DECRIMINALISATION OF ADULTERY

By- Neha Gupta

Pursuing 2nd year, BALLB (hons.) from RMLNLU, Lucknow

Introduction
“Decriminalizing adultery is not licensing adultery,” Justice Chandrachud observed while
hearing the case of Joseph Shine v Union of India.
An Italy-based Indian businessman Joseph Shine, who hails from Kerala, filed a Public
Interest Litigation (PIL) last year challenging IPC Section 497. He contended that the law is
discriminatory.1 Many Asian countries uphold adultery as a crime. In the United States,
adultery is still considered a crime in some states.2
The dictionary meaning of adultery is ‘voluntary sexual intercourse between a married
person and a person who is not their spouse.’ and adultery defined under section 497 IPC
states that ‘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 case the wife shall not be punishable
as an abettor.’
The provision has made it a restricted one as it punishes only when the sexual intercourse is
with a married woman and not with unmarried woman or widow. As a consequence of which
a man, in certain situations, becomes criminally liable for having committed adultery while,
in other situations, he cannot be branded as a person who has committed adultery.
Section 479 IPC was challenged on the ground that –

(1) That section 497 of the Penal Code is violative of Art. 14 of the Constitution because,
by making an irrational classification between men and women, it unjustifiably
denies to women the right which is given to men.

1
Prabhash K Dutta, “Section 497: 3 past Supreme Court judgments on adultery law” [September 27, 2018]
<https://www.indiatoday.in/india/story/adultery-law-section-497-3-past-supreme-court-judgments-1349993-
2018-09-27>
2
Suchitra Mohanty and Malini Menon, “India's top court decriminalizes adultery in landmark judgment”
[September 27, 2018] https://www.reuters.com/article/us-india-court-adultery/indias-top-court-decriminalizes-
adultery-in-landmark-judgment-idUSKCN1M71FW.>
 (2) This argument rests on the following three grounds-
(i)Section 497 confers upon the husband the right to prosecute the adulterer but, it does not
confer any right upon the wife to prosecute the woman with whom her husband has
committed adultery;
(ii) Section 497 does not confer any right on the wife to prosecute the husband who has
committed adultery with another woman; and,
(iii) Section 497 does not take in cases where the husband has sexual relations with an
unmarried women, with the result that husbands have, as it were, a free licence under the
law to have extramarital relationship with unmarried women.
(3) That it is violative of Article 15 because in treating a woman as chattel for the
purposes of this provision, it is clear that such provision discriminates against women
on grounds of sex only.
(4) That it is violative of two facets of Article 21 namely dignity of husband and wife, as
the case may be, and the privacy attached to a relationship between the two.

The set of bizarre conditions given in section 497 IPC together constituted a near-perfect
storm of patriarchy. The husband being authorised to bring a prosecution against the “other
man” (but not if he “consented” to the relationship) smacked of the belief that, on marriage,
ownership over a woman’s body passes from her father to her husband. The woman has no
independent personality but is, instead, subsumed into the personality of her husband, for the
purposes of law and for society. And exempting the adulterous wife from criminal
proceedings — although seemingly a benefit to her — was nonetheless based on the idea that
it is the man who is the seducer, and it is the woman who is sexually submissive, and lacking
agency in a relationship (and hence, the asymmetry: you cannot punish someone for
something they are not responsible for). Both these presumptions were staple features of
Victorian law and morality, which was the basis of the Indian Penal Code of 1860.3

The adultery law first came under challenge in 1951 in the Yusuf Abdul Aziz v State of
Bombay4 case. Petitioner contended that the adultery law violated the fundamental right of
equality guaranteed under Articles 14 and 15 of the Constitution. It was held in this case that
‘Article 14 is general and must be read with other provisions which set out the ambit of
fundamental rights. Sex is sound classification and although there can be no discrimination

3
Gautam Bhatia, ‘Decriminalisation of Adultery is the first of many steps’ [September 28, 2018]
<https://www.hindustantimes.com/analysis/decriminalisation-of-adultery-is-the-first-of-many-steps/story-
twhdBreDAwXsNd1brGSUUI.html>
4
Yusuf Abdul Aziz v State of Bombay 1954 SCR 930.
in general on that ground, the constitution itself provides for special provisions in the case of
women and children.’ Now it is overruled in Joseph Shine v Union of India.5
The dominant argument in the court hearing was that Section 497, governing adultery law,
discriminated against men by not making women equally culpable in an adulterous
relationship. It was also argued that adultery law gave a license to women to commit the
crime.
It was held in the case of Sowmithri Vishnu v Union of India6 that the law, as it is, does not
offend Art. 14 or 15 of the Constitution. The offence of adultery by its very definition, can
be committed by a man and not by a woman: The argument of the petitioner really comes to
this that the definition should be recast by extending the ambit of the offence of adultery so
that, both the man and the woman should be punishable for the offence of adultery.
Where such an argument permissible, several provisions of the penal law may have to be
struck down on the ground that, either in their definition or in their prescription of
punishment, they do not go far enough. Such arguments go to the policy of the law, not to its
constitutionality, unless while implementing the policy, any provision of the Constitution
is infringed.

Therefore, it cannot be accepted that in defining the offence of adultery so as to restrict

the class of offenders to men, any constitutional provision is infringed. However, it is for
the legislature to consider whether Section 497 should be amended appropriately so as to
take note of the 'transformation' which the society has undergone.

Now, In Joseph Shine v Union of India the court overruled this case and held that -
1) Section 497 lacks an adequately determining principle to criminalize consensual sexual
activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it
perpetuates the subordinate status ascribed to women in marriage and society. Section 497
violates Article 14 of the Constitution;
2) Section 497 is based on gender stereotypes about the role of women and violates the non-
discrimination principle embodied in Article 15 of the Constitution;
3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and
sexual autonomy which are intrinsic to Article 21 of the Constitution; and
4) Section 497 is unconstitutional.

5
Joseph Shine v Union of India (2018) 2 SCC 189.
6
Sowmithri Vishnu v Union of India 1985 Supp SCC 137.
Alongwith section 497 IPC section 198(2) was also held unconstitutional because
Section 198 CrPC deals with a –‘person aggrieved’. Sub-section (2) of Section 198 treats the
husband of the woman as deemed to be aggrieved by an offence committed under Section
497 IPC and in the absence of husband, some person who had care of the woman on his
behalf at the time when such offence was committed with the leave of the court. It does not
consider the wife of the adulterer as an aggrieved person. It does not treat a woman as an
abettor but protects a woman and simultaneously, it does not enable the wife to file any
criminal prosecution against the husband.

In case of adultery, the law expects the parties to remain loyal and maintain fidelity
throughout and also makes the adulterer the culprit. This expectation by law is a command
which gets into the core of privacy. That apart, it is a discriminatory command and also a
socio-moral one. Two individuals may part on the said ground but to attach criminality to the
same is inapposite. Adultery, in certain situations, may not be the cause of an unhappy
marriage. It can be the result.
While talking about legislature the court said that ‘We are absolutely conscious that the
Parliament has the law making power. We make it very clear that we are not making law or
legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a
crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be
immense intrusion into the extreme privacy of the matrimonial sphere.

Conclusion
The main argument that people are forwarding against the decriminalization of adultery is
that it will destroy the sanctity of marriage but the sanctity of marriage can be utterly
destroyed by a married man having sexual intercourse with an unmarried woman or a widow,
as has been seen hereinabove. Also, if the husband consents or connives at such sexual
intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage
which is sought to be protected and preserved, but a proprietary right of a husband.
it is an excellent and exemplary judgment which is bound to erase the subjugation of women
by men. Now men can no longer be the boss of women! Section 497 which should have been
erased right after independence has now been struck off after more than 71 years of
independence and that too by the judiciary and not by the Legislature which just did not care
to take any worthwhile initiative in this regard even though the 156th report of Law
Commission of India and Justice Malimath Committee report had categorically called for
making Section 497 gender neutral leave alone erasing it altogether.
The main argument put forward by judges in support decriminalization of adultery is that
section 497 IPC treats woman a thing and it denies equal treatment to them.
But in my opinion if the intention of the court was to bring women on the same pedestal as
men are then they could easily do so by amending section 497 IPC i.e, by punishing a woman
who is engaged in adultery.
Moreover, the women should be given right to prosecute her husband if he commits adultery
because she is the one against whom this offence is committed Section 198 of the Code of
Criminal Procedure, 1973, which prohibits wives from filing adultery complaints, be struck
down.

It creates an arbitrary classification between married women and unmarried
women.
 The

The court held that subjecting interpersonal relationships (where there was
no violence) to the rigours of criminal law would amount to an
unwarranted intrusion into the right to privacy. Therefore, the legislature
could not respond to the judgment by passing a fresh, gender-neutral
adultery offence: that, too, would be unconstitutional, this time under
Article 21 of the Constitution.