The term ‘adultery’ is the Latin term “adulterium” which means ” to pollute”. Adultery can be defined as voluntary sexual intercourse with a person other than his/ her own spouse. Section 497 of the Indian Penal Code defines adultery as “whoever has sexual intercourse with a woman who is not his wife, and he knows or has reason to believe her to be someone else’s wife, without his(the husband’s) consent” then such person used to be considered guilty of the offence of adultery and be imprisoned which could extend up to five years or with fine, or with both. According to this section, the wife was not punishable even as an abettor. This offence was non-cognizable and bailable and compoundable.
Essentials of Section 497 of IPC
- The person must have committed sexual intercourse other than his own spouse.
- The person must have known that the woman was the wife of another person.
- The woman’s husband didn’t consent for it.
- The intercourse was not rape.
Section 198 of the Criminal Procedure Code,1973 states that no Court shall take the cognizance of such offence like adultery except the complaint was made by the husband of the woman and if the husband was not present then by the person who took care of the woman when such offence was committed.
Jesus has defined adultery as “Adultery includes any married man who has intercourse outside the ambit of his marriage”.
Marriage is a holy relationship and vows are taken by both the spouses and hence both must share responsibilities equally and be faithful to each other. Adultery is a social and civil offence and infidelity of trust. In ancient times, all religions like Hinduism, Islam, and Christianity considered adultery as a social and moral sin. Adultery is considered an invasion of the right of a spouse over the other.
The law of adultery varies from country to country. It is not the same everywhere. There are some countries like Afghanistan, Bangladesh, Nepal, Indonesia where adultery is still a crime and in Pakistan, both men and women are considered guilty of adultery. But in India, after Joseph Shine’s case, adultery is not considered as a crime anymore, but it is still a ground for divorce.
Adultery As A Ground For Divorce
The Supreme Court in the Joseph Shine case held that adultery is a ground of divorce and the adulterer should be given civil penalties. According to section 13(1) of the Hindu Marriage Act, 1955 if any person voluntarily engages in sexual intercourse with a person other than his spouse, then it becomes a ground for divorce. Section 10 of the Hindu Marriage Act, 1955 says adultery as a ground for judicial separation.
Section 22 of the Indian Divorce Act has made the provision of judicial separation on the ground of adultery. If a husband engages in sexual intercourse outside the wedlock, it is also a ground for divorce according to the Special Marriage Act,1955.
Constitutional Challenge Of Sec 497
In Yusuf Aziz v. State of Bombay  for the first time, the law of adultery was challenged. Petitioner argued that adultery law infringed the fundamental rights which are ensured under Articles 14 and 15 of the Constitution. The Supreme Court held that Article 14 should be read with other provisions that are the exception to our fundamental rights. Article 15(3) gives an exception to women and children. The petitioner says that this clause is for the benefit of women and children and does not give a license for abetting the crime. The Court finally held that Article 14 and 15 of the Constitution validate section 497 of the Indian Penal Code.
In Sowmithri Vishnu v. Union of India , the Court held that Article 14 and 15 is not violating Section 497 of IPC on the following grounds -:
- Section 497 gives the right to the husband to prosecute the adulterer but does not prosecute women who have committed adultery.
- Section 497 does not grant any right to a wife to sue her husband who has committed adultery.
- According to section 497, husband can have a sexual relationship with a single woman and it was not an offence.
Revathi v. Union of India  in this case court held that not prosecuting women in adultery cases is a social good. It allows both the spouses to maintain their sanctity of marriage. The Supreme Court states that adultery law was a shield rather than a sword.
In the Joseph Shine v. Union of India  case, a non-resident of Kerala filed a PIL under Article 32. A petition was filed challenging the constitutionality validity of section 497 of the Indian Penal Code, 1860 and also, sec 198(2) of the Criminal Procedure Code,1973. The five-division bench struck down the sec 497 of IPC and declared it unconstitutional and section 198 (2) of the Criminal Procedure Code as it violates Articles 14,15,21 of the Constitution of India. The Joseph shine case held the following things -:
Section 497 is archaic and Constitutionally Invalid – Sexual autonomy is a personal thing and comes in the ambit of Article 21 of the Constitution. But sec 497 denies the fact that women are equal participants in a marriage and was incapable of taking decisions related to a sexual act which was a violation of Article 14.
Section 497 is not a criminal offence – A crime means which is wrong for the society as a whole and adultery was a personal issue between both the spouses. So, adultery doesn’t come in the category of crime. It is a civil offence and a ground of divorce.
A Husband is not a master of his wife – The woman should not be considered as a property of the husband moreover, the husband should not be a master of his wife, this was held in this case. The Constitution of India has provided equal status to women.
Section 497 is arbitrary – It is irrational that this section confers the right to the husband to treat his wife as he likes which was not appropriate. This section does not enable the wife to file a criminal complaint against her husband.
Arguments In Favour Of Legalising Adultery
The decision to decriminalise adultery was right, if two mature individuals want to have consensual sex then no one has a right to stop them. Whether it is against the moral or ethical sense, it does not come in the purview of the law. According to the law, it is just two individuals having consensual intercourse. There should be no confusion between personal laws and community laws. When it comes to legalizing any community laws all the factors must be considered but the same is not true for personal laws.
When the Hindu Code Bills and Dowry Prohibition Acts passed the feeling that men are those who commit the wrong and it is necessary to protect women as they were in a vulnerable position in the society during 1950-55. But in today’s era, women are literate, independent, and know their rights and there was no need for such adultery laws in this scenario.
Arguments Against Legalising The Adultery
Marriage is an essential for ensuring the smooth functioning of society and adultery inflicts damage on the ethical and moral values of society. Legalizing adultery means encouraging western culture which has a high divorce rate. We Indians should not follow this fashion and should not encourage the system of extra-marital affairs which would increase if adultery is decriminalised.
Section 497: A Misuse Of Article 15(3)
The makers of the Constitution believed that in this era of the twentieth century no person should discriminate based on their gender. But it was seen the protective discrimination for the women. The special advantage was given to women under Article 15(3) of the Constitution.
The intention of makers was clear that they wanted to safeguard and protect women so as to ensure their betterment and progress in society.
The adultery law considers the husband as an offender and treats women as they are incapable of committing adultery. So, this kind of legislation was discriminatory. Section 497 of IPC was a violation of equality under the constitution.
There was a huge change in the society as women were not considered as chattel of her husband because the Supreme Court has struck down the 150 years old law on adultery as unconstitutional.
Along with Section 497, section 198 of the Criminal Procedure Code was also declared unconstitutional. By invalidating both the sections, the Supreme court guaranteed that no one can harm women’s dignity and empowerment.
 Joseph Shine v. Union of India, W.P. (Crl.) 94/2017.
 Yusuf Aziz v. State of Bombay, 1954 AIR 321,1954 SCR 930.
 Sowmithri Vishnu v. Union of India, 1985 AIR 1618.
 V. Revathi v. Union of India, 1988 AIR 835.
 Supra note 1.
BY SHAMBHAVI SINHA | BANASTHALI VIDYAPEETH