Adultery in India is a criminal offence which is committed by a third person against a

husband in respect of his wife and of which a man can alone be held liable for the
offence. The law of adultery is not applied on a woman. The first part of the article
discusses about the present legal status for adultery in India and the essential
ingredients of the offence. The second part of the article deals with the Supreme Court
standing on the constitutional validity of the law based on various cases. The third part
of the article criticises the present law and rulings of the Honourable Supreme Court
and challenges the constitutional validity of the section on the grounds that it violates
the fundamental rights of a man under Article 14 of the Indian Constitution and also
this Section does not come under the purview of the saving clause under Article 15 (3)
of the Indian Constitution. The fourth part of the article mentions about the changes
recommended by the various committees. The fifth part of the article discusses about
the legal provisions in other countries and will analyse if adultery should be de-
criminalised in India considering that the socio-economic background of India. The
article concludes that there has been a large change in the society, the law as it stands
today not only violates the Indian Constitution that includes equal justice for every
citizen of India but also due to change in the norms and behaviour of the society,
adultery should be made a civil wrong rather than a criminal offence.
CURRENT STATUS OF ADULTERY AND THE AMENDMENT MADE
The Supreme Court abolished a 158-year-old law, thus declaring that adultery is no
longer a crime in India. “The husband is not the master of the wife,” the five-judge
constitution bench unanimously concurred and called the Victorian era adultery law –
Section 497 of the Indian Penal Code – as arbitrary,.

The Victorian era law punished a man who has an affair with a woman “without the
consent or connivance of” her husband. A man found guilty could be sentenced to five
years in jail, could be fined, or both. The woman would not be punished as she was seen
as the victim.

The constitutional bench said that any provision treating women with inequality is not
constitutional and that it is time to say that the husband is not the master of a woman.
The bench said that adultery will remain a ground for divorce.

In its defence, the Centre claimed that adultery laws should exist in India as it protects
the sanctity of marriage. The petition opposing the law was filed on the premise that the
law does not treat men and women equally.

What the Supreme Court said

Chief Justice of India, Dipak Misra, said, “The wife can’t be treated as chattel and it’s
time to say that husband is not the master of woman.” Misra further said that “there
can’t be any social licence which destroys a home,” reported.
The judges took into consideration the fact that most countries had struck down laws
against adultery. Making adultery a crime would mean “punishing unhappy people”,
said Justice Misra. As he began reading out the verdict, the Chief Justice remarked that
the beauty of the constitution is that it makes space for “the I, me and you” and “any
law which dents individual dignity and equity of women in a civilised society invites
the wrath of the constitution,” .

Justice Misra reiterated that subordination of any sex over the other is clearly
unconstitutional. The court ruled that mere adultery cannot be a crime unless something
is added.

What is Section 497?

The colonial era law was drafted in 1860, and sought to criminalise adultery with up to
five years imprisonment. Section 497 defined a perpetrator as someone who “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.”
More importantly, it adds that “In such case the wife shall not be punishable as an
abettor,” .

The petition opposing Section 497 argued that the adultery law was based on the
patriarchal idea of women as the property of men. The petition said, “It indirectly
discriminates against women by holding an erroneous presumption that women are the
property of men. This is further evidenced by the fact that if adultery is engaged with
the consent of the woman’s husband, then such act ceases to be an offence…It amounts
to institutionalized discrimination,”.

The Joseph Shine petition

The petition filed by Joseph Shine challenges Section 497 of the IPC, which leads to
prosecution of a man in an adulterous relationship with a married woman, but lets off
the woman.
It also challenges Section 198 that allows an aggrieved husband of a married woman
in adulterous relationship to lodge a complaint but not the aggrieved wife of the
adulterous man.
Further details about the PIL
Replying to the petition, the court, on August 2, said it's strange that 497 didn't attract
the offense of adultery if an unmarried man had relationship with a married woman.
It said it wondered how such a provision was permitted that overlooked the offense of
adultery when a married man had sex with another married woman with the consent or
connivance of her husband.

The issue of consent

An important issue raised during the trial was whether a sexual act between two
consenting adults can be treated as a criminal offence, even if it is not on the lines of
conventional morality.
CJI Misra had orally observed in August that sending a person to prison for five years
for adultery did not appeal to common sense. He instead suggested a civil remedy for
adultery: divorce.

“If a third party attacks or molests the wife of another, it amounts to rape. Rape is an
offence. But if a relationship is carried with the consent of the woman, how does it
amount to an offence? If there is consent [between two adults], why punish the wife’s
lover?” CJI Misra argued, .

Why the Centre was in support of anti-adultery laws

The SC’s verdict might be seen as a defeat to the Centre. In July, the central government
told the Supreme Court that anti-adultery laws were required so that the “sanctity of
marriage and the institution of family” can be protected. The Centre claimed that any
attempt to abolish adultery laws would hurt “Indian ethos”.

The government said so while responding to a court notice on a public interest litigation
that sought to struck down the adultery law as it was not gender neutral and the
provisions were tilted against men.

During the preliminary hearing, the apex court, which had earlier upheld the law, agreed
with the submissions that the law did seem outdated now. The Supreme Court agreed
with the argument that the law allowed the man to condone the act of his wife and not
file a complaint.

Constitution validity of article 14,15,21 of the constitution

Considering the present day situation and the vast transformation which the society
has undergone, Blindly assuming that ‘man is the seducer and not the women’ would
be a dangerous proposition, the boot is on the other leg these days, in a variety of
cases. The law makes an irrational classification between man and woman, in
restricting the class of offenders to men, where women or wife is an equal partner, it
violates constitutional provisions enshrined in Articles 14,15 & 21.
Earlie before amendment it was held by the:
The Supreme Court observed that adultery is a wrong against the sanctity of the
matrimonial home. Thus charges are pressed against the outsider who breaks the said
sanctity. The woman, in cases of adultery, is considered the victim of a seducer. It
appears that the court believes that the man has an unstoppable seductive charm and
the woman is helpless against it. The evil that is punished by the law, in the mind of
the court, is that of seduction of a woman by another man. According to the court the
woman is considered to be the victim. Thus the court held that the law was non
discriminatory and not violating the right to equality , thus the court upheld the
constitutional validity of the section 497. The court also opined that by not allowing
the spouses to prosecute each other the law offers a chance to the spouse to make-up,
it was further held that “Section 497 is not violative of Articles 14, 15 & 21 of the
Constitution.
Article 14 states that Equality before law The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Article 21 “No person shall be deprived of his life and personal liberty except
according to the
procedure established by law”.
Article 15 states that Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for
women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes

Thus adultery punishment mentioned under section 497 of the Indian penal code was
held unconstitutional and violative of article 14,15 and 21 of the constitution
SUPREME COURT’S VIEW IN BRIEF

the Supreme Court was of the view that the adultery law per se is discriminatory and
violates Article 14 as it punishes only the man and spares the woman portraying her as
a victim.
"Both parties in adultery derive the benefit of the act. Despite that one is treated as a
victim and other is punished. There is no rationality in it", said Chief Justice Dipak
Misra.
The Supreme Court has struck down 158 year old Section 497 of the Indian Penal
Code, which criminalizes adultery, as unconstitutional. "Any provision of law
affecting individual dignity and equality of women invites wrath of constitution. It's
time to say that husband is not the master of wife. Legal soverignity of one sex over
other sex is wrong", read out Chief Justice Misra from the judgment written for
himself and Justice A M Khanwilkar. The judgment held Section 497 to be
"manifestly arbitrary". Also Read - The Good And Bad : Read 35 Important Supreme
Court Judgments Of 2018 Section 497 punished a married man for having sex with
wife of another man. However, the sexual act is exempted from punishment if it is
performed with the consent or connivance of the husband of the other woman. Also,
the provision exempts the wife from punishment, and states that wife should not be
even treated as an abettor. Also Read - J&K HC Refuses To Cancel Bail Granted To
BSF Employee Accused Of Adultery [Read Order] The judgment of CJI Misra held
that Section 497 violated a woman's right to dignity, resulting in infringement of
Article 21 of the Constitution of India. The judgment borrows from the findings of
Justice Nariman's judgment in Triple Talaq case. The Court however clarified that
adultery will be a ground for divorce. It was also stated that if an act of adultery leads
the aggrieved spouse to suicide, the adulterous partner could be prosecuted for
abetment of suicide under Section 306 of the IPC. The judgment also struck down
Section 198(2) of the Code of Criminal Procedure, as a consequence of striking down
of Section 497 IPC. Justice R F Nariman wrote a separate judgment to concur with the
judgments of CJI Mira and Justice Khanwilkar, and stated that Section 497 was an
archaic provision which had lost its rationale. "Ancient notion of man being the
perpetrator and woman being victim of adultery no longer holds good", observed
Justice Nariman. It treats women as chattel, and has chauvinistic undertones. Justice
Chandrachud in his separate but concurring opinion said that Section 497 was
destructive to woman's dignity. "Autonomy is intrinsic in dignified human
existence.497 denuded the woman from making choices.The law in adultery is a
codified rule of patriarchy.Society attributes impossible attributes to a woman, Raising
woman to a pedestal is one part of such attribution", he said. "Respect for sexual
autonomy must be emphasized.Marriage does not preserve ceiling of autonomy 497
perpetrates subordinate nature of woman in a marriage", these were his concluding
remarks. Justice Indu Malhotra noted in her judgment that the Section institutionalized
discrimination.
Background of Case
The four-day long hearing in the PIL praying for the decriminalisation of the act of
Adultery had witnessed positive, feminist remarks from the Supreme Court five-judge
bench. “The argument against you (the petitioner) is that section 497 protects the
sanctity of marriage...However, if a married men has sexual intercourse, outside his
marriage, but with an unmarried woman, that does not amount to an offence under the
provision though it also effects the sanctity...”, reflected Justice D. Y. Chandrachud.
“fidelity does not apply to a married man if he engages in extra-marital sex with a
single woman? You exact fidelity from a woman but not from a man?”, he asked.
Concurring, Justice Rohinton Nariman cited the classical Article 14 test- “where is the
intelligible differentia in saying that the sanctity of marriage is not hurt if a married
man has sexual intercourse with an unmarried woman? This is manifest arbitrariness”
Further, Justice Chandrachud indicated the impropriety of the section in so far as it
exempts from criminal prosecution a man who has engaged in sexual intercourse with
a married woman if the same transpires with the consent or connivance of the said
married woman’s husband- “can the section be saved if we strike down this
part...because this is one ground for the unconstitutionality of the provision...or would
we, by applying the doctrine of severability, in fact make the offence even more
severe than the legislature intended?” “Besides consent, If the husband of a woman
connives with another man for the latter to participate in sexual intercourse with the
former’s wife, then there would be no adultery! This ‘connivance’ attaches a certain
deviousness to the Act”, he continued. Justice Indu Malhotra also pointed out the
“absurdity” of the section in as much as it legalises the act of Adultery if committed
by with the consent or connivance of the husband of the woman who is party to the
act- “Is the wife of the consenting husband being treated as chattel? This amounts to
gender bias” “The provision is Anti-human in a very ostensible way in so far as it
implies that a woman could be subjugated to this extent on the consent of her
husband...this is unknowable to Indian thought...such consent or connivance is
unacceptable”, observed Chief Justice Dipak Misra. Section 497 of the IPC, in so far
as it absolutely immunises the adulteress against any criminal prosecution for the act
of adultery, was also canvassed. “There is no rationality in treating one party as the
victim and the other as the accused for the same act...the only rationale behind the
provision seems to be that marriage is an institution which has to be saved...marriage
has been called an institution in all scriptures...it is built by two pillars and there has to
be equal responsibility of both...to say that women are protected from the criminal
ramifications of Adultery under Article 15(3) is not justified...Article 15(3) only
applies to post-constitution laws...”, noted the Chief Justice. “An ancient provision is
not protected under Article 15(3). It is for the Parliament to make (laws under Article
15(3)”, agreed Justice Nariman. It was also pointed out how section 198(2) of the Cr.
P. C. allows the initiation of criminal proceedings for Adultery only at the instance of
the husband of the adulteress, but the wife of the man party to the act of adultery
cannot institute a complaint. “The man shall be booked for the offence and his wife
shall suffer but the husband of the woman who has committed the crime will have the
benefit...”, observed the Chief Justice. Referring to the offence of bigamy under
section 494 of the IPC, Justice Chandrachud weighed in, “bigamy is gender neutral...if
a woman engages in sexual intercourse in a second marriage while the first is
subsisting, it is punishable...section 497 does not use same the yardstick as section 494
and this distinction makes the former unconstitutional...” The judge also remarked
how sexual intercourse outside a subsisting marriage may be a symptom of a broken
down marriage. “If a marriage has broken down and a party engages in sexual
intercourse outside the marital tie, you cannot criminalise that person...however, the
sexual autonomy inherent in us is not absolute and that adultery is a ground for
divorce is a reasonable restriction on that autonomy...decriminalising adultery would
not have the effect of licensing it”, noted Justice Chandrachud. He repeated that one
retains their sexual autonomy to an extent even after marriage and that the right to say
“no” is not forfeited by marriage. Towards the end of the hearing, Justice
Chandrachud weighed in that making section 497 gender neutral would only address
the issue of under-inclusion and that the real question is if Adultery should be a
criminal offence at all. Justice Malhotra voiced her scepticism about how the
relationship between two adults, which is a matrimonial dispute, could be a crime
against the society. With the Chief Justice Observing that the survival of a marriage
should be left to the discretion of the husband and the wife, without any intrusion by
the State, the judgment was reserved. Senior Counsel Meenakshi Arora and Advocates
Kaleeswaram Raj and Sunil Fernandes appeared on behalf of the petitioners, while the
Centre was represented by ASG Pinky Anand.
section 497 of the Indian Penal Code (IPC) and Section 198(2) of the Code of
Criminal Procedure (CrPC) were “archaic” and “gender discriminatory”.

SECTION 198(2) OF CODE OF CRIMINAL PROCEDURE AND

AECTION497 OF IPC
Under Indian law, Section 497 IPC makes adultery a criminal offence, and prescribes
a punishment of imprisonment upto five years and fine. The offence of adultery under
Section 497 is very limited in scope as compared to the misconduct of adultery as
understood in divorce proceedings. The offence is committed only by a man who had
sexual intercourse with the wife of another man without the latter’s consent or
connivance. The wife is not punishable for being an adulteress, or even as an abettor of
the offence[2]. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2)
treats the husband of the woman as deemed to be aggrieved by an offence committed
under Section 497 IPC and in the absence of husband, some person who had care of the
woman on his behalf at the time when such offence was committed, with the permission
of the court. It does not consider the wife of the adulterer as an aggrieved person.
Penal Code
Section 497. 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 a case, the wife shall not be punishable as an abettor.
Criminal Procedure Code
Section 198. Prosecution for offences against marriage. — (1) No Court shall take
cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45
of 1860) except upon a complaint made by some person aggrieved by the offence:
**********
(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 committed may, with the leave of the
Court, make a complaint on his behalf.
**********
Classification of offence
The offence of adultery is non-cognizable (a case in which a police officer cannot arrest
the accused without an arrest warrant). Also, it is a bailable offence.
Compoundable offence
The offence of adultery is compoundable by the husband of the woman with whom
adultery is committed. Compoundable offences are those where the court can record a
compromise between the parties and drop charges against the accused. [Section 320
CrPC].
Cases
Offence of adultery held unconstitutional: Understanding Joseph Shine v. Union of
India
Sections 497 IPC and 198(2) CrPC insofar it deals with the procedure for filing a
complaint in relation to the offence of adultery, are violative of Articles 14, 15(1) and
21 of the Constitution, and are therefore struck down as being invalid, Joseph
Shine v. Union of India, 2018 SCC OnLine SC 1676.
This Note hereinafter discusses various observations of the Supreme Court in Joseph
Shine case.
Object
The object of Section 497 is to preserve sanctity of marriage. The society abhors marital
infidelity.[4]
However, this object does not find favour with the Supreme Court. In Joseph Shine, the
Court observed thus:
“… the ostensible object, as pleaded by the State, being to protect and preserve the
sanctity of marriage, is not, in fact, the object of Section 497 at all …”
It was further observed that the sanctity of marriage can be utterly destroyed by a
married man having sexual intercourse with an unmarried woman or a widow which is
not penalised by the legislature. Also, if the husband consents or connives at the sexual
intercourse that amounts to adultery, the offence is not committed, thereby showing that
it is not sanctity of marriage which is sought to be protected and preserved, but a
proprietary right of a husband.
History
Section 497 is a pre-constitutional law which was enacted in 1860. At that point of time,
women had no rights independent of their husbands, and were treated as chattel or
“property” of their husbands. Hence, the offence of adultery was treated as an injury to
the husband, since it was considered to be a “theft” of his property, for which he could
proceed to prosecute the offender.
The first draft of the IPC released by the Law Commission of India in 1837 did not
include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital
infidelity was a private wrong between the parties, and not a criminal offence. The
views of Lord Macaulay were, however, overruled by the other members of the Law
Commission, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
Ingredients
In order to constitute the offence of adultery, the following must be established:–
(i) Sexual intercourse between a married woman and a man who is not her husband;
(ii) The man who has sexual intercourse with the married woman must know or has
reason to believe that she is the wife of another man;
(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount
to rape;
(iv) Sexual intercourse with the married woman must take place without the consent or
connivance of her husband.
After stating the ingredients as mentioned above, the Supreme Court in Joseph
Shine goes on to discuss the vice of unconstitutionality inherent in the offence of
adultery, as may be seen presently.
Who may file a complaint
Only husband of the woman with whom adultery is committed is treated as an aggrieved
person and only he can file a complaint. However, in his absence, some other person
who had care of the woman on his behalf at the time when such offence was committed
may file a complaint on husband’s behalf if the court allows. [Section 198(2) CrPC]
In Joseph Shine, this was held to be arbitrary and violative of constitutional guarantees
as is discussed below.
Woman has no right to file a complaint
A wife is disabled from prosecuting her husband for being involved in an adulterous
relationship. The law does not make it an offence for a married man to engage in an act
of sexual intercourse with a single woman, Joseph Shine v. Union of India, 2018 SCC
OnLine SC 1676.
Who can be prosecuted
It is only the adulterous man who can be prosecuted for committing adultery, and not
the adulterous woman, even though the relationship is consensual. The adulterous
woman is not even considered to be an abettor to the offence. Woman is exempted from
criminal liability.
Presence of an adequate determining principle for such classification was doubted
in Joseph Shine.
Woman treated as property of man
Historically, since adultery interfered with the “husband’s exclusive entitlements”, it
was considered to be the “highest possible invasion of property”, similar to theft.[5]
On a reading of Section 497, it is demonstrable that women are treated as subordinate
to men inasmuch as it lays down that when there is connivance or consent of the man,
there is no offence. This treats the woman as a chattel. It treats her as the property of
man and totally subservient to the will of the master. It is a reflection of the social
dominance that was prevalent when the penal provision was drafted, Joseph
Shine v. Union of India, 2018 SCC OnLine SC 1676.
Section 497 violates Articles 14 [Equality before law]
Section 497 treats men and women unequally, as women are not subject to prosecution
for adultery, and women cannot prosecute their husbands for adultery. Additionally, if
there is “consent or connivance” of the husband of a woman who has committed
adultery, no offence can be established. The section lacks an adequately determining
principle to criminalise consensual sexual activity and is manifestly arbitrary and
therefore violative of Article 14, Joseph Shine v. Union of India, 2018 SCC OnLine SC
1676.
Section 198(2) CrPC also violates Article 14 [Equality before law]
Section 198(2) CrPC does not consider the wife of the adulterer as an aggrieved person.
The rationale of the provision suffers from the absence of logicality of approach and
therefore it suffers from the vice of Article 14 of the Constitution being manifestly
arbitrary, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
Violation of Article 15(1) [Prohibition of discrimination]
Article 15(1) prohibits the State from discriminating on grounds only of sex. A husband
is considered an aggrieved party by the law if his wife engages in sexual intercourse
with another man, but the wife is not, if her husband does the same. Viewed from this
angle, the offence of adultery discriminates between a married man and a married
woman to her detriment on the ground of sex only. The provision is discriminatory and
therefore, violative of Article 15(1), Joseph Shine v. Union of India, 2018 SCC OnLine
SC 1676.
Violation of dignity of woman and Article 21 [Right to life]
Dignity of the individual is a facet of Article 21. Section 497 effectually curtails the
essential dignity which a woman is entitled to have by creating invidious distinctions
based on gender stereotypes which creates a dent in the individual dignity of women.
Besides, the emphasis on the element of connivance or consent of the husband
tantamount to the subordination of women. Therefore, the same offends Article
21, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
Violation of right to privacy and right to choose
This Court has recognised sexual privacy as a natural right, protected under the
Constitution. Sharing of physical intimacies is a reflection of choice. To shackle the
sexual freedom of a woman and allow the criminalisation of consensual relationships is
a denial of this right, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
Married woman’s sexual agency rendered wholly dependent on consent or
connivance of husband
A man who has sexual intercourse with a married woman without the consent or
connivance of her husband, is liable to be prosecuted for adultery even if the relationship
is based on consent of the woman. Though granted immunity from prosecution, a
woman is forced to consider the prospect of the penal action that will attach upon the
individual with whom she engages in a sexual act. To ensure the fidelity of his spouse,
the man is given the power to invoke the criminal sanction of the State. In effect, her
spouse is empowered to curtail her sexual agency, Joseph Shine v. Union of India, 2018
SCC OnLine SC 1676.
Section 497 denudes woman’s sexual autonomy
Section 497 denudes a woman of her sexual autonomy in making its free exercise
conditional on the consent of her spouse. In doing so, it perpetuates the notion that a
woman consents to a limited autonomy on entering marriage. The enforcement of forced
female fidelity by curtailing sexual autonomy is an affront to the fundamental right to
dignity and equality, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
Opposed to “constitutional morality”
It is not the common morality of the State at any time in history, but rather constitutional
morality, which must guide the law. In any democracy, constitutional morality requires
the assurance of certain rights that are indispensable for the free, equal, and dignified
existence of all members of society. A commitment to constitutional morality requires
enforcement of the constitutional guarantees of equality before the law, non-
discrimination on account of sex, and dignity, all of which are affected by the operation
of Section 497, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.
Premised on sexual stereotypes
Section 497 is premised upon sexual stereotypes that view women as being passive and
devoid of sexual agency. The notion that women are ‘victims’ of adultery and therefore
require the beneficial exemption has been deeply criticized by feminist scholars, who
argue that such an understanding of the position of women is demeaning and fails to
recognize them as equally autonomous individuals in society[6], Joseph Shine v. Union
of India, 2018 SCC OnLine SC 1676.
Breakdown of marriage
In many cases, a sexual relationship by one of the spouses outside of the marriage may
lead to the breakdown of marriage. But often, such a relationship may not be the cause
but the consequence of a pre-existing disruption of the marital tie, Joseph
Shine v. Union of India, 2018 SCC OnLine SC 1676.
Case of pending divorce proceedings
Manifest arbitrariness is writ large even in case of a married woman whose marriage
has broken down, as a result of which she no longer cohabits with her husband, and
may, in fact, have obtained a decree for judicial separation against her husband,
preparatory to a divorce being granted. If during this period, she has sex with another
man, the other man is immediately guilty of the offence, Joseph Shine v. Union of
India, 2018 SCC OnLine SC 1676.
Whether adultery should be treated as a criminal offence?
Adultery is basically associated with the institution of marriage. Treating adultery an
offence would tantamount to the State entering into a real private realm. Adultery does
not fit into the concept of a crime. It is better to be left as a ground for divorce, Joseph
Shine v. Union of India, 2018 SCC OnLine SC 1676.
International perspective
International trends worldwide indicate that very few nations continue to treat adultery
as a crime, though most nations retain adultery for the purposes of divorce laws, Joseph
Shine v. Union of India, 2018 SCC OnLine SC 1676.
Why did the Supreme Court not wait for the legislature and itself strike down the
provisions?
These sections are wholly outdated and have outlived their purpose. Maxim of Roman
law, cessante ratione legis, cessat ipsa lex [when the reason of the law ceases, the law
itself also ceases], applies to interdict such law. Moreover, when such law falls foul of
constitutional guarantees, it is Supreme Court’s solemn duty not to wait for legislation
but to strike down such law, Joseph Shine v. Union of India, 2018 SCC OnLine SC
1676.
Adultery continues to be a ground for divorce There can be no shadow of doubt that
adultery can be a ground for any kind of civil wrong including dissolution of
marriage, Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

ADULTERY A GROUND OF DIVORCE

Grounds for divorce on the basis of adultery is mentioned under section 13(1)(a) of
Hindu marriage act,1955 which states that any marriage before or after the
commencement of this act shall be dissolved by a decree of divorce on the ground that
the other party had voluntary sexual intercourse with any person other than his or her
spouse after the marriage. The following are the cases on the basis of which adultery
as a ground of divorce can be analysed: -

Earnest John White vs. Mrs. Kathleen Olive White and Others (AIR 1958 SC 441): -
In this case the husband filed a decree of divorce on the grounds of adultery. Trial
court granted the divorce decree but high court reversed the judgement of high court.
The case went on appeal to the Supreme Court. The question before the Supreme
Court in this case was whether just an inclination to have sexual intercourse and
thereby leading to adultery would arise in this case or not by living in one room as the
respondent and the appellant wife stayed in one room for a night. The court held that
her conduct as shown by the evidence clearly justifies that she has committed adultery
and therefore Supreme Court reversed the order of high court and thereby granting the
decree of divorce to the husband.

Hirachand Srinivas Managaonkar Vs Sunanda (AIR 2001 SC 1285): - In this case the
respondent that is the wife filed a petition for divorce seeking judicial separation
against her husband. Accordingly the high court of Karnataka granted a decree for
judicial separation and ordered husband to give maintenance charges to his wife and
daughter. But the husband after two years filed a petition for divorce under section
13(1-A)(a)of the Hindu marriage act, 1955 on the ground that there has been no
resumption of cohabitation between the parties for more than one year after passing
the decree of judicial separation. Hence the question before the Supreme Court was
that whether this can be taken as a ground of divorce even after the husband and the
wife as in this case are living under the same roof even after the passing of the decree
of judicial separation. The court held that husband who continued to live in adultery
even after the passing of decree of judicial separation with his wife will not succeed
for a petition of divorce under section 13(1-A)(a)