Law Insider India

Legal News, Current Trends and Legal Insight | Supreme Court of India and High Courts

Adultery under Indian Penal Code, 1860

10 min read
adultery law insider in

adultery law insider in

Aashima Kakkar

The word “adultery” comes from the French word “avoutre”, which is derived from the Latin verb “adulterium”, which means “to corrupt”.[1] A married man commits adultery if he has sex with a woman with whom he has not entered into wedlock, according to the dictionary.

Adultery is a criminal offence in India, according to Section 497 of the Indian Penal Code, 1860 (hereinafter as IPC) which carries a penalty of up to five years in prison and a fine.

When compared to the misconduct of adultery as understood in divorce proceedings, the offence of adultery under Section 497 has a very limited scope. Only a man who had sexual relations with another man’s wife without the latter’s consent or knowledge commits the crime.

The wife is not held accountable for being an adulteress or even aiding and abetting the crime. A “person aggrieved” is defined in Section 198 of the Criminal Procedure Code (hereinafter as CrP.C).

Subsection (2) considers the woman’s husband to be harmed by an offence under Section 497 IPC, and in the absence of the husband, any person who was caring for the woman on his behalf at the time the offence was committed, with the court’s permission. It does not consider the adulterer’s wife to be an aggrieved party.

Sections 497 IPC and 198(2) of CrP.C, taken together, form a legislative package to deal with the crime of adultery, which has been declared unconstitutional and overturned by the Supreme Court in the recent judgment of Joseph Shine v. Union of India[2].

Section 497 of IPC – Adultery

“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.”

Adultery, according to this section in IPC, is defined as a man having sexual relations with someone’s wife without her husband’s consent. According to the section, whoever has sexual intercourse with a woman who he knows or has reason to believe is the wife of another man and does so without her husband’s consent, and when such sexual intercourse does not amount to rape, is guilty of adultery.

It is important to note that the woman who commits adultery is not punished, even if she aids and abets the crime. Only the man who commits adultery is held accountable. It is also worth noting that every instance of sexual activity result in adultery.

Sexual relations with an unmarried woman or widow, on the other hand, are not considered adultery. Adultery is also a crime committed against the husband, not the wife.

Illustration: ‘X’ knowingly has sexual relations with his friend ‘Y’’s wife without Y’s knowledge.

Adultery is punishable by imprisonment for up to five years under section 497 of the Indian Penal Code 1860, which may or may not be combined with a fine. It is a non-cognizable, bailable, and compoundable offence that is tried by a first-class magistrate.

From the above explanation we can confer the following essentials of Section 497:

  • The accused had sexual relations with a woman who was the wife of someone else.
  • The accused knew, or had reason to believe, that the woman in question was married to someone else; and
  • The said sexual intercourse occurred without the consent or knowledge of another person, that is, the woman’s husband and the case’s complainant.

As stated earlier, adultery is a crime against the husband, so he can only file a complaint against the adulterous man. Even as abettors to the crime of adultery, women are not punished under the IPC.

While upholding Section 497 in the case of Sowmithri Vishnu v. Union of India[3], a four-judge bench led by then-CJI Y V Chandrachud said, “It is commonly accepted that the seducer is the man, not the woman”.

This position may have evolved over time, but it is up to the legislature to decide whether Section 497 should be amended to reflect the society’s “transformation”.

Section 198(2) of CrP.C – Prosecution of offences against marriage

“Prosecution for offences against marriage – (2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.”

This section states that only the husband of the woman who commits adultery is considered an aggrieved party, and he is the only one who can file a complaint. In his absence, however, if the court permits, another person who was caring for the woman on his behalf at the time the crime was committed may file a complaint on his behalf.

Landmark judgements

  • Yusuf Abdul Aziz v. State of Bombay[4]

The constitutionality of Section 497 was challenged in this case on the grounds that it violates Articles 14 and 15 by stating that a wife cannot be a perpetrator or even an abettor. The validity of the said provision was upheld by a three-judge panel because it is a special provision created for women and is protected by Article 15. (3). And because Article 14 is a general provision that must be read in conjunction with other Articles, and because sex is simply a classification, it is valid when both are combined.

  • V. Revathi v. Union of India[5]

The court upheld the constitutional validity of Section 497 read with Section 198 in this case, stating that it prevents both the wife and the husband from punishing each other for adultery, making it non-discriminatory. It only punishes an outsider who attempts to desecrate marriage’s sanctity. As a result, it is discrimination in her favour rather than against her.

  • W. Kalyani v. State through Inspector of Police and Anr.[6]

The constitutionality of Section 497 was not a factor in this case, but it states that simply because appellant is a woman, she is immune from charges of adultery and cannot be prosecuted for it.

Joseph Shine v. Union of India

Joseph Shine filed a writ petition under Article 32, challenging the constitutionality of Section 497 of the IPC, read with Section 198 of the Cr. P.C., as being in violation of Articles 14, 15, and 21. This was the first Public Interest Litigation against adultery. The provision for adultery, according to the petitioner, is arbitrary and discriminatory based on gender. The petitioner claimed that such a law degrades a woman’s dignity. The petition was heard by a constitutional bench of five judges.

Contentions

The petitioner in his writ contended that the provision criminalises adultery solely based on sex classification, which has no rational nexus to be achieved. The wife’s consent is irrelevant. As a result, it is in violation of Article 14 of the Constitution. The petitioner argued that the provision is based on the idea that a woman is the husband’s property.

Adultery is not committed if the husband consents or connives, according to the provision. The provision for adultery is gender discriminatory because it only gives men the right to prosecute for adultery, which is a violation of Article 15.

The provision is unconstitutional, according to the petitioner, because it degrades a woman’s dignity by failing to respect her sexual autonomy and self-determination. It is a breach of Article 21. Sections 497 of the IPC and 198 of the CrP.C must be repealed.

Adultery is an offence that destroys family relationships, according to the respondents, and deterrence should be in place to protect the institution of marriage. Adultery has an impact on the spouse, children, and society. It is a crime committed by an outsider with full knowledge of the marriage’s sanctity.

Article 15(3), which grants the state the right to enact special laws for women and children, protects the provision’s discrimination. They ask the court to strike out the part that was found to be unconstitutional but keep the rest of the provision.

Issues

Issue 1 – Whether the provision for adultery is arbitrary and discriminatory under Article 14

The classification is found to be arbitrary in that it only treats the husband as an aggrieved person who has the right to prosecute the offence, while the wife has no such right. The provision is not based on the principle of equality.

The offence is based on the idea that women are a husband’s property, and adultery is considered a theft of his property because it states that the husband’s consent or connivance does not make it an offence. The wife is not considered an offender under the provision, and only the third party is punished.

Thus, the Supreme Court held that such categorization is arbitrary and discriminatory, and it has no relevance in today’s world, where women have their own identity and are treated equally to men in every way. Article 14 is clearly violated by this provision.

Issue 2 – Whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on gender basis under Article 15

This provision discriminates based on sex between a married man and a married woman to her disadvantage. This provision is based on the stereotype that a husband has complete control over his wife’s sexuality and that she is his property.

It reinforces the stereotype that women are passive and unable to exercise their sexual autonomy. Women are protected under Section 497 from being prosecuted as abettors. It is stated that this provision is beneficial to women, and that Article 15(3) protects them. Article 15(3) was added to protect women from patriarchy and to help them break free from oppression.

The goal of this article was to make them equal to men. Section 497, on the other hand, is based on patriarchy and paternalism, not on protection. As a result, the provision violates Article 15(1) of the constitution because it is gender discriminatory and perpetuates the stereotype of a husband controlling his wife’s sexual autonomy.

Issue 3 – Whether the dignity of a woman is compromised by denial of her sexual autonomy and right to self-determination

The provision allows adultery with the consent or connivance of the husband, granting a man control over his wife’s sexual autonomy. This turns her into a puppet of her husband, robbing her of her individuality. The societal thinking about women was backward when the penal code was drafted, and she was treated as a chattel, but after 158 years, women’s status is equal to that of men.

Her dignity is paramount, and it cannot be jeopardised by a provision that reinforces gender stereotypes. Women’s individuality is diminished when they are treated as victims, and her identity without her husband is questioned. The enforcement of forced fidelity by restricting sexual autonomy is a violation of Article 21’s fundamental right to dignity and equality.

Issue 4 – Whether criminalising adultery is intrusion by law in the private realm of an individual

A crime is defined as an offence that has a societal impact. Adultery, on the other hand, is a crime that entails entering a person’s private life. Adultery is a victimless crime that can be committed by two consenting adults. This provision aims to protect the sanctity of marriage, but we must admit that adultery is committed because of a pre-existing disruption of marital ties.

Adultery is a criminal offence punishable by up to 5 years in prison for a third party. In the opinion of the court, this is not required. This provision makes a husband a victim and a woman an aggrieved person. Even if the law changes to give women equal protection against adultery, it is still a completely private matter. Adultery should be treated as a reason for divorce rather than a crime.

Adultery can now be used as a basis for any civil wrong, including dissolution of marriage, under Section 497 of the Indian Penal Code.

What was the result of the judgement?

In larger cities, where people are moving toward westernization, infidelity is more common. This decision has been widely panned on the grounds that it allows people to commit adultery without fear of repercussions. Since its decriminalisation, there has been an increase in adultery.

Men claim that there is no way to guarantee the purity of a bloodline any longer. Many argue that the parliament should have accepted recommendations from law commissions to punish both men and women equally for adultery. The Supreme Court has also been chastised for not allowing parliament to make decisions on adultery considering changing social circumstances.

Conclusion

This is the twenty-first century, and equality and liberalism have swept the globe. Legislative reforms are required to eliminate laws that discriminate against women. Many laws in India have become obsolete as time has passed. One of them was adultery, which had to be eradicated. Adultery not only discriminates between men and women, but it also diminishes a woman’s dignity. When society was filled with patriarchy and paternalism, this was inserted as an offence.

Women were stereotyped as belonging at home in that society, and they did not have the same rights and opportunities as men. And married women were not treated as individuals but as the property of their husbands, as evidenced by the provision for adultery.

But times have changed, and women are no longer enveloped in men’s shadows. Adultery is not a criminal offence because it is a personal matter in which the courts should not intervene. Every individual has sexual autonomy and interfering with it would be a violation of constitutional principles. Every individual has sexual autonomy and interfering with it would be a violation of constitutional principles.

The Joseph Shine judgement decriminalises adultery and only allows it to be used as a basis for civil wrongs. Adultery is a very private matter related to the matrimonial realm, so criminalising both men and women as suggested by Law Commission reports would not have served the purpose. The Legislature should have done this a long time ago, but our judiciary has been very effective in filling in the gaps and removing redundant laws as societal notions have changed.

  1. The New International Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.).
  2. Joseph Shine v. Union of India 2018 SCC OnLine SC 1676
  3. Sowmithri Vishnu v. Union of India 1985 AIR 1618
  4. Yusuf Abdul Aziz v. State of Bombay (1954) SCR 930
  5. V. Revathi v. Union of India (1988) 2 SCC 72
  6. W. Kalyani v. State through Inspector of Police and Anr. (2012) 1 SC 358