SUBJECT- LAW OF CRIMES II
ARTICLE
On
DECRIMINALISATION OF
ADULTERY
Submitted By:
Snigdha Mohapatra
BBA.LLB(B)
1882102
Submitted To:
Ms. Maneesha Mishra
Faculty Associate
KIIT School Law
DECRIMINALISATION OF ADULTERY in
INDIA: A SOCIO-LEGAL ANALYSIS
ABSTRACT:
Section 497 of the Indian Penal Code provides the law and punishment relating to adultery.
Adultery is an incursion on the right of the husband over his wife. It is a transgression of the
sanctity of the marital home. It is looked down upon as a standoffish and illicit act. Time and
again this section has been brought under the scrutiny of the Apex Court. Women’s rights
activists have over and over opposed the retention of the provision relating to adultery.
However, the Supreme Court in its previous cases rejected all arguments advanced against
adultery to uphold its constitutional vires. It opined that ‘adultery’, which deals only with ‘an
outsider’ to the matrimonial unit who invades the peace and privacy of the matrimonial home
and poisons the relationship between the two partners constituting the matrimonial home is a
beneficiary provision for a woman. 1 The apex court also ruled that s 497 does not violate the
gender equality clauses of the constitution nor does it infringe the fundamental rights under
Art. 14 and 21. Recently, the Supreme Court has declared 150 years old law on adultery as
unconstitutional, arbitrary and that it offends the dignity of a woman.
KEYWORDS: Unconstitutional, arbitrary, sexual intercourse, consent
INTRODUCTION:
The provision of adultery as defined under s 497 of the Indian Penal Code reads as, ‘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 or 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.’ Section 497 of IPC
outlaws adultery by imposing culpability on a person who engages in sexual intercourse with
a married woman and without the consent or connivance of her husband. This section seeks to
punish only men for adultery and treats women as victims and exempts them from prosecution
even though they were consenting parties. Further, the right to complaint under s 497 rested
only with the men and woman cannot bring forth a complaint under Section 497 of IPC even
when her husband indulges in sexual intercourse with an unmarried woman. This provision
which sought to morally police the personal marital decisions of the people had long remained
under the scanner when finally the apex court in the case of Joseph Shine v Union of India2
1
2
P S A Pillai’s Criminal Law, K.I. Vibhute, 12th edition 2014, LexisNexis, Gurgaon, p 553
(2018) 2 SCC 189
struck down Section 497 as unconstitutional being violative of Art 14, 15 and 21 of the Indian
Constitution.
LITERATURE REVIEW:
CRITICAL APPRAISAL:
The Supreme Court dealt with the legality of Adultery three times through different challenges
of provisions being discriminatory in nature and has in each case upheld the provisions. The
three cases being Yusuf Abdul Aziz v State of Bombay3, Sowmthri Vishnu v Union of India4
and V. Revathi v Union of India5. Government’s argument was that “decriminalising the
offence of adultery would erode the sanctity of marriage and the fabric of society at large”.
However, it is pertinent to note that in recent years traditional family values have changed and
this was recognized in Joseph Shine.
In the case of Yusuf Abdul Aziz v State of Bombay, Yusuf was on trial for adultery and argued
that s 497 violated the concept of equality enshrined in article 14 and 15 by assuming that the
offence of adultery could only be committed by a man and by the provision that the adulterous
wife be not punished even as an abettor.6 However, the court was of the opinion that the
exemption provided by this section is safeguarded by article 15(3) of the Constitution which
enables the Government to make special provisions for women and children.
In the second case, Sowmithri v Union of India, it was contended that Section 497, being
contrary to Article 14 of the Constitution, makes an irrational classification between women
and men in the sense that it:
(i)
(ii)
(iii)
Confers upon the husband the right to prosecute the adulterer but it does not confer
a corresponding right upon the wife to prosecute the woman with whom her
husband has committed adultery,
Does not confer any right on the wife to prosecute the husband who has committed
adultery with another woman,
Does not take in its ambit the cases where the husband has sexual relations with
unmarried women, with the result that the husbands have a free license under the
law to have extra marital relationship with unmarried women.
The Supreme Court held that the section is not discriminatory and does not offend article 14 or
15 of the Constitution. The Court opined that men were not allowed to prosecute their wives
3
1951 (53) Bom LR 736
1985 (Suppl)SCC 137
5
AIR 1988 SC 835
6
Rajiv Gandhi Institute for Contemporary Studies, Adultery in India: Law, Court and Sanctity of Marriage,
RGICS Policy Watch, Vol 7 Issue 5
4
for the offence of adultery in order to protect the sanctity of marriage. For the same reason,
women could not be allowed to prosecute their husbands. 7
7
http://www.legalserviceindia.com/legal/article-1140-decriminalization-of-adultery-in-india.html