School Of Law & Governance

ADULTERY

Submitted By – Saurav Suman

Enroll No. – CUSB1713125044
B.A LL.B(H) 3rd Sem
Submitted To – Dr. P.K. MISHRA

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CONTENT
 INTRODUCTION
 THE LAW OF ADULTERY IN INDIA
 ANALYSIS OF THE DEFINITION
 CURRENT STATUS OF ADULTERY IN INDIA
 CASES
 CONCLUSION
 REFERENCE

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INTRODUCTION
The Indian Penal Code was framed by the Britishers in 1860 which was the time when
women in India were considered the property of the men, and the offence on adultery given
under s 497 is a clear reflection of this. Adultery is basically an act of having sexual relations
outside marriage. This article aims to critically analyze the gender biasness in the definition
of adultery given under s 497 keeping in view the changing circumstances and the now
legalized homosexuality..Adultery, the act of being sexually unfaithful to one’s spouse, has
been common in human society for as long as one remembers. The accepted meaning of
adultery in relation with matrimonial law in India is as follows: “Adultery may be defined as
consensual sexual intercourse between a married person and a person of the opposite sex, not
the other spouse, during the subsistence of marriage”. The Indian Penal Code defines adultery
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 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 abettor”.
Forensic medicine teachers taught topic of ‘adultery’ to medical students as one of the sexual
offences, medico-legal aspect of marriage, and as professional misconduct, which is part of
medical ethics. The question is of safeguarding / protecting socio-ethical value of our society
and honour of medical profession. Section 497 IPC came into existence during the British
Rule.

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THE LAW OF ADULTERY IN INDIA:
S 497 of the Indian Penal Code, 1860 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 case the wife shall not be punishable as an
abettor.”
The Judicial Pronouncements on Validity of the Law:

The constitutional validity of the law of adultery in India has been challenged a number of
times but the court has upheld its validity and also the ‘classification’ made under it.

In the case of Yusuf Aziz v. State,[2] the Court ruled that the immunity granted to women
from being prosecuted under section 497 was not discriminatory but valid under Article 15
(3) of the Constitution. It does not offend articles 14 and 15 of the Constitution of India.

In case of V. Revathi v. Union of India and Ors,[3] the court held that that Section 497 of the
Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the
sanctity of the matrimonial tie by committing adultery. Thus the law permits neither the
husband of the offending wife to prosecute his wife nor does the law permit the wife to
prosecute the offending husband for being disloyal to her. Thus both the husband and the
wife are disabled from striking each other with the weapon of criminal law.

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ANALYSIS OF THE DEFINITION:

Now on analyzing the definition from beginning to end, we find the very second line of this
section mentions the phrase ‘wife of another man.’ And here appears the very first point of
gender discrimination. This phrase gives an idea that a married man having sexual relations
with an unmarried woman will not be guilty of committing adultery.

The offence of adultery has been kept under the chapter titled ‘offence relating to marriage’
because this offence hits at the very root of the institution of marriage destroying the sanctity
of a marital relation. And to preserve the sanctity of the marriage is not the duty of just one
spouse rather both husband and wife.

But the language of this section gives a feeling that if the husband of the lady, with whom the
person convicted of adultery had sexual intercourse, had given his wife his consent to have
relation outside marriage then her wife’s relation with a third man will not destroy the
sanctity of their marital relationships which is not true. Also, this discriminates between
husband and wife as partners to a marriage since it does not include ‘husband of another
woman’ exonerating the female partner in the extra-marital relation of the charge of adultery.

The next phrase mentions ‘without the consent or connivance of that man’ which clearly
indicates that adultery is not an offence per se but is an offence only when the husband of the
adulterer did not consent to it and also that the consent of the wife of person convicted of
adultery is not considered in deciding whether her husband has committed adultery or not.
This once again discriminates between the two sexes by not considering the consent of the
wife of the person convicted of adultery in deciding whether her husband who had had sexual
relations outside marriage is guilty of the offence of adultery or not.

The argument generally given in favor of this definition is that the inheritance of children of
marriage is altered when wife beget children from a man other than her husband. Firstly if
that is the case then even if husband consents, the inheritance will be altered and secondly if
it actually about begetting children, a wife can also consent to extra marital relation of her
husband to allow the other women to beget a child for her and her husband. And so, even the
consent of this woman should be taken into consideration.

Also as far as the opinion of the court that ‘the law permits neither the husband of the
offending wife to prosecute his wife nor does the law permit the wife to prosecute the
offending husband for being disloyal to her is concerned then why the consent of the husband
and not of the wife is given importance in deciding the offence.

Now today when even the courts have discussed matters like live in relationships and have
secured the rights of the female partner in a live in relationship to property of her male
partner and also discussed the matter of homosexuality and have decriminalized consensual
non-vaginal sexual acts between adults, the Legislature should come up with a definition
which even punishes a man who has had sexual relation with a married man because the
current definition fails to do so.

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The last line of this section mentions ‘in such case the wife shall not be punishable as an
abettor’. In support of this the Supreme Court held that woman is neither the seducer nor the
author of the crime but the victim. But this view does not hold correct in the present time.

But at the same time the allegation, put forth by many critics, that this act only holds the male
partner to sexual intercourse guilty of adultery is not true as even where a female is having
sexual relation with ‘wife of another man’, even she will be guilty. And so it cannot be said
that this definition discriminates between men and women in holding them guilty of
adultery.

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Petition to decriminalize Section 497
Because of this problematic interpretation, the Supreme Court in December 2017 decided to
accept the public interest litigation in which it has been prayed that the Court strikes down or
completely does away with Section 497 of the Indian Penal Code entirely.
It has been argued that the section violates two articles of the Constitution of India- Article 14
and Article 15.
Article 14 reads as follows: "The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India."
Article 15 reads as follows: "The State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them."
On accepting this petition, the Court in its initial observations noted that this was not the first
petition challenging the section - debates and cases on this have been in motion since 1954,
making it important for the Court to decide on this question without much ado. It felt that
laws are supposed to be gender neutral. However, in this case, it merely makes the woman a
victim and thus "creates a dent on the individual independent identity of the woman."
The arguments by the party opposing this decriminalization- the Centre- states that the
section "supports, safeguards and protects the institution of marriage... Stability of marriages
is not an ideal to be scorned." It further argues that if the petition is allowed, then "adulterous
relations will have more free play than now." As an alternative, it provides that the
recommendations of the Committee on Reforms of Criminal Justice System (2003) be
implemented. This committee recommended that the wording of the section be changed as
follows: "Whoever has sexual intercourse with the spouse of any other person is guilty of
adultery..." so as to tackle the problem of gender bias which arises from the reading of the
current section.

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CURRENT STATUS OF ADULTERY IN INDIA

Previously any man who had sex with a married woman, without the permission of her
husband, had committed a crime.

A petitioner had challenged the law saying it was arbitrary and discriminated against men and
women.

All five Supreme Court judges hearing the case said the law was archaic, arbitrary and
unconstitutional.

"Husband is not the master of wife. Women should be treated with equality along with men,"
Chief Justice Misra said.

Judge Rohinton Nariman said that "ancient notions of man being perpetrator and woman
being victim no longer hold good".

Justice DY Chandrachud said the law "perpetuates subordinate status of women, denies
dignity, sexual autonomy, and is based on gender stereotypes".

Adultery is no longer a criminal offence in India. India's top court has ruled adultery is no
longer a crime, striking down a 158-year-old colonial-era law which it said treated women as
male property.

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CASES
Yusuf Aziz v. State of Bombay1

Petitioner contended that the adultery law violated the fundamental right of equality
guaranteed under Articles 14 and 15 of the Constitution. The dominant argument in the court
hearing was that Section 497, governing adultery law, discriminated against men by not
making women equally culpable in an adulterous relationship. It was also argued that
adultery law gave a license to women to commit the crime. Three years later in 1954, the
Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a
license to women to commit adultery. The judgment said that making a special provision for
women to escape culpability was constitutionally valid under Article 15(3) that allows such a
law.
Moreover, in an interesting observation, the Supreme Court said in the judgment that "it is
commonly accepted that it is the man who is the seducer, and not the woman." The Supreme
Court stated that women could only be a victim of adultery and not a perpetrator of the crime
under Section 497. The argument was made to reject the contention that the adultery law was
discriminatory against men. However, despite declaring women as "victim only" in the
occurrence of the crime of adultery, the court did not allow them to file a complaint.

Sowmithri Vishnu v. Union2

The Centre has cited this judgment in its 2018-affidavit to back Section 497 of the IPC.
In Sowmithri Vishnu case, the Supreme Court held that women need not be included as an
aggrieved party in the name of making the law even handed. It also explained as to why
women should not be involved in prosecution in the cases of adultery.
The Supreme Court held that men were not allowed to prosecute their wives 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. The judgment retained the offence of adultery as a
crime committed by a man against another man The Supreme Court also rejected the
argument that unmarried women should be brought under the purview of the adultery law.
The argument was that if an unmarried man establishes adulterous relationship with a married
woman, he is liable for punishment, but if an unmarried woman engages in a sexual
intercourse with a married man, she would not be held culpable for the offence of adultery,
even though both disturb the sanctity of marriage.
The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law
under Section 497 would mean a crusade by a woman against another woman. The ambiguity
related to adultery law remained unresolved.

V Revathi v. Union of India of 19883

On adultery law, the Supreme Court held that not including women in prosecution of adultery
cases promoted "social good". It offered the couple a chance to "make up" and keep the
sanctity of marriage intact.
The Supreme Court 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 ambit of Section 497 to men.

1
AIR 1951 Bom 470
2
1985 AIR 1618
3
1988 AIR 835

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Besides the three Supreme Court judgments, there were two more important legal views in
connection with adultery law.
The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on
Criminal Law Reforms of 2003 recommended amendment to the adultery law. Both argued to
make Section 497 of the IPC gender neutral.

Trivia: The Supreme Court bench that dismissed a plea challenging Section 497 had Justice
YV Chandrachud on it. Current Supreme Court bench hearing the adultery law case had his
son Justice DY Chandrachud on it.
It was Justice DY Chandrachud, who made the observation that women could not be treated
as commodity by leaving them to the discretion of their husbands in giving consent in matters
of adultery. The Supreme Court said in August this year that Section 497 as anti-women to
dismiss the argument that the adultery law discriminated against men.

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CONCLUSION
The need to amend the law on adultery in India has not been felt in a few years rather jurists
and lawyers have been pressing the need for amendment since decades. The courts have held
that they cannot strike down a section on the ground that it is desirable to delete it.[8] But the
paper proposes an amendment to and not a deletion of the section. Therefore the Legislature
should, with immediate affect, bring an amendment into the law of adultery and remove the
gender biasness of this law.

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REFERENCE
 Ram Jethmalani & Prof. D.S. Chopra, The Indian penal Code,(Thomson
Reuters,New Delhi,1st Edition 2014)
 K D Gaur, Textbook on Indian Penal Code, (Universal Law Publishing Co., New
Delhi, 6th Edn. 2016, Reprint 2017)
 S.N. Mishra, The Indian Penal Code, (Central Law Publication, Allahabad, 20th
Edn. 2016)
 K. I. Vibhuti, P.S.A. Pillai’s Criminal Law (Lexis Nexis, Wadhwa, 11th Edn.
2012)

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