SVKM’S NARSEE MONJEE INSTITUTE OF MANAGEMENT

SCIENCES

KIRTI P MEHTA SCHOOL OF LAW

A STUDY ON LAW OF ADULTERY IN INDIA

SUBMITTED BY: AADI SAKLECHA

SUBMITTED TO: RAJNEESH DUBEY

 TABLE OF CONTENTS
ABSTRACT 1

INTRODUCTION 2

HISTORICAL BACKGROUND 3

INDIAN PENAL CODE4

CODE OF CRIMINAL PROCEDURE 5

DEVLOPMEMNT OF LAW 6

CASE LAW AND ADULTRY 7

ARGUMENTS 8

JUDGMENTS 9

RELIGION AND THE ADULTEYR 10

ADULTERY AND THE SCHOOLS OF JURISPRUDENCE 11

REPORT AND ANALYSIS 12

CONCLUSION 13
ABSTRACT: We all know that India is the vast country with different Religions and

customs while talking about Adultery the term adultery is known as having a sexual affair or

relationship after marriage and just for sex without the consent of the legal wife the law was

enacted in the year 18600 and is being running since 161 years the adultery is termed as a

criminal offence in India. the reason of doing a research on the topic adultery is to find out what

is adultery and how does it came into an existence and how it is being treated in different part of

the country and by different religions In India we all know that adultery is an criminal offence

and the adulterer(a male person who commits an adultery) and adulteress are treated by the

society after that we are going to study not only about adultery in India but also how it is being

seen in different countries the adultery term has been originated from the BIBLE Jesus Christ

says that whoever sees a women in lust has already committed adultery in his mind

INTRODUCTION: Adultery in India is defined as a sexual relationship between a

man and women who either is married to someone else and without the consent of the wife or a

husband of a seducer. according to S497 of the IPC “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.”1 In such cases wife is not punishable and only the man is punishable the section
1
, 'Section 497 in The Indian Penal Code' (Indian
Kanoon, ) <https://indiankanoon.org/doc/1833006/#:~:text=%E2%80%94Whoever%20has
%20sexual%20intercourse%20with,be%20punished%20with%20imprisonment%20of> accessed
29 January 2021
of adultery always require these essentials making a sexual relationship with a woman who is

and whom he knows or has reason to believe to be the wife of another man. Such sexual

relationship must be without the consent of the husband. An adulterer is a married man who has

sex with a woman who is not his wife, or a man who has sex with another man’s wife while an

Adulteress is a female adulterer in terms of adultery there are some cases where it is acceptable

for both men and women to have other sex partner other than their lawful partner the term is

called as non –monogamy the system of non monogamy is also a part of an adultery .essentials

of an Adultery Includes

1. He should have a sex with another person who is not their wife

2. Either one of them should have a living wife or a husband

3. Women cannot sue other women for committing an adultery

INDIAN PENAL CODE : The Indian Penal Code is the comprehensive code

drafted by the first Law Commission of India in the year 1834 the code was established under the

character act of 1833 under the chairmanship of LORD MACUALAY during the British Raj

The code was separated after the partition of the India And Pakistan after partition In India the

code was called as Indian Penal code whereas In Pakistan it is called as Pakistan Penal code the

code was separated thereafter the separation of Pakistan and Bangladesh the code was drafted by

the first law commission of India in the Chairman ship of Lord Macaulay and was submit to the

Governor General of India the next year Itself and the drafting procedure was completed after

15 years The objective behind is to Provide a General Penal code (a body law related to crimes)
of India The code is largely divided into 23 chapters and 511 sections which starts with

introduction of each law to all the explanations which covers every criminal acts .2

CODE OF CRIMINAL PROCEDURE : The code of criminal procedure also

known as the criminal procedure code the CRPC was enacted in the year 1973 and had cam into

action after 1 year the law deals with public nuisance the act contains 484 sections 2 schedules

and 56 forms the sections 198(2) of the CRPC talks about adultery in India as a law the CRPC

investigate about the Evidences of the law and punishment of the guilty . 3

HISTORICAL BACKGROUND: The adultery act was Enacted in 1860 by the

first law commission of India the adultery law was first enacted by the Lord Macaulay of

India he proposed that the adultery law should be a civil wrong which was not accepted by the

Law commission of India and the law was changed to criminal offence the law commission

thinks that the law of adultery is a crime committed by adulterer(a male person who committed

adultery ) and adulteress (a female person who committed an adultery ) In the eyes of Hindu

people they see adultery as a theft and they are punished by public Harassment it has been 161

years since the law has been enacted in India the adultery law speaks that only men is the master

and women being his property adultery is a criminal offence to be a serious offence by many

cultures and different countries have different thinking towards adultery In India section 10 of

2
Diva Rai , 'Indian Penal Code Laws related to Adultery in India' (IP Blog Leaders, May 22
2019) <https://blog.ipleaders.in/legalising-adultery-in-india/> accessed 28 January 2021
3
Diva Rai , 'Indian Penal Code Laws related to Adultery in India' (IP Blog Leaders, May 22
2019) <https://blog.ipleaders.in/legalising-adultery-in-india/> accessed 28 January 2021
the Hindu marriage acts talks about the adultery Section 10 speaks about adultery and its stated

that adultery should be given a divorce in India the females are called as a property of their

Husband and not the masters of their own in India marriage act include 4 sections i.e. 494-498

which includes adultery as a part of S497 of the IPC .

DEVLOPMENT OF THE LAW: The adultery law was running since 1860 and
was first given by Lord Macaulay ,Macaulay thinks that the law of adultery should be a civil

wrong which should be given a ground for divorce but the fact was not accepted by the law

commission of India the Law commission abolished the law and high punishments was created

for the seducer and only men was punishable not the women in many part of the world the

adulterer and the adulteress are punished and adultery is considered as an anti social activity the

origin of adultery was developed by the first Law Commission of India Lord Macaulay Give an

offer to keep adultery law out of criminal offence and should be given a ground for divorce

instead we all know that the conditions of women of India is consistently unhappier then that of

women of different countries in India women are treated as the property of their husband and

husband being their masters when we talk about adultery we all know that adultery is a crime in

India and only men is punishable under it the main reason of making adultery an offence is that

the law punishes man only and women are exempted from it women are not allowed to sue

another women for committing an adultery with her husband and thus it concludes that the

women is not punished under the law as an adulteress or an abettor .. finally in 2018 a judgment

was passed regarding the law and the law was scrapped On 27 SEPTEMBER 2018 by Chief

justice DIPAK MISRA and other judges of the court the case was challenged by Joseph Shine.
 CASE LAW RELATED TO ADULTERY: Joseph Shine Vs Union Of

India . In 2018 Joseph shine a 41 year old nonresident of Kerala filed a Public Interest Litigation

on the basis of article 32 of the Indian Constitution speaks about the Right to Constitutional

Remedies which or firms and everyone has the right to move to supreme court the 45 page

petition was filled by Joseph shine in Respect of article 32 of the Indian constitution and gave

examples of Women of America And Women of Britain however the ruling party The only

Bhartiya Janta Party opposed the law as they think if adultery would abolished It will be a bad

Impact on Marriages and customs 4

ARGUMENTS : The law of adultery in India was challenged by Joseph Shine who

is a 41 year non residential Keralite e thinks that the adultery law only gives and punishes the

men where as the women are exempted from it he gave the examples of women from America

And Britain who can marry even after they had a divorce and had children he stated that the

Condition of the Indian Women are comparatively poor than that of different countries the 45

page petietion was filed and was argued the argument were based on how does adultery law

violates the article 14 of the Indian constitution Mr. Kaleeswaram Raj argued that the adultery

law punishes only the men and women are exempted from it he also argued in the court that

women are incapable of running an agency and are voluntary engaging in relationship the

women are treated as property of the man and man being their masters after that Mr Raj refeered

texts from the sexual piracy created by justice Puttaswwamy with this CJI DIPAK MISRA the

4
Shivi Gupta, 'Adultery As A Ground For Divorce Under Indian Laws' (IP Blog
Leaders, June 30 2018) <https://blog.ipleaders.in/adultery-and-divorce/> accessed 28 January
2021

 
CJI DIPAK MISRA Refused further arguments and request court if they wish to Baan the

adultery law in India or not and further added that should the adultery law be a ground for a

divorce between a husband or wife or not with this the next on the next day MS PINKY

ANAND started with the case of SUBHRAMANIYUM SWAMY in which the court gave the

defamation for society harm but the CJI’S refused the case and stated that the case is not

applicable here as SUBHRAMANIYAM SWAMY case dealt with freedom of speech under

article 19(1) a the CJI refused the case and principles for the case are not applicable here .CJI

asked about the differential impact of adultery why only Men are targeted the law isn’t saving

the marriage life and also creating more chaos in the relationship with Husband and wife ms

Anand thinks that criminalizing adultery makes sense CJI with this point again observed and

asked if they should scrapped the law or not with this Ms ARORA further stated that criminal

law shouldn’t be used to control conduct which can be controlled by civil law hence with this the

conclusion is received and it has been observed that the law was scrapped by CJI DIPAK

MISRA..5

JUDGEMENT OVER ADULTERY :On 27 SEPTEMBER 2018 the

supreme court of India with a bench of 5 Judges scrapped the law of Adultery and stated that in

case of adultery the couples should be given a divorce adultery should be a private wrong

between a man and a women and the reason behind Scrapping was that the law treats husband

as a sole master and the wife is property of the husband the adultery law violates the article 14

and misuse the article15(3) of the Indian constitution the article 14 relates to Right to Equality.

5
, 'Indian Penal Code' (Wikipedia the free Encyclopedia )
<https://en.wikipedia.org/wiki/Indian_Penal_Code> accessed 30 January 2021
whereas article 15(3) studies about that no extra laws should be made for women and children

and everyone should be treated equally in the case of law of adultery the men is the master of

women and women being his property the supreme court found it difficult for the Judgment

during its Preceding s of law and hence it was scrapped by the law and the law became the

ground for divorce between the husband and the wife the case law related to adultery is only

applied to men and only man has right to sue other men in this law the women has no rights to

sue another women with whom the adultery has been done. And hence women is exempted from

it .in many countries this law has been removed whereas in some countries the adulterer (one

who commits an adultery) is punished in the way of death and other similar punishments the

adultery law has many punishments which includes stoning the stoning is a punishment for an

Adulterer in some country where the adulterer Is beaten by stones by some group of peoples until

he dies there are, many more related punishments available also. The origin of adultery came out

of Bible the court termed adultery as an Arbitrary power an Arbitrary power is a power where

the person uses his power in a wrongful manner section 497 only gives right to husband to sue

his wife’s lover while the same right is not imposed on a wife to sue with whom her husband has

committed adultery. Hence the court scrapped the law and gave adultery a ground for divorce

between a husband and her wife . 6

RELIGION AND THE ADULTERY: India is the largest country with many
religions and customs Where the Hindu religion is the largest religion in The country Adultery in

India is seen as different ways according to different religions Hindu Religion is based on

different Customs and which has evolved over a span of time the Hindu religion is seen as 3

perspectives The Vedas, Upanishads, the epic and Puranas The Vedic texts includes the Rig-
6
, 'CODE OF CRIMINAL PROCEDURE (INDIA)' (Wikipedia the free Encyclopedia , 00)
<https://en.wikipedia.org/wiki/Code_of_Criminal_Procedure_(India)> accessed 30 January 2021
Veda, Atharveda and Upanishads different text has different thinking of adultery the adultery in

Hindu religion is termed as a crime We all know that adultery is having a sexual relationship or

having an extra Marital affair after marriage without the consent of the wife or husband of

adulterer(a man who perform adultery) or Adulteress (a women who perform adultery) in Hindu

Religion one who is involved in adultery has to face a lot of public disrespect and disrespect

from the society and also the public Harassment the Hinduism does not support Adultery and is

a criminal offence another text the Vishnu Puranas is one of the text with about 7000 verses in

extent the text is written as ground for different avatars of Lord Vishnu such as Krishna

according to the Vishnu Purana Adultery is seen as that a man should not think incontinently of

another wife for such man will be reborn in future life as a creeping insect when we talk about

other Religion like Islam the punishment for Adultery is RAJM also known as STONING it is a

process in which the public throw stones to the adulterer and the adulteress one who has

committed adultery until the seducer dies the origin of adultery has been there from the bible the

punishment is the capital punishment in the Islamic law and the adultery is termed as a crime in

all of the Islamic countries. Whereas in Christians the divorce procedure is little different the

divorce process is also different according to the Christian law the divorce procedure is

contained under Indian Divorce Act 1869 and the Indian Christian marriage act 1872 a

Christian couple in India can claim divorce with the help of Indian Christian Marriage act

firstly the couple has to obtain a certificate from the church and after that they may even

approach to the court for the divorce for the divorce the husband and wife both should prove

that they have committed adultery whereas the women should also prove about cruellety change
in religion etc . according to the special marriage act of 1954 the adultery should be a ground

for a Divorce and the act is a criminal offence 7

WHY WAS ADULTERY LAW SCRAPPED?

The law of adultery which was enacted in the Year 1860 was challenged by Joseph Shine a

non-resident Keralite was a 41 year old and filed a public Interest Litigation under article 32 of

the Indian Constitution according to the article 32 of the Indian constitution any men who thinks

some of the law which is either irrelevant can appeal to the Supreme court under the article 32 of

the Indian Constitution which studies about the Right To Constitutional Remedies the petition

was filed under this law and challenged the offence of adultery under S497 there were some

people who were not with the support of this law Including the Ruling party i.e. BJP. The people

believes that the abolishing of law of Adultery would have an Impact on the marriage

custom

1. VIOLATES ARTICLE 14: The adultery law was enacted in 1860 and

makes man a master of a women and the women being the property of men the law

violates the article 14 of the Indian constitution according to the Indian Constitution

article 14 studies about the Right To Equality the right to equality means that everyone

should be treated equally and should not be treated on the basis of caste, gender and

Religion and hence every person should be treated equally the law of adultery

irrationally differentiate two genders and gives men an arbitrary power in the law only

men has the power to sue another men and women are exempted from it only men is

7
https://www.scobserver.in/court-case/constitutionality-of-adultery-law/day-2-afternoon-
session-69985f75-3d34-4e0f-8fc7-e0260207f2eb
 punishable and women has no rights to sue another women and only third person that to

men can file a case against a men who has committed adultery .

2. MISUSE OF ARTICLE15(3): Article 15(3) of The Indian Constitution

relates with That no extra laws should be made in Respect to Women and Children and

every one should be treated equally in Respect of adultery only men is punishable and

only the men has all the rights to file a case which disrespected the law of equality and

the misuse of article 15(3) of the constitution in India we all know that Women are not

Happier than the women Britain And America hence the law of adultery law established

in India in the year 2018 and became a civil wrong

ADULTERY AND THE SCHOOLS OF JURISPREDENCE:

Historical school is the school of jurisprudence where it is believed that the laws are made by the

people itself and should be change according to the changing needs of the people the historical

school is also known as the continental school of jurisprudence the school is on the basis of

customs of people which changes according to the need and requirement of the people it

believes that the law is made according to the people and according to their changing customs

the school disrespect the ideas of making of law by the judges while talking about adultery and

the historical school of law we know that adultery is the criminal offence in India and is

punishable which is not accepted by the people , the adultery law was enacted as per the old

customs and traditions of the Indian society with the upgrading of people it is necessary to

change the law and which is related to the Historical school .

Social school the social school states about the societies and it thinks that the laws and societies

are all related to each other sociology is the study about the human behavior and social changes

the school tells us about that the law should be made with respect to society Indian Society is

the oldest society and with many customs there were many jurist of the sociology school one of

them was Montesquieu  he is a French philosopher he believes that the legal procedure is

prepared on the basis of the society and cultures of different societies while comparing the

adultery with the social school we know that the adultery is a criminal offence in respect with the

crime committed by men The law of adultery enacted by the law commission of India in the

year 1860 punishes only the adulterer and the adulteress is exempted from it and is the victim of

the case while the adulterer is the seducer of the case the Societies believes that for performing

the adultery only men can do it and the Societies think that the man is only master of the women

and women is the property of man hence we can compare that the adultery law is related to the

society .

ADULTERY IN INDIA IS STILL PUNISHABLE: In India the

adulterer(a male person who committees adultery ) and adulteress(a female person who

committees adultery ) are seen as thief in the eyes of the general public . There are some

marriages still where some people have other sex partners other than their own husband or wife

and with the consent of their husband or wife in this case the adultery is not an criminal offence

and is legal we all know that the times have changed people have been moved from 19th century

to the 21st century and people are getting more educated with the increase in Education the

punishment like STONING for the adultery has somehow stopped but not the public
harassment adultery is still punishable because it leads to breakdown of marriages in India and

different parts of the world the adultery law which was drafted in the year 2018 gives adultery as

an offence and made it a ground for a divorce the Divorce which is not accepted by the laws of

Hindu Marriage act and hence is punishable .

REPORT AND ANALYSIS OF RESEARCH PAPER: The aim of

research paper is to find out the adultery law in India and how the adulterer and the adulterer

and the adulteress are treated after committing an adultery in India an adultery is an offence and

a crime in views of public the research paper has been done on the basis of secondary basis

through the use of pre research paper which has already being made my aim to choose the topic

is to find out what is the law of adultery who and how does it came into Force how does it

scrapped who Challenged the law The research covered all these points and also how does

religions treats adultery . the research paper studies about The whole concept with the

judgments and punishments .

CONCLUSION : This research paper studies regarding the adultery law in India and

how does it have impact on different religions and cultures the research paper studies about the

Arguments during the scrapping of law and about the judges decisions about the in this research
paper we have also compared the schools of law and how does the Historical school and the

social school related to the term of adultery in India .