DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

BASICS OF LEGISLATION PROJECT

SYNOPSIS
ON

ADULTERY: CHANGING LEGAL AND SOCIAL PERCEPTION

Submitted to: Submitted by:

Dr. Shashank Shekhar Kshitij Pandey
Asst. Professor (Law) B.A. LLB. (Hons) - 1st Semester
Enrollment No. 190101086

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 SYNOPSIS OF THE PROJECT
ON
ADULTERY: CHANGING LEGAL AND SOCIAL PERCEPTION

PREFACE:
Adultery means voluntary sexual intercourse of a married person with person other than spouse.

The legal definition of adultery however varies from country to country and statute to statute.

While at many places adultery is when a woman has voluntary sexual intercourse with a person

other than her husband, at other places adultery is when a woman has voluntary sexual

intercourse with a third person without her husband's consent.

In India only men having sexual intercourse with the wives of other men without the consent of

their husbands is punishable and women cannot be punished even as abettors. In India, under

Section 497 of the Indian Penal Code (IPC), 1860 the offence of adultery was punishable.

In a landmark judgement, in Joseph shine vs. Union of India the Hon’ble Supreme court of

India struck down section 497 as being “unconstitutional” in September 2018.

TENTATIVE CHAPTERISATION:

1. INTRODUCTION

The laws of land must follow the social changes. Accordingly, over the years, many

archaic laws have been struck down by the Indian judiciary and legislature as they

represented the value system during colonial times , not the reality of the present social

ecosystem. The scenario in todays’ society is such that women are socially and

financially independent and they can not be treated as a property of husband. Laws are

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 to be aligned with changed perception of rights of women at par with men. They have

all the right to act on her own free will.

Unlike in other countries, including the industrialised Western countries, where a

majority of the population views adultery as morally unacceptable, in India also

adultery is unacceptable. They, however , have the good sense to recognize that this is

in the realm of personal morality and the state should stay out of it. But the same is not

the case with India. It was a criminal act and an offence punishable with imprisonment

that might extend to five years or with fine or both.

2. Historical Perspective

Though the modern trend is to decriminalize adultery , historically, many cultures have

regarded adultery as a crime. Jewish, Islamic, Christian and Hindu traditions are all

unequivocal in their condemnation of adultery. In most cultures both the man and the

woman are equally punishable. However, according to ancient Hindu law , in ancient

Greece and in Roman law , only the offending female spouse could be killed and men were

not heavily punished.

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

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 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,

3. Legal Provisions in Indian Legislature

According to Section 497 of IPC adultery was a criminal offence. Adultery is an invasion

on the right of the husband over his wife. It is an anti-social and illegal act.

As per law in order to constitute the offence of adultery under section 497, the following

ingredients must be established:

 The wife should have committed sexual intercourse must be committed with

another man;

 The person ought to have the knowledge or have reason to believe that the

woman is the wife of another man;

 The sexual intercourse should be without the consent or connivance of the

husband;

 Lastly, sexual intercourse should not amount to rape.

It was punishable only when the husband files a complaint under Section- 198 (2) of the

Criminal Procedure Code, 1973. The wife had no corresponding right.

4. Case Law Analysis

The Supreme Court in Yusuf Abdul Aziz v Unoin of India held that section 497, IPC is

not ultra vires. It does not offend Article 14 and 15 of the Constitution of India, 1950.The

reasoning given was sex is a sound classification accepted under article 15(3) of the

Constitution. The same was reaffirmed in Sowwmithri Vishnu v Union of India .Similarly in

V. Revathi v Union of India and Ors. the Apex Court declared that section 497 has been so

formulated so as to prevent a husband from filing a suit against his wife for committing

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 adultery. Therefore, neither the law permits the husband to bring an action against offending

wife nor the wife can initiate a suit against the offending husband for being disloyal to them.

A analytical study of various cases that have a remarkable say on the Section-497 (Adultery)

of IPC, particularly focusing on the Hon’ble Supreme Court of India and the various High

Courts of India will be done under this project.

Legal and Social aspects considering the overall opinions that had and have been prevailing,

clubbing them with the personal recommendations and opinions on Section-497 of IPC

would be critically analysed.

5. Research questions
There will be substantial coverage of important research questions. Some of them like:
 How adultery affects the sanctity of marriage?
 How adultery law is biased?
 Is adultery law a vilation of our rights?
And many more

6. Decriminalization of Adultery in Light of Social Change

A five-judge Constitution Bench, led by Chief Justice of India Dipak Misra, in four

separate but concurring opinions held that adultery is not a crime and struck it off the

Indian Penal Code.

Chief Justice Misra, in an opinion for himself and Justice A.M. Khanwilkar, observed

that Section 497 (adultery) of the Code “commands” married couples to remain loyal to

each other.

The detailed analysis of the judgement in changed social perception will be done.

7. Conclusion

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 Adultery on various instances has been criticized for the bias and then questions have

been raised on the equality aspect of the law. The law needs reformation so as to answer

the discrepancies it holds.

Aim and Objective:

A critical analysis of the section would help in evaluation of a range of aspects of the law. By

working on this project, I would be focusing on Adultery as a crime in India and the position of

men and women under the law. Also throwing light on the various aspects of Section-497 of IPC

and to an extent to what the Indian courts have said on the law time to time.

Research methodology:

The research will be done based on the material available on internet. The analytical study of

various facets of adultery in India and other countries will be done on the basis of the

available literature. The analysis will be done through a methodology of finding answers to

specific questions on the subject. .

REFERENCES:

 http://www.legalservicesindia.com/article/2549/Law-of-Adultery-Under-
IPC---A-Critical-Analysis.html
 https://www.scconline.com/blog/post/2019/02/21/adultery-s-497-ipc-and-s-
1982-crpc/
 https://www.thehindu.com/news/national/adultery-not-a-criminal-offence-
as-sc-strikes-down-section-497-of-ipc/article25055245.ece
 https://lawtimesjournal.in/adultery/

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