i

Introduction
Marriages are made in heaven and are performed on earth. Over hundreds of years this was
believed and is always considered as a sacred bond between the husband and wife, so it is
respected among all the societies and cultures irrespective of caste or religion. Whereas now
we live in a very competitive world where both husband and wife have to participate in
growing world and has to ignore certain gender roles, there arises misuse or abuse of
relationship and so needed to have evolution in law and customs.
My Submission also deals with the decriminalisation of Section 497 of IPC with regard to
submission of support taking view of saving the sanctity of marriage.

Section 497 of Indian Penal code state 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 Problem with the section-

 The above statement in the section sometimes read as how the consent and
connivance of a man matters to have sexual intercourse with the wife, its
demoralizing for a women’s dignity. It also shows the true face of old law where a
women’s individual decision is under the husband liberty as he is the master of
women and house and depict wife as a speechless servant and if one has the consent
and connivance of her husband, before having sex with her, would not amount the
charge of adultery looks uglier.
 In Indian society,especially monogamous society where marriage is considered as
exclusive and sacred there is no place for adultery and thus it is unacceptable.
However this moral condemnation is not sufficient to stop people in indulging into
extramartial affairs. Indian society is a type of patriarchal system. Women were
always been dominated by the men and men always enjoyed such dominance. The job
of women was restricted to household. All major and minor decisions of her life were
taken by men, which means father before her marriage and then her husband after
 marriage. This very nature is reflected under section 497 which punishes a man for
adultery.1 But under same circumstances, if the wife finds that her husband is
involved in a sexual relationship with other women, then section 497 is not applicable
in such scenario. Thus this section is ineffective when seen through the lens of a
woman.

Modification in this law was a much-needed step to make it more valid and effective law, PIL
seeking modification in 157 years old law of adultery was a perfect move to modify such a
discriminatory law. It was also a long time plea in many cases that for the same amount of an
offence if a man is punishable, woman should also get punished in the similar way, otherwise
right to equality guaranteed by the constitution of India, carries no importance. There should
not be any discrimination in the amount of the charges based on gender, which is duly
rejected by Hon’ble supreme court explaining how right to equality is positive with regard to
protection of women and securing their well being and not being used to harm sanctity of
marriage. Decriminalising adultery has certainly shuts the criticism of only male being
punished for same offence, but also it is shocking judgement for the people who beliefs
believes sexual loyalty in marriage has been devastated by this.

Case study in support of my submission

Independent Thought v Union of India

In the case of Independent Thought v Union of India2 the constitutionality of Exception 2

to Sec. 375 of IPC was challenged, Where the age of less than 15 years is set to claim a
marital rape however the statutory age to give consent is 18 years of age, that is seen as
narrowing down the scope of marital rape. The judgment was unanimously upheld by the
Supreme Court bench consisting of Chief Justice of India Dipak Mishra, A.M. Khanwilkar J,
Chandrachud J, Nariman J and Indu Malhotra J. The Court held that “The view that “Marital
rape of a child has the potential of destroying the institution of marriage cannot be accepted
“. Court gave the reasoning that divorce and judicial separation law exists. While divorce
may destroy the marriage and judicial separation may dent a marital relationship, but they
do not have the potential of destroying the “institution” of marriage or even the marriage.

1
[]https://www.civilserviceindia.com/subject/Essay/adultery-is-not-a-crime.html

Writ Petition (C) 382/2013.

2
They both result in breaking the marriage but this does not imply that marriage as an
institution is being destroyed.”

The judgment has clearly declared that sometimes the law which seems unfair prima
facie, it is actually not likely divorce exist to walk out of a poisonous marriage, judicial
separation exist to avoid divorce, the purpose here is to save marriage, if we look it up the
true purpose of the law we will found that whether wife or not if a person is sexually
attacking someone without consent, it is rape for all, where in case of marriage to a minor in
India it is voidable not void-ab-initio and has deep rooted custom of early marriage so we
possibly cannot completely remove such practice at once but can ensue whether she is your
wife and might marriage demands or allows sexuality but if she is of less than 15 years of age
whether consent given it will be treated as Rape.

Joseph Shrine vs Union of India

Section 497 has been referred to old and outdated law which has been strucked down by a
five judges bench of the apex court. The petition against adultery was filed by Joseph shrine
and it was 18 September 2018 when the adultery as a criminal offence was struck down in the
case ‘Joseph Shrine vs Union of India.’ The petition challenged the concept of adultery as
present in the Indian laws.

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:
Provided that—
(2) For the purpose 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.
This section was also challenged in the court but held as irrelevant as this section protects the
misuse of law by family members of the wedded or others, ultimately protecting the sanctity
of the marriage.

The Supreme court in the current case dealt with three cases regarding the legality of the
adultery and in each case, it upheld the provisions.
There have been three instances before Supreme Court i.e., Yusuf Abdul Aziz v State of
Bombay3 , Sowmthri Vishnu v Union of India 4 and V. Revathi v Union of India 5 wherein,
the arguments against adultery was challenged but never once, the petition asked to render
the sections( mentioned above), as unconstitutional which was done in Joesph Shrine v
Union of India.

In the case of Yusuf Abdul Aziz v State of Bombay, Yusuf Abdul Aziz on trial for adultery,
he challenged Section 497 of Indian Penal Code by arguing that this section is contradictory
to Article 14 (Right to Equality) of the Constitution. After losing the case in Bombay, he
approached Supreme Court. In Supreme court, he argued that concept of equality enshrined
in Article 14 and 15 is violated in the S 497 , by assuming that the offence of adultery could
only be committed by a man and by the provision that the adulterous wife be not punished
even as an abettor and this gives women’s a license to commit adultery. However, the court
declared that: “We are unable to read any such restriction into the clause; nor are we able to
agree that a provision which prohibits punishment is tantamount to a license to commit the
offence of which punishment has been prohibited.”
Article 15 deals with Prohibition of discrimination based on religion, race, caste, sex or place
of birth. Article 15(3) enables the government to make special provisions for women and
children. It was this Article 15(3) which was debated in this case and the court unanimously
through Vivian Bose J declared that the exemption provided by this section is safeguarded by
Article 15(3) of the Constitution.

In the second case, Sowmithri v Union of India, it was contended that Section 497, being
contrary to Article 14 of the Constitution, makes an irrational classification between women
and men in the sense that it:
(i) Confers upon the husband the right to prosecute the adulterer but it does not confer a
corresponding right upon the wife to prosecute the woman with whom her husband
has committed adultery,
(ii) Does not confer any right on the wife to prosecute the husband who has committed
adultery with another woman, and

3
Yusuf Abdul Aziz v State of Bombay, 1951(53) Bom LR 736
4
1985 Suppl SCC 137
5
1988 SC 835
(iii) Does not take in its ambit the cases where the husband has sexual relations with
unmarried women, with the result that the husbands have a free license under the law
to have extramarital relationship with unmarried women.

When the third argument was raised in Sowmithri case of husband using this section as a
license, one question that was arose was that a similar argument can be raised by man too that
this provision provides license to women as well. Coming back to the Sowmithri case, court
did not find any substance in the argument of violation of Article 14 & 15 of women through
Section 497 which disables women from initiating any criminal proceeding for the act of
adultery.

Then comes the third case of V Revathi v Union of India, wherein the petitioner presented
the same argument as in the case of Sowmithri which we discussed earlier i.e., of wife being
prevented from punishing her adulterous husband but the petitioner also did not miss the
argument that that wife of the adulterous husband is also prevented from initiating any
proceeding against the husband.
CONCLUSION

The most seen criticism of the “decriminalisation of adultery” is that it will destroy sanctity
of marriage, it is even submitted by the counsels of the Union of India in the case of ______
in apex court, this often reflect the mindset of the society rooted in traditions, cultures and
morality which changes time to time to some extent, but which has to change with the
passage of time. Adultery is one of the leading causes of divorce in India and other countries
as well. A person's life is impacted on so many levels. Adultery can cause emotional,
physical, and spiritual distress not only to the persons committing the act but to others around
them. When one is considering adultery, one should take into account the negative long-term
effects it can have upon their life.
An important point that was not discussed enough in the previous cases was that the sanctity
of marriage cannot be saved from prosecuting the outsider. After the act of adultery, the
marital bond between husband and wife suffers and punishing the outsider is actually not a
solution.When Section 497 was enacted there were no codified personal and matrimonial
laws like today but they were unequal and inoperative.
Movies and the media are just one of the many ways in which adultery has been promoted
positively.The blockbuster movie "The English Patient" had twelve Oscar nominations
because how adultery portrayed between a good-looking count and a housewife. The media
has also drawn much unneeded attention to adultery as well.
Adultery is such a controversial issue which attracts every person of the society. The
recognition of adultery law as unconstitutional shows that finally the inherent discrimination
in adultery law has been rectified but we hope that this judgment will pave the path for
challenging more discriminatory laws.

REFRENCES

WEBSITES REFERRED

http://www.legalserviceindia.com/

https://www.livemint.com/

https://www.outlookindia.com/website/story/

https://www.academia.edu/
https://indiankanoon.org/

ARTICLES REFERRED

https://www.thehindu.com/news/national/s

https://timesofindia.indiatimes.com/blogs/legally-speaking

https://www.civilserviceindia.com/

https://www.indiatoday.in/education-today/gk-current-affairs/story

CASES REFERRED

Independent thought vs union of india

Yusuf abdul aziz vs state of Bombay

Sowmitrhi vs union of india

V Revathi vs union of india

Joseph shrine vs union of india

ACTS / Books REFERRED

Inidan penal code 1860

Code of Criminal procedure

IPC- by KD Kaur