Decriminalization of adultery: Pros and Cons”

FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILLMENT OF THE COURSE

TITLED

Criminal Law-I

SUBMITTED TO SUBMITTED BY

MS. PREETY ANAND NAME- SHAURYA SHUKLA

ASSISTANT PROFESSOR OF CRIMINAL LAW-I COURSE- B.A.LLB(HONS.)

ROLL NO.- 2160, 3RD SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001

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 DECLARATION BY CANDIDATE

I, hereby, declare that the work reported in B.A., LL.B (Hons.) Project report entitled
“Decriminalization of adultery: Pros and Cons ” submitted at Chanakya National
Law University is an authentic record of my work carried out under supervision of Dr. Preety
Anand. I have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my project work.

NAME: SHAURYA SHUKLA

ROLL NO: 2160

COURSE: B.A. LL.B. (Hons.)

SEMESTER: 3rd

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. PREETY ANAND whose guidance helped me a lot in
structuring my project.
I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed in the present
way.
I would like to extend my gratitude to my parents and all those unseen hands that helped me out
at every stage of the project.

NAME: SHAURYA SHUKLA

ROLL NO: 2160

COURSE: B.A. LL.B. (Hons.)

SEMESTER: 3RD

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 CONTENTS
Declaration by candidate………………………………………………………………....2

Acknowledgement…………………………………………………………………….….3

Aims and Objective……………………………………………………………………....5

Research Methodology…………………………………………………………………...5

Hypothesis………………………………………………………………………………..5

Research Questions……………………………………………………………………….5

Limitations of Study……………………………………………………………………...5

Mode of Citation………………………………………………………………………….6

Introduction……………………………………………………………………………….6

Chapter 1: Historical Background of adultery in India…………………………………...7

Chapter 2: Analysis of precedents………………………………………………………...8

Chapter 3: Highlights of Joseph Shine Case……………………………………………...9

Conclusion: Discussing the pros and Cons………………………………………………12

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 AIMS AND OBJECTIVES

To analyze the problem of rule of law and no fault liability in the novel ‘The Appeal’ by John
Grisham .

RESEARCH METHODOLOGY

This research project is solely based on doctrinal type of research work.

HYPOTHESIS

The Researcher believes that Supreme Court took a righteous decision in Joseph Shine case.

RESEARCH QUESTIONS

 What is the concept of adultery?

 Define the evolution and historical background of adultery?
 Reason for decriminalization of adultery?
 What are pros and cons of decriminalization of adultery?

LIMITATION OF STUDY

The researcher had time limitation while making this project.

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MODE OF CITATION
The researcher has followed 20th edition of Bluebook for citation.

INTRODUCTION

Section 497 of Indian Penal Code provides the law relating to adultery. Adultery is an incursion
on the right of the husband over his wife. It is a misdemeanor against the sanctity of the wedlock
and, an act, which is done by a man. It is a standoffish and illicit act. The Apex Court previously
considered that it cannot be said that in construing the offence of adultery, any constitutional
provision is encroached by curbing the class of wrongdoer to men only.

The previous stand of higher judiciary was that Section 497 of IPC is not paradoxical of Article
21 of the Indian Constitution. But, recently, the Supreme Court has acknowledged 150 years old
law on adultery as unlawful, which treats husband as the master of his wife. It antagonizes the
dignity of a woman. The Court held that husband is not the master of wife. Section 497 of IPC is
categorically and conspicuously arbitrary and absurd because it provides unlimited rights to
husband to deal with the wife as he likes which is very much disproportionate.

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 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 abettor1.

This is an offence against marriage. Adultery is an offence committed by a third person against a
husband in respect of his wife. A married man having sexual intercourse with

(a) An unmarried woman, or

(b) With a widow, or

(c) A married woman whose husband consents to it, or

(d) With a divorced woman2,

1
Soutik Biswas, Adultery no longer a criminal offense in India, 29 Oct 2020, 12:52 AM,
https://www.bbc.com/news/world-asia-india-45404927
2
Id.

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Commits no offence under this section.

Chapter1: Historical background of adultery in India:-

Barring few exceptions of tribal communities, the evolutionary development of family institution
in India portrait patriarchal pattern, and thus, the permissible marital tie prescribe strict
restriction on sexual behavior of married couple, especially of woman. The reflection of such
normative pattern in the sexual activities reflected in many incidences. Formation of permissible
sexual relationship need social sanction and only monogamy, polygamy, polyandry types of
sexual intercourse had social recognition. However, in few societies’ practices like “keep”,
“slave keeping”, “Muta marriage” has also observed as a practice. Thus, one common, though
not universal, feeling has been observed throughout the history about the adultery, that it is
prohibited norms in one or the other form in every form of society. This is to be noted down that
adultery shall be put on different aspects of criminal behavior than other crime mentioned under
the penal statutes. Adultery does not have the grave effect on the society, or rather it does not
pose threat to the peaceful existence of society as in the other cases of crime such as murder,
dacoit, theft, grievous hurt, public tranquility, defamation, rape etc,. The similar is the thing
about the punishment for adultery. It can be argued that the punishment to the person committing
adultery is not and cannot be a remedy for a person aggrieved of adultery. The object of
prosecution for adultery is more often to reach a settlement with the offender at the mercenary
level and seldom to send the offender to jail. In fact this was the very reason why the offence of
adultery did not figure in the very first draft. To this extent, the conditions are not appreciably
different even today. The existence of Section 497 has no apparent affect on society.
Acknowledging this most western countries have decriminalised adultery. It is not a crime in
most countries of the European Union, including Austria, the Netherlands, Belgium, Finland,
Sweden and even Britain from whom we have borrowed most of our laws.11 In the United
States, in those states where adultery is still on the statute books, offenders are rarely prosecuted.
However, it still remains part of discussion in this research paper that whether adultery shall be
made punishable at all in 21st century or it shall be dealt in the like manner such as other western
countries by decriminalizing it. Historically in India, ‘adultery’ had been considered as an anti-
social activity and prohibited by law. However, the concept and understanding about the adultery
in ancient period and modern period is little bit different, and punishment also differs. The

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ancient code of Manu merely provided for varying range of punishments for offence of adultery
ranging from simple repentance to the ghastly burning of the offender3.

Chapter 2: Analysis of precedents:-

Yusuf Aziz v/s State of Bombay:

The adultery law first came under challenge in 1951 in this case. Petitioner contended that the
adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of
the Constitution.

Three years later in 1954, the Supreme Court ruled that Section is commonly accepted that it is
the man who is the seducer, and not the woman. The Court stated that women could only be a
victim of adultery and not a perpetrator of the crime under Section 4974.

Sowmithri Vishnu v/s Union of India:-

The Supreme Court held that the section is not discriminatory between man and woman, i.e. an
under inclusive definition is not necessarily discriminatory. It does not offend either Article 14 or
15 of the Constitution.

The 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 husbands5.

V. Revathi V/S Union Of India:-

3
Disha Chaudhary, Decriminalization of Adultery, 29 Oct 2020, 12:56 AM, https://www.scobserver.in/beyond-the-
court/cases-that-shaped-india-in-2018-5-decriminalisation-of-adultery
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Yusuf Abdul Aziz vs The State Of Bombay 1954 AIR 321, 1954 SCR 930
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Smt. Sowmithri Vishnu vs Union Of India & Anr 1985 AIR 1618, 1985 SCR Supl. (1) 741

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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 sword6.

Besides, these above judgments, there were two more important views in connection with
adultery law.

The Law Commission of India Report of 1971 (42nd report) and the Malimath Committee on
Criminal Reforms of 2013 recommended amendment to the adultery law. Both argued to make
Section 497 of the IPC gender neutral.

The offence of adultery reflects discrimination. It rests in larger part on the idea that a woman is
the property of the male. An analysis of Section 497 along with various observations by the
Supreme Court and High Courts, bring us to the conclusion that only a man can commit adultery.
The married woman who is involved in the conduct is not punishable as the adulteress, because
she is treated as a victim, not as the author of the crime, because she has no entity and she is a
non-person. The section negates the free will of the woman in adulterous conduct and does not
concern itself with the intentions behind her act. This is probably because the woman is looked
down upon as an object, as an inanimate property, whose rights are almost transferable.

Chapter 3: Highlights of Joseph Shine Case: -

In December 2017, Joseph Shine filed a petition challenging the validity of Section 497. The
three-judge bench, headed by the then-Chief Justice of India, Dipak Mishra, had referred the
petition to a five-judge Constitution Bench, which comprised of Dipak Mishra, and Justices R F
Nariman, A M Khanwilkar, DY Chandrachud and Indu Malhotra, admitting that the law seem to
be archaic. While hearing the matter previously, the Court had observed that the law seemed to
be based on certain societal presumptions. In four separate and concurring judgments, the Court

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V. Revathi vs Union Of India & Ors 1988 AIR 835, 1988 SCR (3) 73

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struck down the law and declared that the husband is not the master of his wife. However,
adultery still remains a civil offence. It can be a ground for divorce. The judgment directly blows
the archaic and patriarchal law in our country7.

The Judgment held the following things:-

Section 497 Is Archaic And Is Constitutionally Invalid:

Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the
encroachment on her right to life and personal liberty by adopting a notion of marriage which
subverts true equality. Sexual autonomy is a value which is an integral party and falls within the
ambit of personal liberty under Article 21 of India Constitution. Respect for sexual autonomy is
established only when both the spouses treat each other with dignity and equality. This section is
a denial of substantive equality in that it reinforces the notion that women are unequal
participants in a marriage, incapable of freely consenting to a sexual act in a legal order which
regards them as a sexual property of their spouse. In this way, it is violative of Article 14. It is
based on gender stereotypes and violates the non-discrimination clause of Article 15. Besides,
the emphasis on the element of connivance or the consent of the husband tantamount to the
subordination of the women. Therefore, it clearly offends Article 21 of the Constitution8.

Section 497 To No Longer Be A Criminal Offence:

A crime is something which is committed on the society as a whole, while adultery is more of a
personal issue. Adultery dosen’t fit into the concept of the crime as that would otherwise invade
the extreme privacy sphere of a marriage. However, it continues to stand as a civil wrong and a
ground for divorce. What happens after adultery is committed should be left to the husband and
wife to decide as it is something which should only involve their personal discretion. Hence,
declaring adultery as a crime would somehow creep injustice into the system9.

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Decriminilisation of Adultery, 29 Oct 2020, 1:03 AM, https://blog.nextias.com/decriminalisation-of-adultery
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Joseph Shine vs Union Of India WRIT PETITION (CRIMINAL) NO. 194 OF 2017
9
Id.

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A Husband Is Not The Master Of His Wife:

The judgment places reliance in the fact that women should not be considered as the property of
their husbands or fathers, for that matter, anymore. They have an equal status in society and
should be given every opportunity to put their stance forward10.

Section 497 Is Absolutely And Manifestly Arbitrary:

It is absolutely and manifestly arbitrary and irrational because it confers a license on the husband
to deal with his wife, as he likes which is extremely excessive and disproportionate. The
provision of Section 497 of IPC does not enable the wife to file any criminal prosecution against
the husband.

 The Supreme Court has acknowledged 150 years old law on adultery as unconstitutional,
which treats husband as the master of his wife. The then Chief Justice of India declares,
the adultery law is arbitrary and offends the dignity of a woman.
 The Supreme Court asserted that adultery can be a ground for civil issues such as
dissolution of marriage however, it cannot be a criminal offence. Adultery might not be
the cause of an unhappy marriage however, it could be the result of an unhappy marriage.
 Along with Section 497 of IPC, Section 198 of CrPC is also declared unconstitutional
thereby decriminalizing the offence of adultery. Justice DY Chandrachud asserted that,
the history of Section 497 reveals that the law on adultery was for the benefit of the
husband, for him to secure ownership over the sexuality of his wife. It was aimed at
preventing the woman from exercising her sexual agency.

Conclusion: Discussing the pros and cons:-

Pros:-

10
Id.

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  This law is an archaic law as it doesn’t provides the women with their right to file a
complaint against their husbands. So it is a step towards gender neutrality to struck down
such arbitrary law.
 This law always treated a married woman as his husband’s chattel and nothing more than
that which is highly derogatory.
 Strucking down this law will give a woman freedom to exercise her sexual agency.

Cons:-

 It will encourage extra-marital affairs leading to conflicts in families. 

 It may lead to more number of divorce cases. 
 It may have a negative impact on children in case of separation between wife and
husband. 
 Some experts think that it will destroy the ancient institution of marriage and culture in
India as it promotes westernisation. 

 The researcher’s Standpoint:- The researcher believes that supreme court took a
righteous decision in Joseph Shine case. Section 497 of IPC was an archaic law
which promoted gender inequality and to build an egalitarian society, a country
needs gender neutral laws. This decision will promote gender equality and remove
the upper hand which male had on their female counterparts. So, the researcher
supports the decision of honourable apex court.

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