Impact of Adultery Laws on Gender Equality

Vrinda Bhardwaj
2nd year
BBA LLB
O.P Jindal Global University

INTRODUCTION
Adultery is voluntary sexual intercourse between a married person and a person who is not
their spouse. Section 497 according to the Indian Penal Code, 1860 says 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”. This section was a heavily criticised and challenged provision which ultimately
resulted in the Supreme Court declaring the 156-year-old adultery law unconstitutional in
2018. In Joseph Shine v Union of India (2018)1, the judges stated in their judgement that it
was violative of the right to equality and was an outdated law and there were no reasons to
continue the law as it does not serve the intended purpose any longer. The law was
considered to be anti-woman because it treats women as mere objects. According to the
section, a male can engage in sexual intercourse with a woman without her consent but if the
woman’s husband approved of the act, it wouldn’t be considered as a crime.

ANALYSIS
Section 497 talked about how the husband has the sole authority to bring charges against the
partner with whom his wife committed adultery. While the husband may apply for divorce
from his wife on the grounds of adultery, the wife does not have the same legal ability to
prosecute the woman with whom her husband committed adultery. The law also does not
confer the legal authority on the wife to hold her husband accountable for adultery. When a
man engages in sexual intercourse with a married lady without her husband’s permission and
it does not constitute rape, the section penalizes the man. The section does not deign to
punish the unfaithful wife and only provides punishment for the man who was engaged in
adulterous activities with the married woman without her husband’s consent. It makes a
distinction between the consent given by an unmarried woman and the consent given by a
married woman without her husband’s consent. It does not punish a married man for having
sexual intercourse with an unmarried woman, a widow, or even a married woman when her
spouse consents to it. Interestingly, the section expressly states that the unfaithful wife cannot
be penalized even as an abettor to the crime. The offence is committed against the husband of

Joseph Shine v Union of India [2018] SC 1676

1
the wife and not against the wife. The punishment for the man committing such an offence
could have been to be imprisoned for five years or more and could have also been asked to
pay a fine.

Joseph Shine v Union of India, 2018

The petitioner (Joseph Shine) filed a PIL under Article 32 of the constitution which
challenged the constitutionality of the offence of adultery under section 497 read with section
198(2) of the CrPC. However, the Centre contended that adultery is a deliberate conduct that
violated the integrity of marriage and sexual fidelity. It is an activity carried out voluntarily
and intentionally knowing full well that it would be detrimental to the spouse, kids, and
family. The Court examined the accuracy of the rulings in Yusuf Abdul Aziz2, Sowmithri
Vishnu3, and V. Revathi4 which had previously maintained the constitutionality of Section
497.
Following hearing arguments from both sides, the Supreme Court, sitting in a bench presided
over by Deepak Mishra, the Chief Justice at the time, declared that Section 497 of the Indian
Penal Code was unconstitutional and overturned it. The court ruled that the law breached
Articles 14 (equal protection of laws) and 15 (non-discrimination on grounds of sex) of the
Constitution because it was based on gender stereotypes. The Criminal Procedure Code's
Section 198(2), which permitted a spouse to file charges against the man his wife had an
adulterous relationship with, was likewise overturned by the court. While delivering the
ruling, Chief Justice Deepak Mishra noted that any law that saw the husband as the wife's
master and treated women unequally could not be regarded as constitutional. While
addressing the issue of establishing a new, gender-neutral adultery offence, the Supreme
Court stated that by applying criminal punishments on interpersonal relationships, it would
violate the right to privacy guaranteed under Article 21 of the Indian Constitution.
The decision of the Supreme Court to overturn the antiquated law was welcomed. From
lawyers to activists, there was a consensus that decriminalization was required to free women
from the bonds of “patriarchal control.” All the judges in their pronouncements agreed that
in the context of family and home, every woman has the right to personal autonomy, bodily
integrity, and individual choice.
While the decriminalization of adultery is indicative of a shift in the way society views
individual rights and freedom, the judgement is not without its critics. Opposing opinions
contended that the removal of the provision would undermine the institution of marriage and
could be detrimental to society. They argue that in the absence of such a provision, it would
encourage infidelity and make it more challenging for aggrieved spouses to pursue legal
remedies in cases of adultery.

CONCLUSION

2 Yusuf Abdul Aziz v. State of Bombay [1954] SCR 930

3 Sowmithri Vishnu v. Union of India [1985] SCC 137
4 Vishnu Revathi v. Union of India [1988] 2 SCC 72
While the tenets of Hinduism and in turn the Hindu Marriage Act of 1955 believe marriage to
be a sacred institution that should be protected and prevented from breaking down, however,
that as a form of an interpersonal relationship with no interference from the state, the choice
to penalize the offending spouse in cases of adultery should lie to the discretion of the
husband or wife. It is unnecessary to make provisions in criminal law that aim to regulate
personal and private contracts between two private citizens such as marriage. When Section
497 was enacted, there were no personal and matrimonial laws in place, unlike the codified
laws that exist today. Making adultery an offence and restricting it to men alone served to
deter men from taking advantage of women and from engaging in sexual activity with the
wives of other men. The personal laws of today are equal and efficient and through their
provisions encourage women to establish their own identity in society and break out from the
antiquated view of being their husbands’ property. There is no longer any use for Section 497
in our society and will always stand as inadequate and irrelevant.

REFERENCES

● Apoorva Mehta, Law of adultery and its absurdity Legal Desire Media and Insights (2021),
https://legaldesire.com/law-of-adultery-and-its-absurdity/

● Adultery in India, Legal Service India - Law, Lawyers and Legal Resources,
https://www.legalserviceindia.com/legal/article-6574-adultery-in-india.html

● Khadija Khan, Why adultery was struck off IPC, and why a House panel wants to make it a
crime again The Indian Express (2023),
https://indianexpress.com/article/explained/explained-law/adultery-ipc-bns-house-9027529/

● 2023 Ambika Pandit / TNN / Oct 27, Rights activists divided on idea of reintroducing
adultery as gender neutral offence: India News - Times of India The Times of India,
https://timesofindia.indiatimes.com/india/rights-activists-divided-on-idea-of-reintroducing-
adultery-as-gender-neutral-offence/articleshow/104736944.cms