THE NEED FOR GENDER-NEUTRAL ADULTERY LAWS IN INDIA

Ananyaa Varma, Bennett University

ABSTRACT

“In law a man is guilty when he violates the rights of others. In ethics he is guilty if he only
thinks of doing so.” – Emmanuel Kant

The concept of adultery, has always been a matter of conflict as it oscillates between the
societal pressure of having conventional and moral values on one hand, and individual
happiness on another. It is this undertaking that has been subject to decriminalising in 2018
by the hon’ble Indian judges in the landmark judgement of Joseph Shine v Union of India (1)
and marked adultery as a civil offense, only amounting as a ground for divorce.
Decriminalising adultery and delivering the landmark judgement in 2018 had its
repercussions as it altered the social fabric of the society and no new gender-neutral grounds
prohibiting this element which promotes disloyalty and harms the sanctity of marriage and
integrity of the society as a whole, were introduced.

The object of my study is to achieve the realisation of the existence of a gap in the judicial
system when it comes to the concept of adultery, to analyse the verdict of Joseph Shine v
Union of India and provide with the counter-arguments, to introduce new measures along
with exceptions that should be undertaken which could help smoothen the disruption caused
due to the act of adultery at a macro-level, along with concentrating on gender neutral laws
that take a step towards creating an egalitarian India.

1. Joseph Shine v Union of India (https://indiankanoonorg/doc/42184625/)

METHODOLOGY

The methodology would be doctrinal that relying on judicial decisions and statues as primary
source, and books, journals and newspaper articles as secondary sources for the study.

INTRODUCTION

The concept of family law in India, evolved for the purpose of maintaining and preserving the
sanctity of the institution of marriage in society, where values and morals prevail over
individualisation and marriage is given a sacred position, bound by mutual trust, as well as
respect. Adultery in a monogamous marriage not only breaks these provisions but also result
in mental trauma for the victim as the individual has been wronged and awaits justice.
Adultery can also have long-lasting impact on society as the youth is discouraged to get
married due to the consequences and increasing rate of divorces caused in society due to
adultery. According to research (2), divorce rate in India is steadily increasing and adultery has
been a main cause for this in about 28.3% of the marriages. According to the statistics of
Dhaka City Corporation ranging from 2010-2016, the total cases of divorce had amounted to
52,000 where the basis of it was due to the commission of infidelity. Further, as per the
American Psychological Association, abut 20-40% of the divorces in the United States were
caused due to infidelity.

HISTORY OF ADULTERY LAWS IN INDIA

To control this and prevent infidelity, the Indian Penal Code, 1860 came up with Section 497
with the aim of criminalising the conduct of adultery. This particular provision was backed
by Christian morality emerging from the biblical times which stated that adultery was not a
sin committed against man, but an act committed against God and the punishment for this
was not to acknowledge redressal to the aggrieved but to follow the command of God. In
Israel, the biblical law commanded death penalty in response to the commission of adultery
. It stated that if a man is indulged in sexual intercourse with a married woman and without
(3)

the consent of her spouse then this act of the man amounts to the commission of adultery and
is punishable with imprisonment up to five years, or imposition of fine, or both.

2. Yesmen N and Hasan Nahid MM, “The Condition and Consequences of Adultery in Bangladesh”
(2020) 03 Scholars International Journal of Law, Crime and Justice 32
3. Phillips, A. (1981). Another Look At Adultery. Journal for the Study of the Old Testament, 6(20),
3–26. https://doi.org/10.1177/030908928100602001
This particular provision, although intended with the purpose of controlling widespread
mental trauma in society and stabilising family life, aptly backfired as it gravely objectified
women and portrayed them to be a victim while unfairly penalising men and acquitting
women indulging in the same activity. The repealed section stated-

“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.”

2. Yesmen N and Hasan Nahid MM, “The Condition and Consequences of Adultery in Bangladesh”
(2020) 03 Scholars International Journal of Law, Crime and Justice 32
3. Phillips, A. (1981). Another Look At Adultery. Journal for the Study of the Old Testament, 6(20),
3–26. https://doi.org/10.1177/030908928100602001
INCONSISTENCY AMONG THE REPEALED SECTION

This section proved to be inconvenient for various reasons. In Yusuf Aziz v State of Bombay
(AIR1951Bom470), Section 497 was challenged in the Supreme Court for the first time. The
grounds for the same were to challenge Article 14 and 15 of the Constitution. This particular
provision disregarded the fact that women could also be adulterous and solely penalised men.
However, the judges held that Article 15(3) ‘justified’ the section by stating that certain laws
need to be made in order to protect women. Despite this, Section 497 ironically forbid
women from filing a complaint.

In V. Revathi v. Union of India and Ors (AIR1988SC835), the validity of Section 497 was
once again upheld as the judges stated in light of this section, the law does not allow either
the offending husband or the infringing wife to bring a case against the other for being
unfaithful to them. And due to this, neither the husband nor the wife is at a more
advantageous position.

In the case of Sowmithri Vishnu v. Union of India and Anr (AIR1985SC1618), the Court
stated and upheld that the wife is a victim in cases of adultery and cannot be considered as a
perpetrator.

Chief Justice (then) Dipak Mishra and Justice D Y Chandrachud opined in Joseph Shine v
Union of India that these laws go against the egalitarian notion of our country and perpetuate
the archaic thought of women being the property of men. It was also stated that women were
unable of being a perpetrator while always being thought of as a victim. India’s ruling BJP
government had opposed this petition brought forward and stated that the purity of the
institute of marriage will suffer if adultery laws are softened. Furthermore, it was also said
that India is a nation rich in culture, traditions and values and hence, should give ‘paramount
importance’ to the institution of marriage.

ARGUMENTS AS TO WHY NEW ADULTERY LAWS ARE REQUIRED

Even though both the perspectives find their own place in the debate of morality,
criminalizing ‘immorality’ and to what extent should law interfere in the lives of its subjects,
it is equally important to find a middle ground on the topic that polarizes India because of this
step undertaken.
India, along with various other countries, boasts having laws on domestic violence, restitution
of conjugal rights, right to monogamy and is also getting closer to recognizing marital rape (4)
as an offence as well. If these laws that govern the behaviour of a husband and a wife in the
spatial context of a household, and protect the trauma of spouses caused by the action of their
partners, then why should a violation as big as adultery be decriminalized?

In the landmark case of Joseph Shine v. Union of India, the bench consisting of eminent
personalities such as Hon’ble Justice Dipak Mishra and Hon’ble Justice D.Y Chandrachud
opined that a system where women are disgraced and treated as chattels is a system inviting
‘the wrath of the Constitution’. The landmark judgement was however, superficially feminist
in its approach despite establishing how women should not be merely treated as an object
belonging to their husbands and should have locus standi in cases where their dignity has
been compromised. Justice D Y Chandrachud also reflected upon the consequences of
decriminalising adultery and stated that, “decriminalising adultery is not licensing adultery” (5)
and held that adultery should be treated as a civil wrong and be determined as a ground for
the dissolution of marriage or divorce.

Adultery is stated under ‘grounds of divorce’ which ensures the right of divorce,
accompanying alimony.

4. Sharma N and Sharma S, “Supreme Court Takes Cognizance of Marital Rape under Abortion Law” (India
TodaySeptember 29, 2022) <https://www.indiatoday.in/law/story/supreme-court-abortion-law-medical-
terminal-act-marital-rape-is-rape-2006148-2022-09-29> accessed December 19, 2022
5. Mohanty S and Menon M, “India's Top Court Decriminalizes Adultery in Landmark Judgment”
(ReutersSeptember 27, 2018) <https://www.reuters.com/article/us-india-court-adultery-
idUSKCN1M71FW> accessed December 19, 2022
Alimony is, once again a disputed and a gender-biased concept which favours women and
leave men in the dark pertaining certain situations (6). If gender-neutral adultery laws do come
into place, then a fine imposition could be a possibility for anyone claiming to have been
victims of infidelity be it a man or a woman, as opposed to the previous gender-biased laws.
This will also give men a sense of security which was lacking in the previous judgement and
women will not solely be viewed as mere victims.

Further, the concept of alimony is fallacious in its nature as despite the direction of the court,
men refuse to pay alimony to their former partners and due to this, women are left financially
insecure knowing that filing another appeal could take years to fruit. Some men also
discourage their wives to pursue a career while they are married consequently indulging in
adultery (7), leaving nothing for their wife’s support apart from a divorce case, the settlement
for which may or may not be efficiently culminated and could take years to conclude. In a
case like this, adultery laws could play a major role where once the accusation has been
established, the accused will be tried under criminal law with an imposition of fine or
occasional imprisonment if the damage caused is proliferate, along with negotiating
settlement terms on the basis of divorce.

Legal theorists such as Sir Henry James Maine and Oliver Wendell Holmes were of the
opinion that authorizing law for the ‘personal vengeance’ of an aggrieved individual played
an integral role in the burgeoning of the institution of law . This transfer of responsibility
(8)

for a) executing justice and b) being a body of responsibility for providing a certain
psychological satisfaction to the victim by ensuring that the guilty does not go unpunished is
inherently the role and the purpose of law. If providing relief by countenance of principles
such as restitution of conjugal rights falls under the ambit of Indian justice, then why not
providing relief for something as demoralising as adultery?

Even though the court has appreciatingly attempted at staging an equal world for both men as
well as women through this verdict, it must be noted that grave consequences of
decriminalising adultery and not following it up with equal implementation of the provision
were ignored. Even after the decriminalisation, women continue to be treated with indignity
as men are freely allowed to commit adultery without envisaging any ramification apart from
divorce.

6.. Times INY, “The Paradox of Alimony for Men” (Deccan HeraldNovember 1, 2021)
<https://www.deccanherald.com/opinion/the-paradox-of-alimony-for-men-1046188.html> accessed
December 19, 2022
7. Sharma M, “13 Reasons Why Indian Wives Apparently Tolerate Cheating Husbands” (Youth Ki
AwaazJanuary 30, 2019) <https://www.youthkiawaaz.com/2019/01/top-13-reasons-why-indian-wives-
tolerate-extra-marital-affairs-of-their-husbands/> accessed December 29, 2022
8. Jeremy D. Weinstein, 'Adultery, Law, and the State: A History' (1986) 38 Hastings LJ 195
The only remedy granted is the dissolution of marriage which also acts as a bane for most
women in India without any financial backing as they have already been a victim of adultery,
traumatised by the life of it and now after seeking dissolution which is the only possible
nostrum, they are left helpless and solely on support of the provision of alimony which would
take months or even years to confirm or may in fact be well denied even after the mandate of
the court. Contradicting the words of Hon’ble Justice D Y Chandrachud, decriminalising
adultery has indeed served as a licence for committing infidelity as Gleeden, an extra-marital
affair website has claimed how its active membership had increased by a margin of 734% in
India ever since adultery was decriminalised (9. With dissolution of marriage being the only
repercussion, and it not even being an option for women dependant on their husbands for
livelihood, it invalidates the guilt of men who cheat, knowing that repercussions are
unprecedented.

On the other hand, statistics (10)

prove that women in India are more likely to be infidels than
men, with 56% of married women cheating on their partners and seven out of ten women (11)

cheating on their spouses. This figure proves to be even more detrimental to society as males
may ponder over the DNA of their baby which would lead to further aggravated
psychological issues that can be adequate to destroy a family.

In the long term, the perpetrator can have various impacts on the household environment
which would directly impact the offspring. The extent to which a spouse was away with their
lover while neglecting the children if the affair took up a significant amount of the spouse’s
time may create abandonment issues or may leave the children feeling unloved or unnurtured.
Secondly, if the children are well aware about their parent being an infidel without the threat
of divorce, then this may create an impression of normalcy or acceptance for an act which

9. Dhawan H, “Increase in Adultery in India, Says Survey - Times of India” (Increase in Adultery in India, says
surveyNovember 7, 2019) <https://timesofindia.indiatimes.com/home/sunday-times/increase-in-adultery-in-
india-says-survey/articleshow/71959756.cms> accessed December 19, 2022
10. Jha L (55% married Indians have cheated on their spouses, most are women: SurveyFebruary 26, 2020)
<https://www.livemint.com/industry/media/55-married-indians-have-cheated-on-their-spouses-most-are-
women-survey-11582712240534.html> accessed December 19, 2022
11. Ians (7 out of 10 women cheat on spouses in India: SurveyApril 23, 2019) <https://www.business-
standard.com/article/news-ians/7-out-of-10-women-cheat-on-spouses-in-india-survey-
119042301083_1.html> accessed December 19, 2022
defiles the sanctity and the conscience of the institution of marriage and would perpetuate this
newly built tradition into the next generation.

Further speaking, the investment of finance and capital assets on the perpetrator’s paramour
in furtherance of the affair also has detrimental impact on the stability of a household . The
(12)

cost that comes with adultery can be dealt with during the property settlement in the divorce.
Despite this, criminalising adultery and providing an alternative for a spouse (specially
dependant women) instead of dissolution of marriage where the victim can claim
compensation along with aggravated compensation for the repeated offence must lead to
comparative financial stability in addition of an optional alimony.

Going back to Joseph Shine, one of the issues to be tackled were whether criminalising
adultery would be an encroachment by law upon an individual's domestic sphere. It was
discussed that a crime is an act or an offence which harms the society at large whereas
adultery is an act which tantamount to entering into the private realm and hence, should not
be treated as a crime. The question raised here is whether the discrimination between
domestic violence which also constitutes as a private offense but is recognized as crime, and
adultery, is based on the undermining of mental trauma.

The similarity between both domestic violence as well as adultery results in upheaval, failure
of individualistic morals, adverse impact on offspring as well as causing grievance to the
other party and yet adultery has no consequences apart from dissolution of marriage.
Although domestic violence is diabolic in nature and results in physical injury as well, it is
important to consider adultery in a similar sphere as crime because of the impact it holds on
the victim. It can cause post-traumatic stress disorder, depression, chronic anxiety, along with
paranoia of others even after a long time after the event (13)
. Hypertension is one of the
symptoms which can result in more serious diseases and can destroy the mental along with
the physical health of the victim.

Further discussing the issue, the Supreme Court also stated (14)
how infidelity committed
cannot be classified as a crime as the action takes place between two ‘consenting individuals’
which makes it a victimless crime. Counterarguing this, it must be stated how there is a clear
victim in the whole process of committing the act of adultery and that is the spouse of the
9. Dhawan H, “Increase in Adultery in India, Says Survey - Times of India” (Increase in Adultery in India, says
surveyNovember 7, 2019) <https://timesofindia.indiatimes.com/home/sunday-times/increase-in-adultery-in-
india-says-survey/articleshow/71959756.cms> accessed December 19, 2022
10. Jha L (55% married Indians have cheated on their spouses, most are women: SurveyFebruary 26, 2020)
<https://www.livemint.com/industry/media/55-married-indians-have-cheated-on-their-spouses-most-are-
women-survey-11582712240534.html> accessed December 19, 2022
11. Ians (7 out of 10 women cheat on spouses in India: SurveyApril 23, 2019) <https://www.business-
standard.com/article/news-ians/7-out-of-10-women-cheat-on-spouses-in-india-survey-
119042301083_1.html> accessed December 19, 2022
perpetrator who has invested their assets, capital, time, and belief in their partners. There is a
consequence

of committing adultery and it leads to emotional distress in the partner along with their
children deeply affected by the act. Hence, it is absurd to state that adultery is a victimless
crime.

A potential sequel of criminalising adultery could lead to increased rates of divorce, as the
accused would prefer to dissolve their marriage as opposed to end up with a hefty penalty or
a probable term of imprisonment. However, the most common causes of adultery (15)
have
been established as boredom, not feeling appreciated enough and wanting variety and it
seems rather eccentric that a rational individual would indulge themselves in the disarray of
alimony and abandonment of family life and responsibility to solely chase a temporary affair.

Lastly speaking, the purpose of delivering the verdict in Joseph Shine v Union of India was
not to tackle the conundrum of adultery but to resolve the issue of the biased provision which
violated Article 14 of the Constitution and discriminated between men and women. The
purpose of the verdict was not to contemplate over adultery being a crime but to take a step
towards an egalitarian society. However, this act was incomplete as no provision was made to
bridge the gap between an equal society and maintaining the sanctity of marriage.

However, it is further believed that there should also be certain exceptions to this gender-
neutral clause that impose a penalty on the party that has cheated. In case of a loveless
marriage or a marriage surrounding violation of human rights by the ‘victim’, then the bearer
of domestic torture should fall under the exception clause as fulfilling basic rights and desires
should also be acknowledged.

12. Nelson EC, “How Adultery Matters and Doesn't Matter in Minnesota Divorce” (Adultery in Minnesota
Divorce) <https://www.minnesotadivorce.com/articles/adultery/> accessed December 19, 2022
13. Moore M, “Long-Term Psychological Effects of Infidelity: What the Research Says” (Long-Term
Psychological Effects of InfidelityOctober 29, 2021) <https://psychcentral.com/health/long-term-
psychological-effects-of-infidelity#the-effects> accessed December 19, 2022
14. - DRS (Case analysis : Joseph Shine v. Union of India August 25, 2020) <https://blog.ipleaders.in/case-
analysis-joseph-shine-v-union-india/#Issues_raised> accessed December 19, 2022
GLOBAL DEBATE

Adultery is a widely debated topic in the world that encompasses multidisciplinary subjects
such as jurisprudence, sociology, ethics etc. which vary from country to country. Some of the
countries which recognize adultery as a crime are Indonesia, Iran, the Maldives, Nepal,
Pakistan, the Philippines, United Arab Emirates, Algeria, Democratic Republic of Congo,
Egypt, Indonesia and Morocco. The states of USA which identify infidelity with crime are
New York, Arizona, Minnesota Florida, Illinois, Kansas, Massachusetts, Idaho, Oklahoma,
Michigan, Utah, Wisconsin, Mississippi, South Carolina, Georgia, North Carolina and
Alabama (16).

In the state of Alabama, the perpetrator along with his or her paramour is fined with a sum of
$100 for a first-time offence and $300 for a repeated offence and may either be sent for hard
labour or may be imprisoned. In New York, the amount of fine sanctioned is $500 or 90 days
of imprisonment.

In Indonesia, penalty for adultery also includes cohabitation for 6 months.

The countries where adultery is decriminalised are Finland, Germany, France, UK, Belgium,
Spain among others. According to statistics (17) these countries also rank the highest in having
the most amounts of adulterous marriages. However, Thailand is the only country that ranks
first in the list despite making adultery illegal in the country but as per research, one of the
main reasons for this is the increased sex tourism widely prevalent and accessible in the
nation (18).

In Judaism, adultery is considered to be one of the gravest sin to be committed as recorded in

the Ten Commandments and “Holiness Code” of Leviticus 20. The Book of Genesis (20:9)
refers to adultery as the “great sin” and is also called ‘ha’averah’ (the sin par excellence) by
Talmud. As per the Rabbinic tradition, adultery along with two other sins should be avoided
even at the ‘pain of death’. (19)

In Islam, the Holy Qur’an dictates:

15. Pawlawski A, “8 Reasons Why People Cheat” (TODAY.comJanuary 15, 2019)

<https://www.today.com/health/infidelity-8-reasons-why-people-cheat-become-unfaithful-t121512>
accessed December 21, 2022
16. Povey JR, “Is Adultery Still a Crime in the United States?” (MediumSeptember 12, 2022)
<https://jenniferrpovey.medium.com/is-adultery-still-a-crime-in-the-united-states-62ea8d4bf6bb#:~:text=In
%202022%2C%20adultery%20by%20some,not%20always%20defined%20the%20same.> accessed
December 21, 2022
17. “Which Country Ranks Top on Adultery? Here Is a List of Top 10” (India TodayFebruary 20, 2015)
<https://www.indiatoday.in/mad-mad-world/story/which-country-ranks-top-on-adultery-here-is-a-list-of-top-
10-241286-2015-02-20> accessed December 21, 2022
“The woman and the man guilty of unlawful sex (adultery or fornication), flog each of
them with a hundred stripes; let not compassion move you in their case in a matter
prescribed by Allah if ye believe in Allah and the Last day; and let a party of the believers
witness their punishment”. (24:2)

There is a prescription of a 100 lashes for the perpetrator, be it a male or a female, married or
unmarried.

Hinduism also shares common views about the morality surrounding adultery. In Shanti
Parva of Mahabharata (Section CLVIII), Bhishma and Yudishishtira can be seeing sharing a
dialogue where Bhishma refers to adultery as a ‘major sin’ and also recommends punishment
for the same. The Hindu Dharmashstras also forbid adultery (20)
. Sikhism also refers to
adultery as not just an act that threatens mutual trust but also sinful and blasphemous. (21)

Buddhism states that the act of adultery results in transgression that proliferates suffering and
forms the third out of fifth precept of Buddhist morality. It is defined as an act that harms
oneself along with others. (22)

Hence, the oldest and the most prevalent religions of the world discourage the act of adultery.

12. Nelson EC, “How Adultery Matters and Doesn't Matter in Minnesota Divorce” (Adultery in Minnesota
Divorce) <https://www.minnesotadivorce.com/articles/adultery/> accessed December 19, 2022
13. Moore M, “Long-Term Psychological Effects of Infidelity: What the Research Says” (Long-Term
Psychological Effects of InfidelityOctober 29, 2021) <https://psychcentral.com/health/long-term-
psychological-effects-of-infidelity#the-effects> accessed December 19, 2022
14. - DRS (Case analysis : Joseph Shine v. Union of India August 25, 2020) <https://blog.ipleaders.in/case-
analysis-joseph-shine-v-union-india/#Issues_raised> accessed December 19, 2022
CONCLUSION

Gender-neutral adultery laws in India, which can be filed by any citizen asking for equity
with clean hands, should be enforced as it will preserve the sanctity of marriage and will
discourage any party to cause tribulation and damage to their spouse. It will also establish
grave consequences of being indulgent in an extra-marital affair and will rightly contribute to
the future of the aggrieved by awarding them compensation or providing them with an
alternative other than divorce. At the same time, it will also recognize those who have been
victim to domestic suffering and a part of a loveless marriage and will exclude them from this
provision.

Hence, the imposition of adultery laws in India will take a step forward towards assisting
dependant women, recognizing men as being victims rather than just perpetrators and provide
them justice along with imposing restrictions on an element which harms the sanctity of
marriage and promotes loyalty as well as an option other than divorce for the aggrieved while
at the same time providing justice and promoting loyalty.