ADULTERY LAW AND ITS UNCONSTITUTIONALITY

GAURAV LALL

UNITED WORLD SCHOOL OF LAW, GANDHINAGAR

BBA LL.B. (HONS.)

1ST YEAR

Mail Id- gauravlall2000@gmail.com

9830573547

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 ADULTERY LAWS AND ITS UNCONSTITUTIONALITY

INTRODUCTION

Historically, adultery is regarded as a serious offence, even in the religious scriptures it had
been treated as a strict conduct. Many historical analysis revealed that depending upon the
factors, different factors reveal the permission and prohibition of sexual relationship which is
governed by Sexual morality. However, adultery was also observed as a threat hampering the
marital bond by invaded stranger. It is also known as “extramarital affair” which is being
done voluntary through physical sexual intercourse with any other person other than his or
her spouse. The actual definition of adultery is being defined under Section 497 0f the Indian
Penal Code (IPC) but it might vary in different jurisdictions. 1 Mainly, three important
elements are necessary to justify the adultery: (i) the husband or wife having sexual
intercourse with the opposite sex (ii) One or both of them must know the living spouse (iii)
voluntarily committed. The theme is about the sexual intercourse with others, against the
state of being married. In India, the legal provision under penal statutes signifies the ‘female
adultery’ where the section only considers adultery if it does occur with marital status
woman. Sections 497 of the IPC 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,
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 a case, the wife shall not be punishable as an
abettor.”
In India, Section 497 of IPC had been criticized by the citizens since its commencement
however in some of the European countries the adultery had been ceased through mild
punishments. The cases related to adultery had been governed differently in various society.
The validity of Section 497 of IPC had been challenged many of the times on the grounds of
constitutionality and philosophical ground. 2
REASONS AND CONSEQUENCES BEHIND ADULTERY

Recently, surveys have revealed the statistics related to adultery were 57% of men and 54%
of women have been unfaithful to their partners. Most, of the people admitting adultery due

1
Introduction-to-adultery; <https://journals.sagepub.com/> (last accessed on July 2, 2020).
2
Criticism-against-Section-497 of IPC; <http://www.legalservicesindia.com/> (last accessed on July 2, 2020).

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to the lack of sexual intimacy which amounted to 65% and 20% are claiming the lack of
emotional side of their relationship. Within any relationship, adultery can occur at any time
but accordingly most of the time it happens after two years of marriage. Some of the most
potential and probable reasons are Marital Unhappiness which is one of the most common
reason for adultery as most of the men and women might not be happy with their current
marriage. However, many of the spouses might not love them, fails to show clear attention or
listen to them. Due to these reasons, many wife or husband starts cheating each
other. Boredom, which is also a triggering way towards adultery. The initial attraction of the
unexcited spouse excite to engage in adulterous acts with another person. Most, of the times
the predictions of husbands and wives become dissatisfied in the familiar marriage and they
began to stimulate elsewhere. Sheer Narcissism, another cause of adultery as even an
exciting and happy marriage is not enough for a narcissist. The spouse might feel obligated to
be loved and desire by more than one husband or wife. Therefore, when the opportunity
presents itself the narcissistic spouse might pursue extramarital affairs or cheat the present
husband or wife. Eventually, adultery sometime gets motivated due to lack of sexual
satisfaction with the current spouse. The spouse might generally love each other, yet they
can cheat on them because they believe that extramarital relation can satisfy more than their
present husband or wife.
Adultery is like a hurricane when it hits the land then everyone blows off in its path.
Similarly, when it hits the family then the discovery of affairs starts. Adultery which also
violates everything build with the partner in their relationship during their marital status.
Many of the marital relations reveals to fatal consequences of adultery likewise, loss of trust
and intimacy between the spouse. The unfaithful spouse desperately needed that freedom to
be accepted and appreciated by themselves. They didn’t want to pretend to stay within certain
mould in today’s world and expect the rules chosen to create with a new partner. The loss of
pretending in the marital relationship must be identified and repaired. Divorce which is one
of the most common grounds of adultery which can have a devastating impact among the
spouse. Many of the persons can participate in an extramarital affair at some point during
their married life leading to divorce after adultery. The depth of betrayal and emotional affair
due to adultery can also lead to divorce which is hard to put behind. Guilt and shame are the
most important components of adultery which might affect the spouse’s dignity among the
society. When adultery was discovered in a marriage, and brought out in the open by the
couple, usually there was an overt or covert agreement hide the fact from others the others in
the society. Most of them looked at this as a “black mark.” Therefore, adultery closest to

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impossible to resolve shatters the most basic foundation of trust and yet cheating has also the
power which can collapse a strong bonds relationship.
BACKGROUND OF SECTION 497 OF INDIAN PENAL CODE

Section 497 of the Indian Penal Code came under the purview of the Court several times in
the past but the Supreme Court held Section 497 as valid. Many of the time before where the
question has arisen on the Constitutional validity of Section 497 of IPC and Section 198 of
CrPC.
The issue began with the case of Yusuf Abdul Aziz V. State of Bombay, 1954 3 on trial for
adultery challenged Section 497 of Indian Penal Code by arguing that this Section is
inconsistent to Article 14 and 15 of the Indian Constitution. After losing the case in Bombay,
he approached the Supreme Court (SC) arguing that Sec 497 is being violated by the
fundamental rights of Article 14 and 15 in the Indian Constitution. By assuming the offence
of adultery he reveals that a man can only be committed for the offence but the wife will not
be punished even as an abettor. Some of them have argued that this gives a license to women
to commit adultery.
The SC observed Section 497 of IPC is not the power under Article 14, 15 and 21 of the
Constitution on the ground that it is only the man, who is held liable for adultery and not the
wife with whom adultery is committed. The wife is saved from the purview of the section and
is not punished as an abetter. The Court further observed that sex is a reasonable and sound
classification accepted by the Constitution, which provides that State can make special
provisions for women and children vide article 15(3) of the Constitution.
In the case, Sowmithri Vishnu V. Union of India, 19854 the SC held that the offence of
adultery is being retained as a crime committed by a man against another man. The SC also
rejected the argument that unmarried women should be brought under the purview of the
adultery law.
In the case, V. Revathi V. Union of India, 19885 the SC observed that adultery law was a
shield rather than a sword. The Court ruled that the existing adultery law did not infringe
upon any Constitutional provision by restricting the extent of Section 497 of IPC to men.

UNCONSTITUTIONALITY OF ADULTERY

3
Yusuf Abdul Aziz V. State of Bombay, 1951(53) Bom LR 736 (last accessed on July 3, 2020).
4
Sowmithri Vishnu V. Union of India, 1985 SCC 137 (last accessed on July 3, 2020).
5
V. Revathi V. Union of India, 1988 SC 835 (last accessed on July 3, 2020).

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Section 497 of IPC gave a husband the exclusive right to prosecute the man who performed
adultery or sexual intercourse with his wife. A similar right was not conferred on a wife to
prosecute the woman with whom her husband has committed adultery. Secondly, the
provision did not confer any right on the wife to prosecute her husband for adultery. Section
198(2) of CrPC allowed a husband to bring charges against the man with whom his wife has
committed adultery.
The SC on 27th September 2018 in the case of Joseph Shine V. Union of
India the judgement scrapped the 158-years old adultery law by providing the cognizance of
a better initiative, as it struck down the Section 497 of IPC and Section 198(2) of CrPC as
both the Section makes adultery a punishable offence.6
Facts of the Case
Joseph Shine, the hotelier challenged the constitutionality of section 497 of Indian Penal
Code. The core reason behind this petition was to shield Indian men from being punished for
extramarital relationships by abettor women or their husbands. Petitioner’s close friend in
Kerala committed suicide after a women co-worker made malicious rape charge on him.
Further, Section 497 is a malicious occurrence of sexuality unfairness, authoritative power
and male patriotism. The traditional framework in which section 497 was drafted, is no
longer applicable in modern society.
A three-judge bench was headed by CJI Dipak Mishra which was afterwards referred to the
five-judge constitution bench. The bench comprises of CJ Dipak Mishra, and Justices R.F
Nariman, A.M Khanwilkar, DY Chandrachud, and Indu Malhotra.
Main highlights of the Verdict
CJI Dipak Misra said adultery can be a ground for divorce but not a Criminal Offence.

CJI Misra and J. Khanwilkar said adultery cannot be adultery be a crime, but if any
aggrieved spouse commits suicide because of life partner adulterous relation, then if the
evidence is produced, it could be treated as an abetment to suicide.
The bench held that adultery can be treated as civil wrong for dissolution of marriage.
Delivering its judgement, the SC said that unequal treatment of women invites the wrath of
the Constitution.

6
Unconstitutionality-of-adultery; <https://clpr.org.in/litigation/decriminalisation-of-adultery-constitutional-
challenge-to-section-497-of-the-ipc/> (last accessed on July 3, 2020).

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Justice Chandrachud added that a woman after marriage does not pledge her sexual
autonomy to her husband and depriving her choice to have consensual sex with anyone
outside the marriage cannot be curbed.
Indu Malhotra, too termed Section 497 as unconstitutional However, Justice Malhotra said
adultery is a moral wrong contrasting with J. Chandrachud's view that each spouse in
marriage don't mortgage their sexual autonomy to each other.
The judgement has overruled all the previous judgements which upholds the criminalization
of adultery. Now, adultery has become non-punishable offence under IPC but it is still not
ethical with the society. At present, adultery is only considered as a civil wrong and the
remedy for the act is now only divorce.
CONCLUSION
The Supreme Court of India, decision regarding decriminalization of adultery has been
receiving a variety of talks from Indian society. The adultery law under the Section 497 of
IPC is a vague law on various checks extending from being gender bias to being in conflict
with other prevalent laws. There is no reason behind why the laws only punishes the man
with whom the married woman is in an adulterous relation with and not the woman herself.
Some people supporting this judgment as a positive step regarding equality principle.
However, there is also a negative response from others. It is also not the point to be neglected
that Indian society is a monogamous society and people feel here the relationship of marriage
is a ritual. So, decriminalization of adultery is unacceptable to many in Indian society. This
decision has a variety of impacts on the institution of marriage.