SHOULD ADULTERY BE DECRIMINALIZED ?

INTRODUCTION
Under Indian law, Section 497 of the Indian Penal Code deals with Adultery. It 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”1, and
shall be punished with imprisonment of five years, or with fine, or with both. In such case, the
wife will not be punishable as an abettor. Only a man who had sexual intercourse with the wife
of another man without his consent can be punished for imprisonment. The wife is not
punishable for being an adulteress or an abettor. Now, the question arises whether adultery be
decriminalized? This article will be based on the paradigm

HISTORY
Initially, the constitutional validity of Adultery has been challenged many times, but the court
upheld its validity along with the ‘classification’ made under it. In the case of “Yusuf Aziz V.
State, the court ruled that the immunity granted to woman from being prosecuted under Section
497 was not discriminatory but valid under Article 15(3) of the Constitution. It does not offend
Articles 14 and 15 of the Constitution of India”2. The language in the above case suggests that if
the adultery committed by a woman with the consent of her husband then the wife’s relation with
the third man will not destroy the sanctity of their marital relationships. Also, this discriminates
between the husband and wife since it doesn’t include ‘husband of another woman’ exempting
the female partner in the extra-marital relationship for the charge of adultery.
In the landmark case of In the case of Sowmithri Vishnu V. Union of India and Anr., the court
held that “the contemplation of the law, evidently, is that the wife, who is involved in an illicit
relationship with another man, is a victim and not the author of the crime”3. The law in so far
does not permits neither the husband of the offending wife to prosecute her nor permits the wife
to prosecute the offending husband for being unfaithful to her. Here, the question arises that why
the consent of the husband is given importance and not that of the wife in deciding the quantum
of the offence?
Even the law mentions, ‘without the consent or connivance of the man’ which clearly states that
the adultery is not an offence per se , it only amounts to an offence when the husband of the
adulterer wife did not consent to it. This one again discriminates among the two genders by not
considering the consent of the wife when her husband is indulged in sexual relations with
1
"Indian Penal Code". Section 497, Act of 1860
2
Yusuf Aziz V. Sate of Bombay AIR 1954 SC 321
3
Sowmithri Vishnu v. Union of India (UOI) and Anr., AIR 1985 SC 1618.
 another woman. The main argument is generally based on the inheritance of the children of
marriage when wife.

JOSEPH SHINE V. UNION OF INDIA

Because of theses problematic interruptions, the Supreme Court of India passed a judgement in
the case of Joseph Shine V. Union of India4 in which Adultery was stuck down and held
unconstitutional as being violative of Articles 14, 15(1) and 21 of the Constitution of India. The
main objective of the marriage is to preserve its sanctity. However, this objective does not fulfill
before the Supreme Court in this case.

PERSPECTIVES
1. Section 497 is Arbitrary
It was observed that the nature of S.497 is arbitrary. To preserve the ‘sanctity of marriage’, the
husband’s consent is required to let his wife have an affair with another man. This treats the
woman as a chattel and it also indicates the ‘proprietary rights’ the husband has over his wife.
Moreover, there is no provision for the wife to file a complaint against her husband and his lover.
Also, the law doesn’t provide any provisions to deal with a married man having an affair with
another woman.

2. Woman can’t be confined by social expectations

In the Indian society, the role and responsibilities of a woman are deeply rooted in the society.
So, women can’t be forced to act according to society’s will. “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”5. The belief that women are the victim of Adultery has been highly criticized by
many feminist scholars who argued that the society fails to recognize them as equally
autonomous individual in the society.

3. A husband doesn’t own his wife

It is true that husband is not the Master of his wife and equality is the governing parameter.
S.497 must be scrapped down considering it to be ‘male friendly’ and that as long as it existed, it
reflected the idea that the wife was her husband’s property. Under Adultery, the consent of
women was of no importance, though the law grants immunity from prosecution.

4. Violates Article 14, 15(1) and 21 of the Indian Constitution

4
Joseph Shine v. Union of India, 2018 SCC SC 1676
5
Joseph Shine v. Union of India, 2018 SCC SC 1676
 S. 497 treats both men and women unequally. Firstly, the women are not subjected to
prosecution and Secondly, they cannot prosecute their husbands for adultery. This section lacks
in determining the principle for criminalizing consensual sexual intercourse therefore is arbitrary
and violative of Article 14 of the Indian Constitution. Article 15(1) prohibits the State to
discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or
any of them6. The offence of adultery discriminates between a married woman and a married
man on the ground of sex. The provision is discriminatory and hence, violative of Article 15(1)
of the Indian Constitution. S.497 curtails the essential dignity of a woman based on gender
stereotypes. “The emphasis on the element of connivance or consent of the husband tantamount
to the subordination of women”7 Therefore, violative of Article 21 of the Indian Constitution.

CONCLUSION

Therefore, Adultery is basically related to institution of marriage. Treating adultery as an offence

will result in entering a real private realm and hence, the offence of Adultery does not fit into the
concept of a crime. Since, S.497 distinguishes between the husband and the wife arbitrary,
confines the position of women on the basis of social expectations, treats husband as a owner or
a superior partner and is violative of various articles of Indian Constitution. So, itb must be stuck
down and decriminalized . Moreover, it’s better if Adultery is left as a ground of divorce.
Moreover, it should not be criminalized since it can only be used as a civil wrong. The offence of
Adultery in the case of Joseph Shine V. Union of India8 has been held unconstitutional and is
stuck down but it remains the ground for civil cases i.e. Divorce.

6
INDIA CONST. art. 15, cl. 1
7
Joseph Shine v. Union of India, 2018 SCC SC 1676
8
Joseph Shine v. Union of India, 2018 SCC SC 1676