the world who now realized the need to abolish this legal act. In the United States,
several state laws criminalize adultery, while South Korea decriminalizes adultery, repealing a
law that punished cheating spouses for up to two years in prison. In fact, all European nations
have decriminalized adultery. Although not considered a crime in most western countries, it can
have legal consequences, especially in divorce proceedings.
Especially only countries subject to Islamic law, including Saudi Arabia, Pakistan and Somalia,
still strictly prohibit 'Zina' or 'debauchery'. This reflects the nature of the law of adultery related
to the progress of society. Given that the social structure and value system have undergone rapid
changes, adultery must be decriminalized. Otherwise, it definitely needs to be reconsidered.
Basically, you need to change your perspective of regression and accept that there may be crimes
against men, that men also suffer and that women can also be perpetrators. The process of
socialization in Indian society still requires a sexist approach that we are somehow unable to
accept that men can also be raped. It takes an hour for our children's education to be based on
recognition of the principles of equality and the right to all.
There have been campaigns and movements for men around the world. International
Human Day is celebrated on November 19 of each year, since 2007, in response to the
international
Woman's Day. We need to create a dedicated ministry to protect men's rights and well-being or
establish a men's commission similar to that of women. As a society, we really need to instill

6
M. Alavi v. T.V. Safia, AIR 1993 Ker 21
gender sensitivity and develop a sense of respect and affection for the opposite sex. It is
important to realize that creating one part of society does not require oppressing another.
From a legal standpoint, we must ensure that our laws use gender-neutral language and that both
sexes are equally protected. Regulations should not be based on the assumption that the
perpetrator is only one sex and the other the unfortunate victim. Strict legal provisions should be
laid down against bogus candidates who cause immeasurable victims of immeasurable
inconvenience. To establish a gender equality society, we must also recognize the rights of
LGBT people, as this will ensure the legal justice and social integration of all communities.
Finally, we must understand that crime has no sex and everyone should be prevented from
committing it. He causes countless sufferings to the victim and deserves justice
Change is needed in a patriarchal society that has discriminated against women for thousands of
years, but wants the country's laws to become "gender neutral" and discriminatory against men.
Adultery is yet another social and civil crime and represents a more arbitrary and unfaithful trust,
not only to the spouse but to the whole family. Adultery is a consequence of the breakdown of
faith and conscience in a relationship and requires corrective action rather than punishment.
Sanctions imposed by law may bring relief for a short time, but they destroy the sanctity of
marriage and long-term ruined family life.
The law recognized a woman as a non-criminal victim. the community punishes a "stranger" who
breaks the marriage, and there is a violation of the sanctity of the marital relationship by
developing an illegal relationship with one of the spouses, provided that the knight can be
punished only with the wrong "man", not the woman wrong. The court, however, ignores the
argument that the wife has no criminal right, although the husband is entitled to the same
provision and, if the wife is not married, he cannot be fully charged.
This can be seen as a violation of the principle of natural justice. There is an immediate need to
reconsider, decriminalizing any act of adultery, or resorting to alternative channels, such as
gender neutral, to get rid of the discriminatory nature of this provision and make it inclusive for
all parts of society.
CONCLUSION

The law on adultery, conceived in Victorian morality, considers a married woman the possession
of her husband: a passive entity, bereft of agency to determine her course of life. The provision
seeks to only redress perceived harm caused to the husband. This notion is grounded in
stereotypes about permissible actions in a marriage and the passivity of women. Fidelity is only
expected of the female spouse. This anachronistic conception of both, a woman who has entered
into marriage as well as the institution of marriage itself, is antithetical to constitutional values of
equality, dignity and autonomy.
In enforcing the fundamental right to equality, this Court has evolved a test of manifest
arbitrariness to be employed as a check against state action or legislation which has elements of
caprice, irrationality or lacks an adequate determining principle. The principle on which Section
497 rests is the preservation of the sexual exclusivity of a married woman – for the benefit of her
husband, the owner of her sexuality. Significantly, the criminal provision exempts from sanction
if the sexual act was with the consent and connivance of the husband. The patriarchal
underpinnings of Section 497 render the provision manifestly arbitrary.
This Court has recognised sexual privacy as a natural right, protected under the Constitution. To
shackle the sexual freedom of a woman and allow the criminalization of consensual relationships
is a denial of this right. Section 497 denudes a married woman of her agency and identity,
employing the force of law to preserve a patriarchal conception of marriage which is at odds with
constitutional morality:
“Infidelity was born on the day that natural flows of sexual desire were bound into the legal and
formal permanence of marriage; in the process of ensuring male control over progeny and
property, women were chained within the fetters of fidelity.” Constitutional protections and
freedoms permeate every aspect of a citizen’s life
The delineation of private or public spheres become irrelevant as far as the enforcement of
constitutional rights is concerned. Therefore, even the intimate personal sphere of marital
relations is not exempt from constitutional scrutiny.
The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the
fundamental right to dignity and equality. Criminal law must be in consonance with
constitutional morality. The law on adultery enforces a construct of marriage where one partner
is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of
liberty, dignity and equality
The contra view is that adultery is a marital wrong, which should have only civil consequences.
A wrong punishable with criminal sanctions, must be a public wrong against society as a whole,
and not merely an act committed against an individual victim.
To criminalize a certain conduct is to declare that it is a public wrong which would justify public
censure, and warrant the use of criminal sanction against such harm and wrong doing.
The autonomy of an individual to make his or her choices with respect to his/her sexuality in the
most intimate spaces of life, should be protected from public censure through criminal sanction.
The autonomy of the individual to take such decisions, which are purely personal, would be
repugnant to any interference by the State to take action purportedly in the „best interest‟ of the
individual.